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UM / Communications / COM 250 / Who was valentine v chrestensen?

Who was valentine v chrestensen?

Who was valentine v chrestensen?

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School: University of Miami
Department: Communications
Course: Freedom of Expression and Communication Ethics
Professor: Samuel terilli
Term: Fall 2015
Tags:
Cost: 50
Name: COM 250 Final Exam
Description: Here are super detailed notes from class for our final exam!
Uploaded: 12/07/2015
10 Pages 67 Views 8 Unlocks
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Commercial Speech: Notes from Class


Who was valentine v chrestensen?



• Commercial Speech  

o What is purpose of advertising?

▪ Get you to buy something  

▪ What does this say about advertiser?

• They have a motive, trying to get your money  

• How is this different from political speech?

o Political figures also have a motive, they want you to vote  

for them

o Speech motivated by commercial purpose  

▪ We have historically separated commercial speech from poltical speech • But is it really that different? If they both have a motive?

▪ Commercial speech  

• Tainted by elf interest  


What do we do with a speech on public property?



• During the 19th century there was a lot of false advertising  

especially even today  

• False advertisement:

• do we have history of false political speech?  

o Yes we do

o Ie: George bush speech on Iraq, marco rubio also  

• Is it honest mistakes?

o There is a lot of exaggeration in advertising and buffery as  If you want to learn more check out What are the recommendations for exercise during pregnancy and post partum?

well  

o In political speech we also have exaggeration and buffery  

• What is essential in a self government place?

o If we have democracy people need access to information  


In speech motivated by commercial purpose, what is essential in a self government-place?



and ideas, government can’t decide what’s true or not  

because they might be doing it for their own sake  

• Do we need advertisements?

o Advertising affects us at home, its manipulative  

o Draws us to buy something  

▪ IS one more important than the other?

• Chaplinsky Case and categorical exceptions  

• Supreme court ruled advertising as not protected by the first  

amendment at first which meant government can do whatever it  

wanted to advertising  

• It used to be considered a categorical exception  

• Advertising was considered low value form of speech  

o How do we view regulations in this society?

▪ Advertising was very resilient: it could withstand government regulation  because of profit motive, but political speech not so much especially if  minority people  We also discuss several other topics like In world war i, what year the indians were prohibited from making salt?

o Alex Menklendjon

▪ Argued that political speech was highest of value because informed  electorate was important and because as a result we cant regulate any of  this speech  

▪ The voters in a free democracy had to know everything about what they  were and who they were voting for  Don't forget about the age old question of How have relations between muslims and hindus in india changed through time?

▪ He believed even stupid speech is protected because whose to say what  is and isn’t protected  

• We have to tolerate the false ideas  

▪ He rejected the clear and present danger test: said the test was more  dangerous than anything  

▪ Emphasis not on individual but as a greater need for society as a whole  ▪ Political speech at core of first amendment  

• Advantages?

o How to regulate it? Government can prohibit whenever,  

review before, weigh pros and cons?  

▪ Possible but who decides?

o Case: Valentine v Chrestensen

▪ Who was he?  

• Entrepreneur of New York, bought submarine docks and it printed  handbills to advertise tours and city said he cant do this in city  

streets of new York and fired him. He can’t advertise for his boat  • He changed handbills- and made one side political speech (which  was legal) and the other side was his advertising  

• They got him again and went to supreme court  

o The supreme court agreed with the fine, 9-0 because they  We also discuss several other topics like It is a nonwoven fabric from a staple-fiber web or batt, where entanglement by high-pressure water jets provided the bond, what is it?

said advertising has no value at all  

o Case: Pitt press v Pitt Communication and Human Religion

▪ Search online  

o Case: Bigelow v Virginia (1975)

▪ Manage editor accepted advertising for reproductive services  • Including abortion: which was illegal in Virginia and not in New  York, police man arrest him  

• Goes to Supreme Court, which then reverses the decision and say  its advertising that’s truthful, its useful- information people may  want, just because in New York it is illegal and advertisement in  Virginia is legal so it should be legal because has nothing to do  

with New York  

o Case: Virginia State  

▪ Advertisement of prices for prescribed drugs  

▪ In Virginia this wasn’t large amount of pharmacies, it was small and with  no competition: if you put more ads this would cause competition and  make prices go up  

• Virginia didn’t want this

• Supreme Court disagreed and said Virginia shows free flow of  commercial information to public, if we don’t allow competition  we are hurting the country and people  

o Case: Central Hudson Gas and Electric vs PSC 1980 Don't forget about the age old question of Who are the three writers who wrote in the transcendentalist movement?

