The First Amendment Rocks!

Child obesity rates in America have reached historic highs and sexual images of physical perfection are seen in much of today’s advertising with an astound prevalence. Many images seen have been shown to be less than honest, with the bodies of models being airbrushed after capturing the picture to enhance those bodies’s flawlessness.

Imagine a new dietary supplement comes out (note: dietary supplements are not regulated by the FDA) and purports to be advertising to adults only, but the context of the commercials strongly suggest the advertisements are marketing to teens. The ads seem to be preying on teen insecurities and with an epidemic weight problem and increasing pressures in t.v. and magazines to be thin, many teens could be expected to consider to use the product. The product is advertising on air time of shows that are viewed by young adults, but also has a large audience of teenagers.

The product has demonstrated that it is effective in causing effective weight loss, but due to the product genre’s relative lack of regulation and oversight, it did not have to prove itself safe and concerns are being raised that the product may cause long-term detriment to heart health.

Should advertising of this product be regulated?

What established precedents might allow for the regulation of this commercial speech?

What cases in the past could be referenced to help illustrate the issues of this matter?

It was 1972 – a time of feathered hair, rotary-dial phones, and hippies protesting against the Vietnam War.

Yes, it was a long time ago – so don’t feel too bad if you’re a bit confused about the events depicted in “All the President’s Men,” the story of the two reporters who broke the Watergate scandal.

Here is a handy viewing guide that explains some of the background and characters in the film: http://www.jea.org/curriculum/classroom/specialreport.pdf

Here’s a link to an HTML version, if you’d prefer that: http://www.jea.org/curriculum/classroom/atpm.html

Situation:

We’ve all been there before: have bad allergies, had surgery or teeth pulled or some other ailment that required pain killers. For a good portion of Americans, prescription drugs are a part of their every day routine. However, many Americans also have tight financial circumstances that make affording these drugs harder. So, conventional wisdom would be that people would seek to find the cheapest solution they can, right? How would you be able to go about that best? Probably seeing advertised prices by different pharmacies.

Well, in the state of Virginia, pharmacies used to not be allowed to advertise the prices of prescription drugs. The Commonwealth of Virginia said companies that did such would be guilty of “unprofessional conduct.” So what happened?

Legal background:

The Virginia District Court found out that drug prices varied throughout the state, which did not make the citizens of Virginia happy, as they had no way of knowing this. Individual consumers and consumer groups challenges the law, and won the case before the Supreme Court. Justice Harry Blackmun wrote for the majority, saying that while previous cases similar to this one had been ruled on the economic due process clause of the 14th Amendment, and not on free speech grounds. He said that this case was not only about commercial regulation, but also about the free flow of information, essentially saying that commercial free speech is OK, as long as it is distinguished from unprotected forms of speech, such as obscenity.

Questions:

Do you agree with Blackmun’s opinion on “commercial speech,” especially in light of recent rulings granting corporations First Amendment rights?

Should prices for prescription drugs be advertised?

In his dissent, Justice William Rehnquist said that the First Amendment should be limited to political and social issues. Do you agree with this?

1. FACTS OF THE CASE

In the case of the Virginia Board of Pharmacy v.s. Virginia Citizens Consumer Council , the appellees (consumers of prescription drugs in the state of Virginia) filed a suit against the Virginia Board of Pharmacy for violation of the First and Fourteenth Amendment of an already existing Virginia statute stating that advertising or promoting prescription drug pricing information is considered “unprofessional conduct” by any licensed pharmacist. This case was an appeal from the United States District Court for the Eastern District of Virginia. The Virginia statute prohibited any licensed pharmacist from advertising any and all prescription drug price information to anyone because it would be considered “unprofessional conduct” by that licensed pharmacist.

According to the court document on FindLaw, “a three-judge District Court declared the statute void and enjoined appellants from enforcing it.” Though, the case was brought in front of the Supreme Court and was argued on November 11, 1975. In the case, the plaintiffs argued that any licensed pharmacist providing prescription drug prices to anyone was in violation of both the First and Fourteenth Amendments.

