BUS 136 Chapter 2 Writing Assignment Con Law

Please explain the rationale employed by the Court in deciding Bad Frog Brewery v NY State Liquor Control Authority, (First Amendment-Commercial Speech) which we covered in the lecture. (i.e. what is the test the Court uses to balance the competing interests, what questions did the Court ask?)

And Can you explain the opposite result in the case of MainstreamMarketing v FTC & FCC ?

You have posted copies of both cases

CASE 4.2 . . Bad Frog Brewery, Inc. v. New York State Liquor Authority UnitedStatesCourtoiAppeals,Second W W W\" BACKGROUND AND FACTS . Bad Frog Brewery, Inc, makes and sells alcoholic beverages. Some of the beverages feature labels that display a drawing of a frog making the gesture generally known as "giving the finger." Bad Frog's authorized New York distributor, Renaissance Beer Company, applied to the New York State Liquor Authority (NYSLA) for brand label approval, as required by state law before the beer could be sold in New York The NYSLA denied the application, in part, because "the label could appear in grocery and convenience stores, with obvious exposure on the shell to children of tender age." Bad Frog led a suit in a federal district court against the NYSLA, asking for, among other things, an injunction against the denial of the application. The court granted summary judgment in favor of the NYSLA. Bad Frog appealed to the US. Court of Appeals for the Second Circuit. IN THE LANGUAGE or THE COURT Jon 0. NEWMAN, Circuit Judge: **i* * * * To support its asserted power to ban Bad Frog's labels {NYSLA advances] " * ' the State's interest in "protecting children from vulgar and profane advertis- Ing" h it I . [This interest is] substantial * * * . States have a compelling interest in protecting the physical and psychological well-being of minors ' " * . [Emphasis added] * * " NYSLA endeavors to advance the state interest in preventing exposure of children to vulgar displays by taking only the limited step of barring such displays from the labels of alco- holic beverages. In view of the wide currency of vulgar displays throughout contemporary society, including comic books targeted directly at children, barring such displays from labels for alcoholic bev- erages cannot realistically be expected to reduce children's exposure to such displays to any signicant degree. [Emphasis added] * * * If New York decides to make a substantial effort to insulate children from vulgar dis- plays in some signicant sphere of activity, at least with respect to materials likely to be seen by 3. Under the heading " US Court of Appeals," click on "2nd Circuit Court of Appeals.\" Enter \"Bad Frog Brewery" CASE 4.1 CONTINUED i W.achWWhaf_ in the "Party Name Search" box. and click on \"Search." On the resulting page. click on the case name to access the opinion. CASE CONTINUES it children. NYSLA's label prohibition might well be found to make a justiable contribution to the material advancement of such an effort, but its currently isolated response to the perceived problem. applicable only to labels on a product that children cannot purchase, does not sufce. * ' * A state must demonstrate that its commercial speech limitation is part of a substantial effort to advance a valid state interest. not merely the removal of a few grains of offensive sand from a beach of vulgarity. * i 'k I- "' * * Even if we were to assume that the state materially advances its asserted interest by shielding children from viewing the Bad Frog labels, it is plainly excessive to prohibit the labels from all use, including placement on bottles displayed in bars and taverns where parental supervision of children is to be expected. Moreover, to whatever extent NYSLA is concerned that children will be harmfully exposed to the Bad Frog labels when wandering without paren- tal Supervision around grocery and corivenience stores where beer is sold. that concern could be less inirusively dealt with by placing restrictions on the permissible locations where the appel- lant's products may be displayed within such stores. DECISION AND REMEDY - The US. Court of Appeals for the Second Circuit reversed the judgment of the district court and remanded the case for the entry old judgment in favor of Bad Frog. The N YSLA's ban on the use of the labels lacked a \"reasonable fit\" with the store's interest in shielding minors from vulgarity, and the NYSLA old not adequately consider alternatives to the ban. WHAT IF THE FACTS WERE DIFFERENT? - if Bod Frog had sought to use the offensive label to market toys instead of bear would the court's ruling likely have been the some? Why or why not? THE LEGAL ENVIRONMENT DIMENSION ' Whose interests are advanced by the ban- 7 J 76 UNIT II PUBLIC AND GLOBAL ENVIRONMENT CASE 5.2 Commercial Speech Mainstream Marketing Services, Inc. v. Federal