▪ Regulated utility in New York  

• NY had rule that they can’t run ads promoting use of electricity  o Didn’t want to build more wanted to conserve electricity  

o Central Hudson had ad to buy energy efficient stuff  

o The PSC said no because of regulation  

▪ Nonsense because it was efficient appliances will  

conserve  

• Declared unconstitutional by the Supreme Court:  Don't forget about the age old question of What is web 2.0?

o Advertisement must be truthful for legal activity (legal  

product or service, you cant advertise anything illegal)  

o government interest in regulating must be substantial  

o regulation must directly advance the government interest  

o regulation must be no more extensive than needed to  

achieve government interest  

▪ Corporate Speech  

• When Corporation wants to advocate not related to product  • Belloti Case: no business can advertise to influence its voters  o Supreme Court says business has right to free speech  

▪ Case: Con Edison V PSC (1980)  

• Insert flyers on issues with bills  

• Psc said no- flyers were nuclear plants  

• Supreme Court said they could advertise their position, you don’t  want to read it you have a CHOICE, you can just throw it out  

▪ Case: Bolger v Young Drug Products  

• What about Public Relations? Or speech with commercial motive,  but them to build brand identity” or respond to criticism of  

business or people who run it  

• USPS rule against unsolicited contraceptive ads  

o Informational and promotional not just money  

o Supreme court: the court rejected under four part test  

and said there is no interest in regulating something so  

broadly  

▪ Case: NIKE vs Kasky  

• Public relations campaign against nike- negative publicity,

• Nike does a counter campaign sends advertisements and letters  not advertising based for making money but for defending  

themselves  

• They were then sued for false ads

• Kasky sues nike saying it was false their defenses were false- he  

was afraid it misleads other people- he wanted Nike to say they  

are and admit that they are a piece of shit  

o Not one of these ads specifically mentioned selling so  

how can they sue  

o Nike was just responding to critics in free market place of  

ideas  

• Supreme Court then asked :where does Public Relations stand  

under these tests:

o Is it political speech which is legal all the time or  

advertising which is o

o Supreme court couldn’t decide so just sent back the case

to deal with it in the local courts in California  

▪ To this day we know advertising is different than political speech:  government has not complete but a lot of lee way to regulate this  

advertising  

▪ Political speech however is fully protected  

▪ Public relations: depends on the type of ad, whats protected whats not,  • Property or Place of Expression

o What are your rights? Public Property? Private Property?

▪ Do we do in advance or after now, after we look at setting?  

• The place, manner, or time of place  

▪ IE

• Briana lives in downtown Miami, veteran world war one and is  

opposed to gays in the military  

• She organizes a parade in boston and the local gay rights group  

wants to join the parade?

o Does she have a right to say no, can government say your  

discriminating, shes using government rights and streets  

etc  

o Its part of her first amendment right to choose what she  

wants to do  

▪ The basic idea here is that these types of expressions have to take place  in a location and what can government do to prevent certain things or  put rules  

o how about when the government is actually speaking?

▪ Number one concern: government is so powerful, so much money, so  fear is that government might overwhelm market place of ideas, the  

government is bigger than anything else  

▪ Another concern: we also worry government will abuse its own power to  maintain its power, our fear of propaganda  

• Why allow them to speak?  

o Because cant be affective it it cant speak

o Ie: government needs to engage in communication with  

people to convince them to join the draft  

▪ Doctrine Today: Government cant speak without requiring viewpoint  neutrality  

• Very hard when government speaks because he is using our tax  dollars and money to speak and hold a speech  

o Case: Rust vs Sullivan:  

▪ Government funding of planned parenthood clinics  

▪ Government writes the rules for the doctors and says they can give  advice about health care and information but not about abortion • Patients and doctors sue  

• But government said they are wrong because it’s a government  funded program, if they want to do their own thing they have to  pay  

o Case: Johan vs Live stock  

▪ Look online  

o Case: if there is a government speech in which government wants you to eat  something for example, it can simply just articulate it, it doesn’t have to be  neutral with private speech its different  

o Case: Rosenberg v Rector  

▪ UVA- state university policy on student activities  

▪ They didn’t want to give money to Christian group organization that was  publishing a newspaper with particular point of view  

• Christian organization sued and Supreme Court agreed because  it’s a state university and should be protected by first  

amendment, and they were not being netural because they were  funding other groups just not the Christian group  

• Being racist  

o What do we do with speech on public property?