When the appeal was taken to the Supreme Court, the court ruled that the Virginia Board of Pharmacy and any licensed pharmacist under that board could not be subject to punishment for providing information on prescription drug prices. JUSTICE HARRY BLACKMUN said this is not mainly an issue of free-speech, but an issue of due process and dealt with prohibiting commercial regulation and the “free flow” of public information. BLACKMUN and his concurring peers stated that “If there is a right to advertise, there is a reciprocal right to receive the advertising …”

The appellees then argued that the speech was not protected under the First Amendment because it was “commercialized speech.” But, BLACKMUN cited Breard v. Alexandria and said, “Since the decision in Breard, however, the Court has never denied protection on the ground that the speech in issue was ‘commercial speech.'” After determining that any pharmacist “advertising” price information only wanted to inform customers how much he or she would be charging them for a drug, BLACKMUN and the majority ruled that this “commercialized speech” is protected under the First Amendment. In closing, BLACKMUN and his concurring justices said that this “commercial speech” is protected under the First Amendment because it deals with the free flow of information that any consumer has the right to be interested in because it is a free market system. Also, the judges said the information being provided in no way is false, misleading or illegal and therefore cannot be prohibited.

2. LEGAL ISSUE

The legal issue in this case is whether or not a pharmacist giving out prescription drug prices to consumers is a violation of the First and Fourteenth Amendments. In making their decision, the members of the Supreme Court looked at these specific circumstances.

According to FindLaw:

1. Any First Amendment protection enjoyed by advertisers seeking to disseminate prescription drug price information is also enjoyed, and thus may be asserted, by appellees as recipients of such information. Pp. 756-757.
2. “Commercial speech” is not wholly outside the protection of the First and Fourteenth Amendments, and the Virginia statute is therefore invalid. Pp. 761-773.
3. (a.) That the advertiser’s interest in a commercial advertisement is purely economic does not disqualify him from protection under the First and Fourteenth Amendments. Both the individual consumer and society in general may have strong interests in the free flow of commercial information. Pp. 762-765.
4. (b.) The ban on advertising prescription drug prices cannot be justified on the basis of the State’s interest in maintaining the professionalism of its licensed pharmacists; the State is free to require whatever professional standards it wishes of its pharmacists, and may subsidize them or protect them from competition in other ways, but it may not do so by keeping the public in ignorance of the lawful terms that competing pharmacists are offering. Pp. 766-770.
5. (c.) Whatever may be the bounds of time, place, and manner restrictions on commercial speech, they are plainly exceeded by [425  U.S. 748, 749] the Virginia statute, which singles out speech of a particular content and seeks to prevent its dissemination completely. Pp. 770-771.
6. (d.) No claim is made that the prohibited prescription drug advertisements are false, misleading, or propose illegal transactions, and a State may not suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information’s effect upon its disseminators and its recipients. Pp. 771-773.

3. DECISION

The Supreme Court ruled that the Virginia Board of Pharmacy (and all of its licensed pharmacists) are not prohibited from providing consumers with price information on prescription drugs.

“The First Amendment, [425  U.S. 748, 772] as we construe it today, does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely.”

4. ANALYSIS

The big question here is whether or not a pharmacist providing price information on prescription drugs is considered “commercial speech” protected under the First Amendment. I work at a pharmacy and personally, I cannot understand why there would be a problem with a pharmacist telling a consumer how much a certain medication would cost. The pharmacist would not be giving out false, illegal or misleading information, he or she would simply just be providing a potential customer with some price information on a drug. The information is truthful and public to the customer and is therefore protected. And, taking HIPAA into account, no personal or private information is being given.

5. QUESTIONS TO CONSIDER

1. What is the significance of this court case?
2. Should states be allowed to regulate whether or not pharmacists can give out price information on prescription drugs? Why? Why not?
3. Can this be related to prescription drug advertisements on radio and television? Some of those commercials tell consumers to contact certain retailers for prices.
4. How about $4 prescription lists? Should any pharmacy like Wal-Mart, Walgreens or Rite-Aid be allowed to advertise cheaper, competitive prices on popular medications?
5. Do you agree with the ruling of this case?