Trade Commission and Federal Communications Commission 358 F.3d 1228, Web 2004 U.S. App. Lexis 2564 (2004) United States Court of Appeals for the Tenth Circuit "The national do-not-call registry offers consumers a jurisprudence. Third, the do-not-call registry is an opt-in tool with which they can protect their homes against program that puts the choice of whether or not to restrict intrusions that Congress has determined to be particu- commercial calls entirely in the hands of consumers. larly invasive." Fourth, the do-not-call registry materially furthers the -Judge Ebel government's interests in combating the danger of abusive telemarketing and preventing the invasion of consumer Facts privacy, blocking a significant number of the calls that Pursuant to enabling statutes, two federal administrative cause these problems. agencies-the Federal Trade Commission (FTC) and the A number of additional features of the national Federal Communications Commission (FCC)-created do-not-call registry, although not dispositive, further the national do-not-call registry. The national do-not-call demonstrate that the list is consistent with the First registry is a list that contains the personal telephone num- Amendment rights of commercial speakers. The chal- bers of telephone users who have voluntarily placed them- lenged regulations do not hinder any business' ability to selves on this list, indicating that they do not want to contact consumers by other means; such as through direct receive unsolicited calls from commercial telemarketers. mailings or other forms of advertising. Moreover, they Commercial telemarketers are prohibited from calling give consumers a number of different options to avoid phone numbers that have been placed on the do-not-call calls they do not want to receive. Namely, consumers who registry. Telemarketers must pay an annual fee to access the wish to restrict some but not all commercial sales calls can phone numbers on the registry so that they can delete do so by using company-specific do-not-call lists or by those numbers from their solicitation lists. The national granting some businesses express permission to call. In do-not-call registry restrictions apply only to telemar- addition, the government chose to offer consumers keters' calls made by or on behalf of sellers of goods or ser- broader options to restrict commercial sales calls than vices. Charitable and fundraising calls are exempt from the charitable and political calls after finding that commer- do-not-call registry's restrictions. Persons who do not vol- cial calls were more intrusive and posed a greater danger untarily place their phone numbers on the do-not-call reg- of consumer abuse. istry may still receive unsolicited telemarketers' calls. The national do-not-call registry offers consumers a Mainstream Marketing Services, Inc., and other tele- tool with which they can protect their homes against marketers sued the FTC and the FCC in several lawsuits, intrusions that Congress has determined to be particu- alleging that their free speech rights were violated and that larly invasive. Just as a consumer can avoid door-to- the do-not-call registry was unconstitutional. The FTC door peddlers by placing a "No Solicitation" sign in his or and FCC defended, arguing that unsolicited telemarketing her front yard, the do-not-call registry lets consumers calls constituted commercial speech that could properly be avoid unwanted sales pitches that invade the home via regulated by the government's do-not-call registry's restrict telephone, if they choose to do so. We are convinced that tions. The separate lawsuits were consolidated for appeal. the First Amendment does not prevent the government from giving consumers this option. Issue For the reasons discussed above, the government has Do unsolicited telemarketing calls constitute commercial asserted substantial interests to be served by the do-not- speech that can be regulated by the do-not-call registry call registry (privacy and consumer protection), the do- restrictions? not-call registry will directly advance those interests by banning a substantial amount of unwanted telemarket- Language of the Court ing calls, and the regulation is narrowly tailored because Four key aspects of the do-not-call registry convince us its opt-in feature ensures that it does not restrict any that it is consistent with First Amendment requirements. speech directed at a willing listener. In other words, the First, the list restricts only core commercial speech i.e., do-not-call registry bears a reasonable fit with the pur- commercial sales calls. Second, the do-not-call registry tar- poses the government sought to advance. Therefore, it is gets speech that invades the privacy of the home, a personal consistent with the limits the First Amendment imposes