Module 5 homework

Video Software Dealers Ass’n v. Schwarzenegger 556 F.3d 950 (9th Cir. 2009) California passed a statute imposing restrictions and a labeling requirement on the sale or rental of “violent” video games. The legislature stated that it had a compelling interest in passing the statute in order to “prevent psychological or neurological harm to minors who play violent video games.” The statute required that the front of a package of a “violent” video game be labeled with a four-square inch label reading “18.” The Video Software Dealers Association and the Entertainment Software Association challenged the statute on the grounds that it violated their First Amendement rights. The trial court granted summary judgment in favor of the plaintiffs, and the state appealed. CALLAHAN, CIRCUIT JUDGE. Existing case law indicates that minors are entitled to a significant measure of First Amendment protections, that content-based regulations are presumptively invalid and subject to strict scrutiny, and that if less restrictive means for achieving a state’s compelling interest are available, they must be used. The Supreme Court has stated that “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” The State does not contest that video games are a form of expression protected by the First Amendment. It is also undisputed that the Act seeks to restrict expression in video games based on its content. Content-based regulations are presumptively invalid. We ordinarily review contentbased restrictions on protected expression under strict scrutiny, and thus, to survive, the Act must be narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative. The Supreme Court has recognized that “there is a compelling interest in protecting the physical and psychological well-being of minors.” Notwithstanding this abstract compelling interest, when the government seeks to restrict speech “[i]t must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Although we must accord deference to the predictive judgments of the legislature, our “obligation is to assure that, in formulating its judgments, [the legislature] has drawn reasonable inferences based on substantial evidence.” [T]he evidence presented by the State does not support the Legislature’s purported interest in preventing psychological or neurological harm. Nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology as they relate to the State’s claimed interest. None of the research establishes or suggests a causal link between minors playing violent video games and actual psychological or neurological harm, and inferences to that effect would not be reasonable. Even if we assume that the State demonstrated a compelling interest in preventing psychological or neurological harm, the State still has the burden of demonstrating that the Act is narrowly tailored to further that interest, and that there are no less restrictive alternatives that would further the Act. Instead of focusing its argument on the possibility of less restrictive means, the State obscures the analysis by focusing on the “most effective” means….Specifically, the State argues that the ESRB rating system, a voluntary system without the force of law or civil penalty, is not a less-restrictive alternative means of furthering the Legislature’s purported compelling interest. Acknowledging that the industry has implemented new enforcement mechanisms, the State nevertheless argues that the ESRB does not adequately prevent minors from purchasing M-rated games. The State also dismisses the notion that parental controls on modern gaming systems could serve the government’s purposes, arguing that there is no evidence that this technology existed at the time the Act was passed. Further, the State does not acknowledge the possibility that an enhanced education campaign about the ESRB rating system directed at retailers and parents would help achieve government interests. Even assuming that the State’s interests in enacting the Act are sufficient, the State has not demonstrated why less restrictive means would not forward its interests. The Act, therefore, is not narrowly tailored. Based on the foregoing, and in light of the presumptive invalidity of content-based restrictions, we conclude that the Act fails under strict scrutiny review. Finally, we evaluate the constitutionality of the Act’s labeling provision, which requires that the front side of the package of a “violent video game” be labeled with a four square- inch label that reads “18.” Plaintiffs argue that section 1746.2 unconstitutionally forces video game retailers to carry the State of California’s subjective opinion, a message with which it disagrees. Generally, “freedom of speech prohibits the government from telling people what they must say.” Commercial speech, however, is generally accorded less protection than other expression. The Court has upheld compelled commercial speech where the state required inclusion of “purely factual and uncontroversial information” in advertising. Compelled disclosures, justified by the need to “dissipate the possibility of consumer confusion or deception,” are permissible if the “disclosure requirements are reasonably related to the State’s interest in preventing deception of customers.” Unless the Act can clearly and legally characterize a video game as “violent” and not subject to First Amendment protections, the “18” sticker does not convey factual information. Our determination that the Act is unconstitutional eliminates the alleged deception that the State’s labeling requirement would purportedly prevent: the misleading of consumers and retailers by the ESRB age ratings that already appear on the video games’ packaging. Since the Act is invalid and, as a result, there is no state-mandated age threshold for the purchase or rental of video games, there is no chance for deception based on the possibly conflicting ESRB rating labels. In fact, the State’s mandated label would arguably now convey a false statement that certain conduct is illegal when it is not, and the State has no legitimate reason to force retailers to affix false information on their products. Affirmed. Jordan v. Jewel Food Stores, Inc. 743 F.3d 509 (7th Cir. 2014) On the occasion of Michael Jordan’s induction into the Naismith Memorial Basketball Hall of Fame in September 2009, Time, Inc., the publisher of Sports Illustrated, produced a special commemorative issue of Sports Illustrated Presents devoted exclusively to Jordan’s remarkable career. Jewel was offered free advertising space in the issue in exchange for agreeing to stock the magazine in its stores. Jewel accepted the offer and submitted a full-page ad congratulating Jordan on his induction into the Hall of