Exam 3

Bates vs. State Bar of Arizona

- A United States Supreme Court case in which the Court upheld the right of lawyers to advertise their services. In holding that lawyer advertising was commercial speech entitled to protection under the First Amendment. - ruling = bates won, advertising is protected speech

Comstock Act of 1873

- A federal law adopted in 1873 that prohibits the mailing of "obscene, lewd or lascivious" material. - Initially used to stop mailings concerning contraception and abortion, it was amended in 1876 to ensure the banning of mailing pornographic materials.

the Hicklin rule

- A rule taken from a mid-19th century English case and was used in the US until the mid-20th century. - It defines materials as obscene if they tend to corrupt children. - Material that tends to deprave and corrupt those whose minds are open to such immoral influences was seen obscene, regard less of its artistic or literary merit.

trademarks

- A word, name, symbol or design used to identify a company's goods and distinguish them from similar products other companies make.

Renton vs. Playtime Theatres

- A zoning ordinance prohibited adult movie theaters from being located within 1,000 feet of any residential zone, church, park or school. - Playtime Theatres, Inc claimed that the 1st and 14th Amendments were violated by this city ordinance. - Issue. Did the Renton ordinance violate either amendment? - Ruling. The court held that the zoning ordinance didn't violate the 1st and 14th amendments. They held that the ordinance was a form of time, place and manner regulation, not a ban on adult theaters altogether. They reasoned that the law was not aimed at the content of the films shown at adult motion picture theaters, "but rather the secondary effects of such theaters on the surrounding community.

Bigelow vs. Virginia

- Abortion was just legalized from Roe vs. Wade. - The case was about an advertisement dealing with abortion. - Issue. Can you put an ad for abortion services? - Ruling. Yes, because it appeals to the public interest. - It established 1st Amendment protection for advertising.

Commerce Clause and the First Amendment

- Advertising went from no 1st Amendment protection to limited 1st Amendment protection. - The protection is less than political speech but more than libel and obscenity.

copyright

- An exclusive legal right used to protect intellectual creations from unauthorized use.

Federal Communications Commission

- An independent US government agency that is overseen by Congress and regulates interstate and intrastate communications by radio, television, wire, satellite and cable in all 50 states, the District of Columbia and US territories. - Composed of 5 commissioners who serve 5 year terms. - They are appointed by the President and confirmed by the Senate. - No more than 3 can be from the same political party. - They regulate indecent speech

Candidate Access Rule

- Broadcaster must allow reasonable access or permit the purchase of a reasonable amount of time by a legally qualified candidate for federal elective office on behalf of his candidacy.``

City of Erie vs. Pap's AM

- Can the government regulate what performers wear/don't wear? Pap's A.M. (exotic dancing club) had nude girls and Erie said that this was obscene. - The Supreme Court ruled in favor of the City of Erie because the club could still express the art of exotic dance by not using nudity.

Valentine vs. Chrestensen

- Christensen tried to advertise a business (submarine tours) with a promotional flyer and a political message during WWII. New York doesn't allow you to hand out flyers but he thought he would be protected if he added political speech to it. - The Supreme Court did not pass this and commercial speech is not given the same 1st Amendment rights as political speech.

Intellectual property

- Creations of the intellect and protection is granted to the creators of IP, which include trademarks, copyrights, and patents. - They do not include ideas, they must be written or physical. - IE: Music, lyrics, a book, screenplay, something tangible.

Radio Act of 1927

- Established the Federal Radio Commission, a federal agency charged with issuing and denying radio licenses. - The act had several provisions. The first was that the FRC could not censor radio content. The second was that the public owned the spectrum because the spectrum was considered a public resource.

Harper & Row Publishers vs. Nation Enterprises

- Example of fair use. - Harper & Row had an agreement with Time Magazine to publish President Ford's memoirs. Nation Magazine received the account before Time released it and they were sued for violating the Copyright Revision Act of 1976. - The court held that The Nation's use of verbatim excepts from the unpublished manuscript was not a fair use. - Prior publication of a work pending publication will not be fair use.

Williams-Yulee vs. The Florida Bar

- For her candidacy, Lanell Williams-Yulee solicited campaign contributions. The Florida Bar filed a complaint against Williams-Yulee and alleged that her actions during the campaign violated the rules regulating The Florida Bar. - A judge cannot solicit funds because they shouldn't be in the political business. She violated the bar rules of soliciting funds for campaign but said that law violated her free speech. - The Supreme Court ruled that it didn't violate the 1st Amendment and Florida won.

