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Comm Law Test 3
Terms in this set (33)
Deceptive Advertising and POM:
SCOTUS says that POM's claims saying it helped deal with erectile dysfunction and heart disease don't have any evidence to back it up. Thus, the court gave competing companies more authority to monitor them for false claims.
Allows companies to sue competitors for misleading products. Consumers can't invoke this act to sue. The Attorney General's office can help you do this.
POM v. Coca Cola
SCOTUS ruled that POM could sue Coca Cola over a deceptive pomegranate drink that actually had less than a full percentage of the fruit in it. Before, companies couldn't sue each other because the FDA used to be considered the highest authority on the matter.
How can Shield Laws differ?
1. Who (the definition of a journalist).
2. What (confidential source or confidential information).
3. Where (Grand juries, legislative hearings, trials, etc.).
4. If they are "qualified" or "absolute" shield laws.
Qualified shield laws
The government has to demonstrate a great reason for why they are forcing a reporter to cough up their notes.
Absolute shield laws
Journalists can never be forced to give up information.
How many states have a shield law?
Does Missouri have a shield law?
No. Missouri does not have a shield law but recognizes reporter's privilege.
Protects "confidential information provided by confidential sources." There are four items on a checklist before a court can subpoena a reporter's notes:
1. Have all other options been exhausted?
2. What's the importance of protecting confidentiality?
3. Is the info crucial to the other party's case?
4. Whether the plantif has made a prima facie case for defamation (aka there's an open-and-shut case precedent the case falls under).
Branzburg v. Hayes 1972
Reporters can be forced to testify and are not protected by the First Amendment.
Opening ____, not opening argument.
Breaking an oral agreement can open you up for lawsuit (i.e. telling a source the info would be confidential and then burning them).
The blogger spent 226 days in jail when he wouldn't turn over the raw video at a riot. He ended up turning over the video to get out of jail. Wolf raised the question of who is a journalist.
6 Ways to get a fair trial without a gag order
1. Change in venue (or busing in jurors from outside the jurisdiction).
2. Continuance (delay trial).
3. Voir dire: Q&A period in which attorneys can determine if a juror has bias. There are two kinds of strikes to get rid of jurors; peremptory strikes and strikes for a cause. Peremptory strikes can be used by an attorney to get rid of people for whatever reason they want, like sitting in their chair a certain way. However, there has to be a "fair cross section" (i.e. you can't eliminate all women just bc they're female like you used to be able to in Missouri).
There are strikes for a cause. If you can convince a judge that a certain background would cause bias, they will automatically be eliminated (i.e. rape victims may not be able to be fair as a juror on a rape trial).
4. Cautionary instructions: Judge warns jurors not to listen to commentary/talk about the trial at all.
5. Sequester: If avoiding the hype about the trial is too difficult, a sequester could be installed. Jurors are forced to be quarantined for the duration of the trial.
6. Contempt of court: Punished for ****ing with the judge/disobeying rules or orders. You can be thrown in jailed for up to 6 months, fined up to $1,000 or both.
What is the "acid question" in voir dire?
Can the juror set aside the info they've heard outside of the trial to make a decision based ONLY on the info they hear in the court room?
What case applies to broad gag orders?
Nebraska Press Association v. Stuart.
Gag orders can only be applied if it passes the following three-part test:
1. Without the gag order, there would be harmful publicity.
2. There are no alternatives to the gag order.
3. The gag order will be effective (i.e. in a small town, the news of the trial will spread quickly no matter what you do).
It is the _______ to monopolize that gets someone/a company in trouble.
Joint operating agreements (JOAs)
Allows a failing newspaper to merge its advertising and business activities. The reporting and opinion sections have to be separate.
A settlement that the government works out with the defendant of a civil suit. Once a judge puts their stamp of approval on it, it's legally binding.
A consent decree is beneficial because:
1. A defendant can avoid an expensive trial.
2. A defendant doesn't have to admit wrongdoing (it's like saying "no contest.").
3. The evidence presented in trial does not become public.
Clayton Act of 1914
Prohibits corporations from eliminating competition by merging.
How much did the FTC fine Reebok over the ad that claimed its shoes help shape legs?
Can the FTC demand samples?
Yes, the Federal Trade Commission can demand samples/formulas/products to test the validity of a company's claim via scientific tests.
According to the FTC, what are the components of a deceptive ad?
The components of a deceptive ad are as follows:
1. The ad must be "likely" to mislead the consumer.
2. The consumer must be a "reasonable consumer."
3. The deception must be material (i.e. force you to choose a different product).
Fair use doctrine
Would require broadcasts to give both sides of an issue an equal amount of air time out of concern for bias TV-waves. Backed by Congress in 1954, repealed by the FCC in 1987.
Equal Employment Opportunity
It's illegal for an employer to consider race, religion, gender, color or national origin.
SCOTUS struck down ads for _______.
mushrooms, but upheld generic ads for fruit, beef and milk.
In 1976, Virginia lawmakers extended constitutional protection to what?
Purely commercial advertising. This was first extended to prescription drugs.
What are the lottery advertising rules?
You can only advertise for a lottery if you have one in your state.
Most important case on commercial speech. SCOTUS said the ban on energy advertising was too broad.
Central Hudson Test
For commercial speech to be protected by the First Amendment, it must do the following:
1. Must concern lawful activity that isn't misleading.
2. Is there a substantial gov't interest?
3. Does gov't regulation further that interest?
4. Narrow tailoring: Does it fulfill that goal alone?
Fair Use Test
1. Purpose of use: Academic or commercial?
2. Nature of use (Scientific or commercial).
3. Extent of use.
4. Economic impact (did you lose a ton of money?)
FTC can force companies to offer "affirmative disclosures" for products that were deceptive.
Indecency is defined by what part of the Miller test?
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