Media Law - Nov 1
(missed Tuesday)
Political Speech: Regulation of Political Broadcasting
** Section 315 **
If one federal candidate gets time (on air), then all legally qualified candidates get time…well, at least equal opportunity (not specifically time)
1927 and 1934 Communications Act
Equal Opportunities Rule (Sec. 315 of 1934 Act)
-if one legally qualified federal candidate gets time, all legally qualified federal candidates get time
Legally qualified:
1. have publicly announced intention to run
2. candidate meets qualifications for the office
3. must qualify for a place on the ballot or commit to running as a write in candidate
Reasonable Access (Sec. 312)
can’t deny federal candidates access to airwaves
Does NOT trigger equal opportunities rule if:
bonafide: A. newscast
B. news story
C. news documentary
1. is program regularly scheduled
2. broadcasters/ journalists control content
3. content and format based on journalistic judgment, not advancing political career
4. selection of persons to appear based on newsworthiness
D. on the spot coverage of news event
CABLE companies are not responsible, it's CNN that's the responsible.
"it's a big game.. it's a big game…but it's OUR big game…" - Dr. Mary Nichols
Limits on Broadcaster Censorship
-Broadcast station- no control over content of political programming
-Reject programming if evidence of a “clear and present danger”
-Broadcasters not held responsible for libel
Rates and Sponsor ID
Can only charge regular rates or lowest rate
VNR (Video News Release) must identify sponsor
Reasonable Access
Sec 312 requires broadcasters to provide access to airwaves.
-just for federal candidates, not state or local.
Fairness Doctrine
Repealed in 1987 --Required broadcasters to:
1. Present public issues
2. Present opposing/contrasting viewpoints
Zapple Rule
-part of Fairness Doctrine, only part still held.
-If one supporter of a candidate pays for airtime, supporters of opposing candidates must be allowed
-governs advertising not including candidate’s voice or picture.
Personal Attacks and political Editorials
2000 - courts determined no longer in effect.
Still in effect – non-commercial educational channels can’t support candidates.
Lobbying
The right to petition the government.
1995 Lobbying Disclosure Act – must disclose if gifts received
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Commercial Speech
COMMERCIAL SPEECH
1st Amendment and Advertising
Why is this harder? It involves MONEY.
1942 - Valentine v. Chrestensen
Supreme Court determined no protection for “purely commercial speech”
+ Since it's not protected, it better be true.
(+ or illegal)
1976 – Virginia State Bd of Pharmacy v. Virginia Citizens Consumer Council .
+ They wanted access to the cost of drugs, advertise prices.
Supreme Court said pure commercial speech DOES have constitutional protection.
+ You can't "restrain" commercial speech.
The Commercial Speech Doctrine
+ "The process of giving commercial speech, first amendment protection"
Doctrine “born” with Valentine v Christensen case in 1942.
1964 – Times v. Sullivan
Court determined advertising did have some level of 1st Amendment Protection. That political speech should be protected even if it is paid for
+ It was purchased...
1975 – Bigelow v. Virginia – determined advertising abortion services legal
1976 - Virginia State Bd of Pharmacy v. Virginia Citizens Consumer Council FINALLY addressed purely commercial speech. Case involved advertising of legal drugs.
COMMERCIAL SPEECH DOCTRINE: Truthful and non-misleading advertising about lawful goods and services receives an intermediate level of First Amendment protection.
Political Speech Commercial Speech
Falsehood in political speech part of Falsehoods not tolerated and can
marketplace of ideas. Truth will be constitutionally banned
immerge
Cannot promote illegal products
No prior restraint without Can restrain speech for any “important”
“compelling” govt. interest reason (e.g. misleading information)
Cannot compel speech Can require disclaimers, warnings and
other information to clarify claims made in
commercial speech
Even truthful advertising may be prohibited
More opinion based – not Can be verified – so less need to tolerate
easily verified misleading statements.
Four-Part Test (from Hudson Electric case)
(To determine constitutionality of regulating commercial speech.)
1. Eligible for 1st Amendment protection?
2. Substantial government interest in regulation?
3. If yes to both – does the regulation directly advance interest
4. Is the regulation sufficiently narrow.
1. Eligible for protection
A. Were the words paid for;
B. Did they reference a specific product
C. Were they economically motivated
FTC Definition of False or Deceptive Advertising
1. Must be likely to mislead or to confuse the consumer.
2. Must be from the perspective of a “reasonable consumer.”
3. Must be “material” to influence the purchasing decision.
2003 – Can-Spam Act – makes it illegal to send commercial e-mail messages with the intent to deceive recipients about who is sending the message.
2. Legitimate Government Regulatory Interest
Government has to show “legitimate” or “substantial” interest in regulation.
3. Direct Advancement of Government Interest
It’s one thing to say there is an interest in regulating. . .quite another to create regulation that directly advances that interest.
4. Narrowly drawn ban
Restriction must affect ONLY specific advertising
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