Commerce Clause

- Gives authority. Gives Congress the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." - Article 1 Section 8 Clause 3 of the US Constitution

Brown vs. Entertainment Merchants Association

- Governor Brown issues that minors must have parents accompanying them to purchase certain video games. - Ruling. You can't regulate violent video games and it's protected by the 1st Amendment. The Supreme Court held that a law banning the sale or rental of violent media games to minors was unconstitutional

Obscenity

- Has no 1st Amendment protection. - The legal definition of obscenity comes from Miller vs. California and material is deemed obscene if it passes the "Miller Test." - Broadcasters are prohibited, by statute and regulation, from airing obscene programming at any time

Fair Use

- In order to establish Fair Use, the courts review: Purpose and character of the use Nature of the copyrighted work Amount (you take) and substantiality of the portion used in relation to the whole work Effect of the use on potential market

"work made for hire"

- Linked to NY Times vs. Tasini case. - Work created when working for another person or company. The copyright in a work made for hire belongs to the employer, not the creator. - The Supreme Court has listed 6 factors the court considers in determining whether a person acted as an employee so that the works were made for hire. (1) The organization's right to control how the work is accomplished. (2) Who owns the equipment used to produce the work? (3) where the work took place. (4) who determined the days and hours worked? (5) Whether there was a long-term relationship between the two parties. (6) who hired any assistants that may have been used and several other factors

copyrightable works

- Literary works (books, articles, etc.) - Musical works, including the words - Dramatic works, including the music - Pictorial, graphics and sculptures - Motion pictures and audiovisual works - Architectural works

Miller vs. California

- Marvin Miller owned a mail order business that distributed pornographic films and books. - Some brochures were sent to a restaurant and were opened by the owner who called the police. - Miller was charged with violating a criminal law related to obscene material and was found guilty.

Miami Herald vs. Tornillo

- Pat Tornillo was Executive Director of the Classroom Teachers Association and a candidate for the Florida House of Rep. - The Miami Herald published two editorials criticizing Tornillo and he demanded that the Herald publish his response to the editorials, but they refused. - He sued under statute 104.38 which granted political candidates criticized by any newspaper the right to have their responses published, but the Herald challenged the statute as a violation of the free press clause. - The Supreme Court ruled that Florida's "right to reply" statute violated the 1st Amendment and prevented state governments from controlling the content of the press. - Most Constitutional protection- newspapers.

1976 Copyright Act

- Primary act that we use today for the copyright area. - Defines copyright as an original work fixed in a tangible medium. Ideas, history and facts may not be copyrighted. Short phrases, titles and advertising slogans may not be copyrighted, though they may qualify for trademark protection.

political programming

- Required that public issues be presented by broadcasters and that each side of the issues be given fair coverage. - The 1949 Rule stated that TV and radio stations had to air programming that discusses political issues and include a variety of views about controversial issues of public importance.

Fairness Doctrine

- Said that radio stations should broadcast various views about public issues (related to political programming). - Provided equal time provisions. - Created by the FCC

pornography

- Sexually oriented material - Has its own special class. - May be regulated.

children's programming

- The Children's Television Act set general requirements for children's programming on broadcast TV stations. - Required TV stations are to provide programming intended for children up to 17 years that meet their "educational and informational needs." - Broadcast TV stations must carry 3 hrs/week of children's programming to meet the intellectual needs of children. - The programming must be at least 30 min. long and air between 7 am and 10 pm.

FCC vs. Pacifica Foundation

- The case that set the standard with indecency. - Facts. The FCC sued the Pacifica Foundation for a broadcast of George Carlin's "Seven Dirty Words" monologue that was heard by a father and his minor son during the day. - Issue. Can the FCC regulate indecent words? - Ruling. Yes, the Supreme Court ruled 5-4 in favor of the FCC because children (special class) were involved.

advertising regulations

- The government may regulate false and misleading/deceptive advertising. - Bait and switch- when you think you're getting something and the store says we're out of that product but you can get this (typically at a higher price). ILLEGAL. - Government may regulate advertising for illegal goods and services like drugs and prostitution. - However, they can also regulate legal goods like alcohol, tobacco, gambling, and medical marijuana.