1. Facts of Case

Throughout the 1990’s Nike was criticized for their alleged involvement of appalling labor practices around the world. Therefore, in 1998, Marc Kasky, a resident of California, sued Nike for unfair and deceptive practices under California’s Unfair Competition Law and False Advertising Law. This False Advertising law lets any citizen sue over allegedly false or misleading statements by a business. Kasky claimed that Nike had to make false statements or facts to keep or maintain their sales, regarding the working conditions of which the products are made. Nike’s Corporation appealed the complaint, stating that the respondent’s suit was prevented by the First Amendment. Kasky appealed, and the California Court of Appeal affirmed, holding that Nike’s statements “formed part of a public dialogue on a matter of public concern within the core area of expression protected by the First Amendment.” When the case was taken to the Supreme Court, they concluded that Nike was using “commercial speech,” which they could be punished for using misleading statements to the public so they would still want to buy their products.  However, the Supreme Court refused to decide it.

2. Legal Issue

From FindLaw, it states that the court granted certiorari to decide two questions:

1.  Whether a corporation participating in a public debate may “be subjected to liability for factual inaccuracies on the theory that its statements are ‘commercial speech’ because they might affect consumers’ opinions about the business as a good corporate citizen and thereby affect their purchasing decisions”

2.  Even assuming the California Supreme Court properly characterized such statements as commercial speech, whether the “First Amendment, as applied to the states through the Fourteenth Amendment, permit[s] subjecting speakers to the legal regime approved by that court in the decision below.”

3. Decision

The trial court continued the objection from Nike without leave to amend and entered a judgment of dismissal. The Supreme Court reversed and remanded for additional measures. Lastly, the Supreme Court never entered a final judgment by postponing the decision in this case.

4. Analysis

One of the main issues in this case is trying to find the distinction between corporate and commercial speech. Because of Nike making allegedly false and misleading statements when reacting to criticisms of their labor practices, First Amendment protections can get a bit confusing. An honest mistake and statements that are true but are misleading are conditionally protected. For the First Amendment, the remedy for error is rebuttal, not litigation.

5. Questions to Consider

1. What is the significance of this case?

2. Do you think the False Advertising Law in California is constitutional?

3. What do you think the ruling should be in this case?

1. Facts of the Case

Grokster, LTD. (and other associated companies) had distributed a free software program that served as a peer-to-peer network client – a program that allows users to connect their computers to one another directly and anonymously in order to transfer data. According to observed data, users of this software primarily utilized it to engage in the sharing of copyrighted materials, such as music or movies. According to court record, respondent companies encouraged and promoted the use of their software for this purpose and even profited from client use through the employ of streamed advertising services. Several movie studios (hence referred et al as “MGM”) alleged that Grokster and their associates intentionally distributed their software to serve such purpose, thereby infringing upon their copyrights as held by the Copyright Act. The district courts had ruled in favor of Grokster – their reasoning being that software distributors were not liable for any violations of copyright through the use of their software, as it was the software users responsible for infringement and completely possible to utilize said software for lawful purposes.

2. Legal Issue:

Are companies that openly distribute file-sharing software, encouraging and profiting from the copyright infringement resultant from the use of said software, liable for the offending infringement?

3. Decision:

In a unanimous decision, the Supreme Court held that companies that distributed such software and promoted its use for the infringement of copyright, were indeed to be held liable for any resulting acts of infringement.

4. Analysis:

The court’s decision was largely based on the fact that the software companies involved had advertised their product amongst their users for the purpose of sharing copyrighted materials. According to evidence present during the trial, the software was advertised as an alternative to the previously controversial “Napster” sharing client. This, according to the court, signified explicit intent to engage users in copyright infringing sharing. Also, the court noted that the nature of the developer’s source of revenue – internet ad streaming – was profiting off of increased traffic of potential infringing activities. Because the developer made more money through advertisements as more users connected, promotion of the software as a means to distribute and download copyrighted material was seen as a means to profit off of direct infringement of MGM et al. The Court also referred to a previous case in which Sony had been allegedly responsible for copyright infringement because it produced VCRs – which could be used to record copyrighted television programming. While the idea of “secondary liability” was discussed during that case, the Court held that the VCR was “capable of commercially significant non-infringing uses.” The Court insisted that, due to the nature of the advertisements and revenue source surrounding the file sharing client, that this case was not the same as the precedent.
5. Questions to Consider:

1. 1. What is the significance of this case?
   2. What do you make of the change in legal precedent?
   3. Do you believe that companies that develop the software should be responsible for how users actually use the software? (In this case? How about in general?)
   4. Do you think that this case would be ruled differently today?

