Finish Commercial / Start Obscenity

Media Law - Thursday
(finish Commercial Speech, get into Obscenity law
"Read and in your head" by Tuesday! Test is Thursday

MAKE SURE YOU UNDERSTAND THE CENTRAL HUDSON the 4 part test came from this case..


Competitor Remedies
Lanham Act: Section 43(a) allows for federal civil lawsuits based upon both false advertising and false endorsements. (1946)
[ allows ME to stop HER.. not really a gov't shutdown]
Not only protects trademarks. . but also false advertising.

Accurate and fair comparative ads are legal and encouraged.
1. truthful
2. objective (able to be substantiated)
3. reliable independent testing services
4. results of the substantiation made available if necessary
5. present comparison fairly
6. avoid knocking competitors business practices and stick to product comparison

Racketeering

RICO


OTHER FEDERAL REGULATIONS

Children's Programming:

1990 Children's Television Act
limits commercial time during kid tv

2006 added rule that prevents website addresses in programming if website sells a product. Website can be displayed only if:
1. offers program related content
2. not for commercial purpose
3. clearly labeled for commercial and non-commercial menus
4. not used for e-commerce


Product Based Programming
Is only an ad if there is little distinction between ad and commercial.
Requires a "throw" to commercial break so kids know what's coming is a commercial


Sponsor Identification

Broadcast Advertising

Advertising time for regular programming is not restricted. FCC claims market will regulate itself.

Cigarette advertising is banned, liquor advertising is regulated.

Programming produced elsewhere and given to stations must be identified

Drug advertising regulated. Drug ads must:
1. include toll free number for more information
2. state that detailed information brochures available
3. state that pharmacists can supply info
4. include website address



##SKIPPED##
Personal Data

Principles of Fair Information Practices - to control personal data:

Notice - can't collect data before disclosing policy of distribution

Choice - consumers must be given options on how info used

Access - consumers need access to view and check accuracy of personal data

Security - collectors must take reasonable steps to ensure safety of info
## ^^^ ##


Lotteries and Contests

Lotteries - Three Elements:
1. Prize
2. Chance (luck, not skill, determines the winner)
3. Consideration (effort or expense required of participant)

Contests
Can conduct and advertise contests if all three lottery elements NOT present. If only TWO elements present, it is a contest.
"No Purchase Nessicary"

Money
Government can control how money pictured in advertising


MEDIA RIGHT TO REFUSE ADVERTISING
The media have a constitutional right to refuse advertising

***Except Policital Ads: Section 312!!*** or 315...


SELF-REGULATION
Most effective way to regulate advertising is self-regulation.


What gives commercial speech protection in the first amendment?



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OBSCENITY


Obscenity - not protected
OFFENSIVE and lacking and social value
"so what is offensive? whatever the court says it is"

Pornography - protected
generic term for sexually explicit material

Indecency - protected
less graphic and/or erotic than obscenity
"Indecency doesn't really involve any "action" for a lack of a better term" - Dr. Nichols
More Imagery

Obscenity is a STATE law!

1873 - Comstock Act - Suppression of obscene literature through mail. Comstock determined what was obscene.
[1st obcitity law that was passed...national, hmm]

The Hicklin Rule (pre-1957) - a statement that said, Obscene if it has tendency to deprave and corrupt those whose minds are open to such immoral influences.
[hard to enforce]

Roth-Memoirs Test (1957)
1. the dominate theme of the material taken as a whole must appeal to the prurient interest in sex.
2. the material is patently offensive because it affronts CONTEMPORARY COMMUNITY STANDARDS relating to the description or representation of sexual matters.
3. The material is UTTERLY WITHOUT REDEEMABLE SOCIAL VALUE.

The Miller Test (1973)
An average person, applying contemporary local community standards, finds the work, taken as a whole, appeals to prurient interest.

The work depicts in a 'patently offensive" [actually disturbing, "with no stars..three of them to be exact"] way sexual conduct specifically defined by applicable state law

The work in question lacks serious Literary, artistic, political, or scientific value (SLAPS test)

Pope v. Illinois (1987)
Changed "average person" to "reasonable person."
[still called the miller test, despite this little change]

"There are way more offensive magazines than PlayBoy..AssMasters? You can do the math" - Dr. Nichols Patenly offensive, where everyone is like "really? uh! who wants to see that?!"

###

SLAPS TEST
Serious Value
'Could' someone (not does) ###

Minors
1968 Ginzburg v. New York
Supreme Court determined that "girlie" magazines that were legal to sell to adults COULD be restricting from being sold to minors.
+ Changed "average person" to "appeals to purvian intrest of a minor"... protect the CHILLLLREN

1982 - New York v. Ferber
Ruled that the Miller test does not apply to child pornography
[child porn is not protected]


Indecency:
Is whatever the FCC says is indecent, at any given moment in time.

Indecency doesn't necessarily appeal to the prurient interest, so doesn't necessarily pass the Miller test.