Net Neutrality

- The principle that holds that ISPs can't charge content providers to speed up delivery of their goods. - All internet traffic is treated equally.

Federal Communications Act of 1934

- This created the FCC (Federal Communications Commission) and established them as an independent federal agency. - The FCC has the power to regulate over-the-air radio and TV. - Spectrum scarcity remains the main reason courts most often give for allowing broadcast regulation.

Sexually oriented businesses

- Where can you put them? They have a right to the business, but they must be kept away from people. - Government can regulate strip clubs, adult video stores and adult theaters. - Government may impose zoning regulations (schools, residential/commercial neighborhoods) and expressive conduct regulations (dancing, tipping, performances)

Commercial speech

Advertising is also called commercial speech. - It does not have the protection of political speech, but it has some protection (unlike obscenity). - 3 factors to make commercial speech 1. Is it an ad? 2. Does it refer to a specific product? 3. Does the speaker have economic motivation for speaking?

Satellite radio, cable, and internet

Cable systems are required to use a portion of their channels to carry local broadcast television stations. - As direct broadcast satellites became a cable competitor, the FCC imposed some cable and broadcast regulations. - The Supreme Court says the internet has full 1st amendment protection. - We can regulate cable but not as much as broadcast. - We can regulate the internet but less than broadcast.

indecency

Can be regulated by the FCC. - A narrow legal term referring to sexual expression and expletives inappropriate for children on broadcast radio and television. - Courts held that indecent material is protected by the 1st Amendment and cannot be banned entirely

FTC corrective remedies

Cease and desist orders, consent orders, substantiation, litigated orders, correct ad, injunctions

Copyright duration

Constitution gives the right to adopt copyright and patent laws for limited time. +70 years after death.

Virginia State Pharmacy Board vs. Virginia Citizens Consumers Council

Deal with commercial speech and prescription drugs. Virginia citizens consumer council challenged a Virginia statue that declared it unprofessional conduct for licensed pharmacists to advertise their prescription surge prices. Court held that the first amendment protects willing speakers and willing listeners equally. The ban was unconstitutional.

Turner Broadcasting System Inc. vs. FCC

Deal with freedom of speech/press in the violation of the 1st amendment. Congress override a presidential veto to enact the cable television consumer protection????

Federal Trade Commission

Est. 1914 with federal protection act. Collects complaints about 100s of issues from data security and deceptive ad to identify theft and do not call violations. Regulation of federal level. 5 commissioners serve 7-10 year terms with no more than 3 commissioners from the same political party. Nominated by president and confirmed by senate.

Roth vs. U.S.

Facts: Landmark obscenity decision! Com stock act. Roth charged with selling obscene, filthy materials through the mail that contained erotic nude photos. Alberta was distributed. Both were prosecuted. Holding: obscenity not protected by the first amendment; more strictly define "obscene" Ruling: SC ruled that these factors are to be considered when deciding on obscenity: Average person, applying contemporary standards. The work as a whole appeals to pudiente interests. The work is utterly without redeeming social values

Citizens United vs. FEC

Non profit organization called citizens united produced a film called Hillary. Attempted to show it prior to 2008 democratic primaries but was prevented because of campaign finance reform laws. Ruling: the Supreme Court Ruled that the free speech provision of the 1st amendment allowed corporations, non profits, and labor unions to make independent expenditures.

FTC preventative remedies

Opinion letters, advisory opinion, industry guides, trade rules, voluntary compliance

Patents

Protects inventions.

New York Times Co. vs. Tasini

Tasini sued media companies for cooyright infringement after articles were placed in electronic databases. SC ruled that Tasini only sold the right for their articles to appear in print. Separate right created when the articles were placed in electronic databases that required approval and compensation.

First National Bank of Boston vs. Bellotti

This was a 1978 U.S. Supreme court case in which the free-speech rights of corporations were defined for the first time.

copyright and trademark infringement

To prove infringement one must prove the work used is protected by a valid copyright, plaintiff owns the copyright, valid copyright is registered with copyright office and there is evidence of directly copying.

Copyright notice

Works published after March 1, 1989 need not include a copyright notice making sure their work isn't lost.

obscenity and children

`Can be a crime- some are civil, some are criminal. Illegal to make or sell child porn. Possessing obscene materials in one's Home is protected but that law doesn't apply to child porn.