COM Law Exam 3 Flashcards
Advertising
Commercial Speech
Advertising does not get 1st Amendment protection
Commercial Speech Doctrine
1942
Commercial Speech Doctrine
pure commercial transaction
Valentine v Christensen
Why is advertising 2nd class speech?
It can be regulated
Tobacco ads highly regulated since 1971
Regulates competition between companies’ advertisements
Federal Trade Commission
1975
Established 1st Amendment protection for advertising
Bigelow v Virginia
1976
Could not advertise price of meds to cut out business aspect of pharmacy
pure commercial transaction
Virginia Board of Pharmacy
Central Hudson Test
Used to determine when commercial speech could be regulated under the 1st Amendment
1. Is this product legal?
2. Government interest?
3. Does regulation work?
4. Narrowly drawn?
does this claim affect the purchasing?
20-25% being fooled
Material Claim
takes care of 90% of complaints
Consent Degree
takes care of the other 10% (mostly)
fine of $10,000 a day if ignored
Cease and Desist
mandatory court order
if disobeyed, jail time will be enforced
Injunction
an activity that doesn’t make a claim, thus can’t be misleading
Puffery
FTCC will look at a campaign and see if it looks ok, but it’s not binding
Advisory Opinion
give a complete copy of the entire campaign to FTCC and if they say ok, it’s binding but you cannot change anything about the campaign if you go ahead with it
Binding Opinion
1931
prior restraint on publication violates freedom of the press
Near v Minnesota
1933
federal government brought charges against book because of racy parts and threatened to block book from being shipped into the US
judge woolsey gave a court opinion upholding the value of the book
US v Ulysses
1868
anything unfit for children
Hicklin’s Test
a publication can be judged for obscenity based on the isolated part of the work considered out of the context
Regina v Hicklin
1957
obscenity is NOT protected under the first amendment
if material is “utterly without redeeming social importance”
Roth v US
Miller Test (p1)
whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest
Miller Test (p2)
material being described must be depicted in a patently offensive manner
sexual conduct must be specifically defined by the applicable state law
Miller Test (p3)
SLAPS test - must lack serious literary, artistic, political, or scientific value (only has to violate one to be considered obscene)
1973
SLAPS Test
Miller v California
1969
helped to establish an implied “right to privacy” in the form of mere possession of obscene materials
Stanley v Georgia