▪ Ie: a park  

▪ If its private individual then government has to be content neutral with  each one  

▪ WHATEVER RULE HAS TO BE TO ALL PEOPLE ALL APPLY TO ALL  ▪ Certain areas historically opened for expression: public park, sidewalk,  certain streets  

▪ Government has to be content neutral  

• Government could have rules to promote public safety  

▪ Reasonable Time place and manner restrictions  

• Regulation because of content neutral  

• Must leave reasonable alternative for speech to occur  

• Must be narrow to serve significant interest  

▪ We want government efficiency but we sometimes need all channels  ▪ Case: Grayned v Rockford

• Civil right protestors wanted protest at school  

o Discrimination relevant to school  

o City says you cant when in session have a protest  

▪ Protestors sued: but marshal said you don’t have  

right to be their- anti noise ordinance: when school  

in session school has to be able to operate- content  

neutral- not because point of view of speakers  

o Copyright and the first amendment  

▪ Copyright: intellectual property- rights to work created protection  

• Money on your work  

▪ Floyd abrams: lawyer representing new York times in pentagon papers  ▪ Fox vs al franken: fox lawsuit against him: want book stopped  

• it was a prior restraint  

Continued Commercial Speech Notes  

• Fair Use Doctrine

o One of the strategies to balance copyright ownership interest with first  amendment free expression concerns  

▪ Four factors that the court looks at  

▪ When is it fair use most likely  

• Criticism, you write a book and want to quote fifty words from it  

to critique that’s classic fair use  

• If the subject of the satire is what your using, if I’m using  

someone’s song to criticize someone’s TV show that’s unlikely fair  

use  

o Technology and Fair Use  

▪ Before we were born VCR was created  

▪ Case: VCRs: Sony v universal city studios  

• VCR scared Hollywood were afraid people were going to copy  

there shows onto this VCR tape and selling it  

• They challenged this as a copy right infringement, a technology  

that infringed upon their copy right  

• They lost the case  

• They challenged Sony and said their technology is bad because  

people are home recording our shows and not paying us, and  

then they distribute these tapes  

• The studios lost this case because supreme court said: the  

average home owner might not be home to watch something so  

they program it to watch it later, this is fair use—not for

commercial purposes but for their own consumption so it was  

deemed fair use  

• The technology was allowed  

• The whole nature of development of new technology might have  

been different if this case was not denied  

▪ Case: File Sharing Services  

• Music- if its their you can download it- not true there is copyright  

and legal issues  

• Sueing didn’t solve their market problem- but the cases with  

music the clients always lost because it wasn’t for personal use it  

was for selling  

• Grokster Case: file sharing and the supreme court unanimously  

said yes it is also infringement: destruction of the music industry  

etc  

• ABC v Aereo: figured a massive system of dvrs all of which  

downloaded tv content, and you pay a minor fee to them and you  

can get television content without paying for cable: complete  

infringement of copyright of broadcasters that were scared of  

destruction of their business  

o The supreme court: ruled 6-3 that it was an infringement

because AEREO was publicly performing and transmitting  

copyrighted work with no license  

• Technology and the First Amendment  

o Should the technology used to communicate be relevant to our right to  communicate?

▪ How does technological challenges affect our first amendment thinking  ▪ Do our first amendment rights be affected by the media we are using?  ▪ Does it make a difference whether its speech, spoken, written,  

broadcasted, internet?  

▪ Change in this analysis of media and will affect our lives  

o Early History  

▪ Motion Pictures: they were used as mere amusements, like when Edison was around and you saw little horses climbing around  

• Courts said this is like going to the circus: like entertainment and  

its not first amendment speech  

• So it was that motion pictures had no protection which meant city  councils etc could band films for whatever reason  

• This changes in the 50s and 60s but to this day motion pictures  

are protected but seems they are often subject to great deal of  

debate  

▪ Telephone Companies: common carrier- organization that provides the  transmission lines, they don’t get involved in the content, if ramon calls  professor on the telephone and defames joy, joy can sue ramon but she

cant sue the phone company, the phone company has nothing to do at all  with the content