Situation

You are a song writer and you hear a song on the radio. You really like the beat! So you use the beat and write an original song without the consent of the original songwriters. Your song becomes an instant hit. So what happens when you come under attack for copyright infringement?

Legal Background

In 1981, Queen and David Bowie released the song “Under Pressure”.  The song reached number one on UK music charts. In 1990, Vanilla Ice released his hit single “Ice Ice Baby” the beat the song was the same as “Under Pressure”. Queen and David Bowie sued the signer for sampling the beat to the song without permission or a license.

Results

This case never went to court as it was clear that Vanilla Ice had stolen the sample without permission. He settled out of court with Queen and David Bowie for an undisclosed but very likely very high amount. “Ice Ice Baby” has been released in many different versions, since then, with all of the legal procedures followed.

Questions to Consider?

What do you think the result would have been if the case went to court?

What is copyright infringement?

Are the songs Under Pressure or Ice Ice Baby now stuck in your head?

Situation:

Let’s be real. Who hasn’t used limewire to download free music?  Many people, at some point, have taken advantage of free music downloading from networks like limewire to save a little money.  It’s only a song, right?

P. Diddy singing his hit song that all those students are downloading illegally.

Legal Background

A similar case to the hypothetical case above actually went to the Supreme Court in 2005 as music sharing became more popular.  In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., several larger music studios discovered that the defendents in the trial, Grokster and StreamCast Networks had distributed software that allowed computer users to share files through peer-to-peer networks. (Basically, these networks are less expensive and more stable, so they are becoming more popular.) The two companies get their revenue by the advertising they stream to users while they are downloading the files (that’s why the case is in the advertising chapter) and the companies do not block any users from using their software to download illegal files, let alone warn people beforehand that they are downloading illegal files.

MGM Studios appeal for reconsideration of the lower court's ruling was eventually granted.

So here’s what happened:  The court decided the outcome of the case with the “Sony law,” which checked if a company is “capable of commercially significant noninfringing uses.”  (They said Sony was because they produced a video recorder so people could watch their recorded videos later at their convenience) Although some of the concurring opinions were different, the court said that the lower courts were at fault for ruling in favor of Grokster.  Instead, the court ruled in favor of MGM because Grokster’s intent was to provide, even encourage copywrite infringement by way of advertising.  Grokster showed a purpose or cause to benefit from third party acts of copywrite infringement.

OK, here’s the situation:

Word Smith has been a musician and songwriter for years. Smith has never hit the “big time,” but has played with different bands over the years and in most of these bands they have played original songs that Smith has written. Smith, however, has never officially sent his songs to the copyright office and received proper copyright status. Instead, Smith puts a cassette tape of his newly written songs into an envelope and mails the parcel to himself. He does this to prove that he has written the song, expecting that if there is ever a question raised about authorship that the post mark on the package will prove he wrote the song before that date.

One day Smith hears a song on the radio by a country singer named Guit Tar-Twang, that he (Smith) had written 10 years before. Smith remembers that a bass player who now plays with Tar-Twang used to play in a band that Smith was a member of about 7 years ago. Smith figures that the bass player must have played the song for Tar-Twang.

Smith sues Tar-Twang for copyright infringement. So…

1. Does Smith have a case?

2. Why or why not?

3. What must Smith prove in order for Tar-Twang to be found guilty of copyright infringement?

1. Situation

There is a broadcasting station and they are unhappy because of all the local broadcasting stations it had to offer. They look at all the regulations and the Cable Act and decide that over time they will just cut off a few local channels at a time. Then in a few years they will be purely cable broadcasting with no local channels included. They think this would fly, but would it?

Legal Background

The case that fits most of this discussion topic would have to be Turner Broadcasting v. FCC. This case pretty much made it a law that the broadcasting companies have to provide local broadcasting channels. The Court upheld the must-carry rules, saying they are content neutral, further a substantial government interest that is not related to suppressing speech and are no more restrictive than necessary.

The Court applied the First Amendment test it uses for print media: If the regulation affects speech because of its content, apply strict scrutiny; if the regulation is content neutral, apply an intermediate standard.   

Questions

Why was this even a big deal?

Do you think this was the right ruling?

Any cases recently that have dealt with this issue? or is this an issue of the past?