Media Law Final

• Commercial speech v. political speech (four major contrasts)

  (1) to regulate political speech there must be compelling interest [national security]

  (2) false political speech allowed, false commercial speech not (3) prior restraints allowed more with commercial speech [porn, gambling, alcohol, tobacco]

  (4) commercial speech can be compelled [Surgeon General's warning of side effects
• Grid of FA protections by content (type of expression) and medium

  (1) Political Speech/Print = Highest

  (2) Political speech in broadcasting/Advertising in Print = Middle

  (3) Advertising/Broadcasting (FCC) = Lowest
• COMMERCIAL SPEECH < __________ (FA protection/value)

  POLITICAL SPEECH
• ADVERTISERS LESS LIKELY TO BE ________

  CHILLED
• COMMERCIAL SPEECH IS _________

  EASIER TO VERIFY
• FTC Act of 1914

  created the FTC (Federal Trade Commission), prohibiting unfair methods of competition, unfair or deceptive acts or practice in or affecting commerce
• Valentine v. Christensen, 1942

  USSC ruled that commercial speech is not protected by the FA, no reason to tolerate false ads-> less important than political speech, advertisers less likely to be chilled, commercial speech easily verifiable
• Times v. Sullivan, 1964

  began as a lawsuit against the paper for an editorial advertisement for MLK against Sullivan, USSC dismissed damages and adopted "actual malice" test
• Bigelow v. Virginia, 1975

  VA could not prohibit ads for abortion, there's a clear public interest, not just an ad.
• Virginia State Board of Pharmacy v. Virginia Citizens, 1976

  kills Valentine as precedent, USSC rules price advertising for meds is expressive and protected but does not give commercial speech blanket protection.
• Advertising categories that CAN be banned

  False advertising, misleading ads, illegal activity, time/place/manner restrictions.
• Compelling v. substantial interest

  compelling is for political speech, substantial is for commercial speech.
• Central Hudson V. Public Service Commission

  in the interest of conserving energy, regulation that prohibited electric utilities from promoting electricity use. The ban violated the FA. The court created a four-part test to determine if government intervention was required in future commercial speech cases.
• Four-part Central Hudson Test (Commercial Speech Doctrine)

  (1) is advertisement eligible for FA protection

  (2) does it have substantial government interest [Michelle Obama healthy lunches],

  (3) is regulation narrowly drawn / reasonably fit

  (4) would regulation directly advance government interest
• Nike v. Kasky, 2003


  Nike accused of employing illegal labor practices, are press releases commercial or political? Cali SC ruled as commercial speech, USSC didn't rule, settled out of court
• Citizens United v. Federal Election Commission, 2010


  corporations have FA rights, they can give to campaign contribution. Viewed as citizens. Pretty ridiculous.
• Commercial speech regulations


  Self-regulation (Lanham Act), Consumer Action (complaints to BBB/Twitter), Government Action (FTC)
• False advertising


  will the expression (ad practice) mislead a reasonable person? If not, it's fine. Think Jack Daniels v. VIP Products, dilution.
• FTC options when acting on advertising, from guidelines to injunctions (7 options)

  cease and desist, substantiation, corrective advertisements, injunction, guidelines, trade rules.
• Defenses for an advertiser

  TRUTH. Deceptive claim is immaterial, not central to campaign/product. FTC used wrong interpretation/another interpretation makes claim or statement true.
• Where did we get the FCC, and why?

  Formed by the Communications Act of 1934 to replace radio regulation functions of the previous Federal Radio Commission. They oversee all interstate and international communications.

  
  

  It regulates structure and is designed to break up communications monopolies. It has changed with spectrum scarcity and the shift to digital.
• Children's programming requirements


  broadcast television stations are required to broadcast at least 3 hours per week of programs that are educational and informative for children aged 16 and younger. Younger than 12, limits on ad time/airing of product placements
• The Fairness Doctrine


  attempted to ensure that broadcast stations' coverage of controversial issues was balanced and fair. Many journalists opposed the policy as a violation of FA. Must accurately reflect opposing views.
• The Equal Time Rule


  requires broadcasters to treat a candidate for the same political office identically to every other candidate for that office.

  
  

  If a radio or television station sells air time to one candidate, it must offer to sell the same amount of time to other candidates.
• Radio Act of 1912

  required all transmitters to be licensed by the government, made broadcast regulation a national duty
• Radio Act of 1927

  primarily designed to license broadcasters and reduce radio interference, benefit to the public and broadcasters to avoid chaos spectrum scarcity
• Communications Act of 1934

  Broadcasters as speakers w/ FA rights, but slightly less than press. Established FCC as an independent government agency to regulate nonfederal government use of the radio spectrum (including television) and interstate telecommunications (wire, satellite, and cable).
• Red Lion Broadcasting Co. v. FCC, 1969

  Fairness doctrine was consistent with the First Amendment, the person who was attacked must give a reasonable opportunity to respond using licensee's facilities
• Herald Publishing v. Tornillo


  Fairness doctrine does not apply to print. newspapers do not have the same obligation to give candidates an opportunity to reply, violating freedom of the press.
• Cable Communications Policy Act of 1984

  Reagan de-regulating the industry, limited monopolies and promoted competition
• Consumer Protection and Competition Act of 1992

  federal law which required cable television systems to carry most local broadcast television channels and prohibited cable operators from charging local broadcasters to carry their signal
• Turner v. FCC, 1994


  court held that "must-carry" provisions were content neutral and not a violation of FA, broadcasters are speakers and can openly decide which messages to carry
• Telecommunications Act of 1996


  first time that the Internet was added to American regulation of broadcasting and telephones, an attempt to deregulate American broadcasting/telecommunications markets due to technological convergence
• Reno v. ACLU, 1997 (again)


  the 1996 Communities Decency act in 1996 that fined for indecent/offensive speech that could be seen by minors was struck by USSC. ACLU won, violation of FA
• COPA


  Child Online Protection Act of 1998 - targeted the Internet transmission of material harmful to minors, USSC found it unconstitutional, determining that it limited the FA rights of adults in the process of protecting minors.
• ABC v. Aereo, 2014

  Court ruled that allowed subscribers to view live and time-shifted streams of on-the-air television on the internet violated copyright laws.
• Fox TV v. FCC, 2012


  FCC received complaints about profanity on awards show, sues Fox under fleeting expletives rule, but Fox won because it was ruled they could not predict words on live TV, FCC encouraged to make more specific rules
• FCC v. Pacifica, 1978

  George Carlin "seven dirty words" on the radio, found by USSC to be indecent but not obscene, so Commission could not ban it but instead restrict broadcasts to certain times of day: unwanted speech in radio/privacy of one's home
• Indecency


  FCC defines indecent speech as material that depics or describes sexual/excretory organs or activities that are patently offensive by contemporary community standards for the broadcast medium.
• Obscenity


  unprotected by the FA: lewd, filthy, disgusting words or pictures