• All carriers get to use it they just have to pay, so the company has  no liability for content  

- Radio: once navy controlled radio for war reasons, anybody who wanted  license for a frequency got a frequency, radio begins to develop in 20s as  industry, its becoming bigger piece of economy the problem becomes signal  interference, one is to close to the other radio, and no one gets clear signal,  so radio industry and others kept going back and forth with congress, to  regulate who gets the frequencies  

o IN 1934 WITH FCC IT CONTINUED THE SAME PROCESS OF  GOVERNMENT NOT DICTATING THE CONTENT BUT WAS DICTATING  AND WATCHING OVER RADIO TO MAKE SURE IT DIDN’T GO TO FAR  OFF THE RAILS TO INTERFERE  

o CREATED PRECEDENT FOR REGULATING BROADCASTING IN A WAY  WE DIDN’T REGULATE THE PRINT MEDIA-

- Fairness Doctrine

o Radio was feared and everybody didn’t want people on right wing or  left wing, communism, socialism, radical labor leaders, it was such a  powerful medium to tell stories in a way people never heard before  

o People worried and as a result the mayflower doctrine: said radio  licensees if you want to keep your license for radio airwaves stay out  of politics and stay out of government, you can cover news, but stay  out of editorializing

o The fairness doctrine: came about 1949- mayflower doctrine  abandoned and the fcc adopted this one

▪ Liberization of radio rules by allowing broadcasters and  

encouraging them to cover issues of public importance  

▪ The fairness doctrine was originaly adopted as liberalizing  the rules applied to broadcasters not as a limitation on them  because in the beginning we didn’t want them involved in  

politics at all  

▪ Required that the broadcast companies- cover issues of public  importance- news, matters of public concern in that  

community- done fairly, and honestly and given appropriate  

consideration of contrasting points of view  

▪ Two related rules  

• Personal attack- if you were attacked and criticized on  

a broadcast show or news show, the broadcaster had  

to give you notice, transcript and opportunity to reply  

• the political editorial rule- if the broadcaster  

editorializes in favor or against a candidate or person  

writing for office- they have to give notice to the  

person running on the other side

o rules adopted by the FCC  

• The FCC: had a general right to enforce these rules but  

not to listen to every radio to see who was complying  

or who was not, wasn’t a censorship

o Red Lion Case  

▪ Rev Billy James giving a crusade doing a  

talk-show and on his talk show the  

reverend is having issue with Fred j  

cook- a writer and Reverand Billy James  

attacked cook for being a communist,  

criminal issues etc, none of which were  

true  

▪ Fred cook went to the red lion  

broadcaster demanded a transcript and  

equal time to reply and they said get  

lost and no to him  

▪ Went to supreme court: radio  

broadcasters challenging the FCC right  

to require that they air equal time even  

d

▪ If you can’t compel someone to salute  

flag, how can you compel us to put time  

for someone else, and the government  

said the difference is broadcasting is a  

government owned industry  

▪ The FCC won and they had to put Fred  

Cook on the radio  

▪ The US government owns the  

electromagnetic spectrum  

• Look at MHerald v Tornillo

o The court highlights the difference between  

print media which was completely unregulated  

and broadcast which was regulated with the  

FCC  

o Overtime there was growing criticism of the  

fairness doctrine

- Courts end up pushing the FCC to repell most of the rules  - Today there is no FAIRNESS DOCTRINE IN THIS COUNTRY  George Carlin Case  

- Dad driving in new York turned down radio and it had the George carlin  routine which had some bad words and the dad was with his son  o What could he have done with this outrage he could have turned off  the radio  

o He filed complaint to FCC

o And the supreme court- the government didn’t fine the radio, but said  will put it in the file- because radio and television are so intrusive that  its harder to avoid them as oppose to a newspaper or magazine we  have greater regulation of their content- including stuff that are  indecent- like shit asswhole and fucks- protected by first amendment  its not polite speech but its protected first amendment speech  o This happened in the middle of the day  

o Do some technologies intrude more greatly?

▪ Public airway over the air so the court felt freer in imposing  some indecency regulation  

▪ The same could not be applied to print because not intrusive  - Dreaded indecency over the airways  

o FCC v Pacifica Foundation  

▪ Safe Harbors- if the broadcasters are doing it at night when  little kids aren’t watching that’s okay

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