New york Times v. Sullivan
Advertising meaning? The first time a case regarding advertising was ruled on by the Supreme Court.
Bigelow v. Virginia
Meaning?- The first time commercial advertising has some limited First Amendment protection.
*Supreme court has defined commercial speech as-speech that promotes a commercial transaction (sales). False advertising is not protected.
Anheuser-Busch v. Schmoke
Meaning?- Baltimore government didn't want children exposed to alcohol ads. Alcohol ads were banned near school zones. This was considered a reasonable fit under the Commercial Speech Doctrine.
Miller v. California
Created the miller test.
Burston v. Wilson
The court ruled it was unconstitutional to ban nudity in movies (drive-in) to prevent child audiences from viewing.
Osborne v. Ohio
Law created that states, only the parents of the child can possess nude pictures of that child.
Erznoznik v. City of Jacksonville
Ashcroft v. Free Speech Coalition
Role of FCC (Federal Communication Commission)
Regulates?- Public airwaves
Business model- Advertisers are attracted to cleaner broadcasts (censored), free of obscenity
FCC v. Fox TV
Question?- Are fleeting expletives covered?
Appeal 2010- The FCC does not have the right to punish fleeting expletives.
Feist Publications v. Rural Telephone Service Co.
Sweat of the Brow Doctrine?- Hard work is its own reward. Facts/Database information is not protected under copyright law. It can only be protected if it is transformed and creative elements are added. Rejected the Sweat of the Brow Doctrine.
Scope, limits and purpose of trademark/copyright
-Copyright is the protection of original creation of an author and the right to profit off of it.
-Copyright law does not differ state-by-state.
-Copyright law is originated in the constitution. The constitutional version of copyright law declares an end-date and the material must eventually become public.
- The purpose of a trademark is to avoid consumer confusion in the marketplace. Trademarks can last indefinitely.
- Trademark is renewed after 5 years and then 10 years, can last forever.
Role of First Amendment and Copyright
Meaning?- The right to know and receive information. If something is copyrighted it belongs to someone.
-Fair Use Test: is created to assist copyright law. Does not always apply if the work is being used for educational purposes. Effect on the market is the most important element of fair use.
*Parody- You distort it so much that is obviously different than the original work. It becomes original work.
-Public Domain: Anyone is free to use it.
-Transformative Use: The more you add/transform it and add your own creative style to it makes it covered.
One no longer needs the copyright logo on their work. Once something is created its copyright covered. But its still suggested to register it and keep the logo.
Definition and limits of indecency and obscenity/statutory construction
- Indecency has First Amendment protection (curse words, nudity).
- Obscenity has no First Amendment protection.
- If something meets the Miller Test, its obscenity.
1) Purpose and character of the use- How is the person violating copyright using the material.
2) The nature of copyright work.
3) Amount/percentage used- The more it was used, the more danger you are of violation. The longer the copyrighted work the less likely you'll be punished.
4) Effect on the market- effecting profit
Does what?- To evaluate if something is obscene.
Why needed?- Its significant because it determines if something should have First amendment protection.
1) Average person, applying contemporary community standards, finds that the work taken as a whole, appeals to the prurient interest.
-Average person: average adult, no kids or overly
-Community standards: state law
-Prurient interests: Having an unusual interest in sex or diapers
2) Works depict in a patently offensive way sexual conduct defined by state law.
-Patently offensive: borderline pornographic material, there is a narrow description/criteria.
3)Work in question lacks serious literary, artistic, political and scientific values (SLAPS).
Role of First Amendment and Indecency
A bit of a contradiction.
FCC Powers, licensing and the First Amendment
Role of FCC (Federal Communication Commission)- Regulates public airwaves, not cable.
-Licensing:Going through the FCC process, need licensing for broadcasting. Stations must renew their license every 8 years.
-Sanctioning:Punishment is fines plus early license renewal.
-Other airwaves?-Current status, should they be regulated by the FCC, congress is debating.
Chilling Effect and broadcast content
It changed by determining that certain curse words should be monitored. When the FCC cannot grant protection from fining(sanctioning) even though harsh words is apart of the plot of the storyline, stations will refuse to broadcast due to fear of punishment. (Saving Private Ryan)
Safe Harbor and Family Hour
Safe Harbor- The special time period of the day that indecent material is allowed on the air.
FCC and Regulation of Children's Programming
Commercial limits, commercial barriers, educational programming, no infomercials
Advertising and the First Amendment
*Advertising is the most heavily regulated form of mass media.
*Every claim in an ad must be able to be substantiated.
*False advertisement is not protected by the First Amendment.
*Commercial advertising has some limited First Amendment protection.
Definition of commercial speech and the Commercial Speech Doctrine
The Commercial Speech Doctrine is- a test to see when the government can come in to regulate commercial speech.
1)Substantial state interest to justify regulation
2)Evidence the regulation advances the interest
3)Reasonable fit between 1 & 2, between state interest and regulation.
Lanham Act and competitor lawsuits
1) What message conveyed?
2) Is it false or misleading?
3) Message injure plaintiff?
Roles of FTC/FDA/FCC/BBB/MPAA
-FTC: Advertising policy, has the power to go after a company, most involved in competitor comparisons
-FDA: Food and drug administration
*Both have powers.
-FCC: Federal Communication Commission, oversees public airwaves.
-BBB: Simply a consumer interest company that collects complaints, has no powers.
-MPAA: is not a government agency. An industry group that rates movies
FTC Remedies to False Advertising
-Consent Agreement: Does not admit they did anything wrong but will abide to the request to dismiss the ad, agreeing to stop the ad due to claims
-Litigation order:When you don't agree to a consent order, then you must go to court. Fighting in court that your claims are true.
-Substantiation:The FTC can make you prove your claim to be true. Corrective Advertising
-TRR:Trade Regulation Results
CAN-SPAM Act and testimonials in advertising
The special rules for ads on the internet.
-No deceptive subject line
-Identity email as an ad
-Monitor what others do on your behalf