Fame. The ad ran on the inside back cover of the commemorative issue, which was available on newsstands for a three-month period following the induction ceremony. A copy of the ad appears below: To Jordan the ad was not a welcome celebratory gesture but a misappropriation of his identity for the supermarket chain’s commercial benefit. He responded with this $5 million lawsuit alleging violations of the federal Lanham Act, the Illinois Right of Publicity Act, the Illinois deceptive-practices statute, and the common law of unfair competition. Jewel denied liability under these laws and also claimed a blanket immunity from suit under the First Amendment. The district court sided with Jewel on the constitutional defense, prompting this appeal. Jewel maintains that its ad is “noncommercial” speech and thus has full First Amendment protection. Jordan insists that the ad is garden-variety commercial speech, which gets reduced constitutional protection and may give rise to liability for the private wrongs he alleges in this case. As the case comes to us, the commercial/noncommercial distinction is potentially dispositive. If the ad is properly classified as commercial speech, then it may be regulated, normal liability rules apply (statutory and common law), and the battle moves to the merits of Jordan’s claims. If, on the other hand, the ad is fully protected expression, then Jordan agrees with Jewel that the First Amendment provides a complete defense and his claims cannot proceed. The district court held that the ad was fully protected noncommercial speech and entered judgment for Jewel. SYKES, CIRCUIT JUDGE. The parties have agreed that if Jewel’s ad is “noncommercial speech” in the constitutional sense, then the First Amendment provides a complete defense to all claims in this suit. We’re not sure that’s right, but for now we simply note the issue and leave it for another day. With that large unsettled question reserved, we move to the task of classifying Jewel’s ad as commercial or noncommercial speech for constitutional purposes. This is a legal question, so our review is de novo. Commercial speech was initially viewed as being outside the ambit of the First Amendment altogether. That understanding has long since been displaced. Current doctrine holds that commercial speech is constitutionally protected but governmental burdens on this category of speech are scrutinized more leniently than burdens on fully protected noncommercial speech. To determine whether speech falls on the commercial or noncommercial side of the constitutional line, the Court has provided this basic definition: Commercial speech is “speech that proposes a commercial transaction.” It’s important to recognize, however, that this definition is just a starting point. Speech that does no more than propose a commercial transaction “fall[s] within the core notion of commercial speech,” but other communications also may “ ‘constitute commercial speech notwithstanding the fact that they contain discussions of important public issues,’ ” Indeed, the Supreme Court has “ ‘made clear that advertising which links a product to a current public debate is not thereby entitled to the constitutional protection afforded noncommercial speech.’ ” Although commercial-speech cases generally rely on the distinction between speech that proposes a commercial transaction and other varieties of speech, it’s a mistake to assume that the boundaries of the commercial-speech category are marked exclusively by this “core” definition. To the contrary, there is a “common-sense distinction” between commercial speech and other varieties of speech, and we are to give effect to that distinction. Jewel’s ad served two functions: congratulating Jordan on his induction into the Hall of Fame and promoting Jewel’s supermarkets. The first is explicit and readily apparent. The ad contains a congratulatory message remarking on Jordan’s record-breaking career and celebrating his rightful place in the Basketball Hall of Fame. Jewel points to its longstanding corporate practice of commending local community groups on notable achievements, giving as examples two public-service ads celebrating the work of Chicago’s Hispanocare and South Side Community Services. The suggestion seems to be that the Jordan ad belongs in this “civic booster” category: A praise-worthy “fellow Chicagoan” was receiving an important honor, and Jewel took the opportunity to join in the applause. But considered in context, and without the rose-colored glasses, Jewel’s ad has an unmistakable commercial function: enhancing the Jewel–Osco brand in the minds of consumers. This commercial message is implicit but easily inferred, and is the dominant one. There is a world of difference between an ad congratulating a local community group and an ad congratulating a famous athlete. Both ads will generate goodwill for the advertiser. But an ad congratulating a famous athlete can only be understood as a promotional device for the advertiser. Unlike a community group, the athlete needs no gratuitous promotion and his identity has commercial value. Jewel’s ad cannot be construed as a benevolent act of good corporate citizenship. As for the other elements of the ad, Jewel–Osco’s graphic logo and slogan appear just below the textual salute to Jordan. The bold red logo is prominently featured in the center of the ad and in a font size larger than any other on the page. Both the logo and the slogan are styled in their trademarked ways. Their style, size, and color set them off from the congratulatory text, drawing attention to Jewel–Osco’s sponsorship of the tribute. Apart from the basketball shoes, the Jewel–Osco brandname is the center of visual attention on the page. And the congratulatory message specifically incorporates Jewel’s slogan: “as we honor a fellow Chicagoan who was ‘just around the corner’ for so many years.” The ad is plainly aimed at fostering goodwill for the Jewel brand among the targeted consumer group—“fellow Chicagoans” and fans of Michael Jordan—for the purpose of increasing patronage at Jewel–Osco stores. Image advertising is ubiquitous in all media. Jewel’s ad is an example of a neighborly form of general brand promotion by a large urban supermarket chain. What does it invite readers to buy? Whatever they need from a grocery store—a loaf of bread, a gallon of milk, perhaps the next edition of Sports Illustrated—from Jewel–Osco, where “good things are just around the corner.” The ad implicitly encourages readers to patronize their local Jewel–Osco store. That it doesn’t mention a specific product means only that this is a different genre of advertising. It promotes brand loyalty rather than a specific product, but that doesn’t mean it’s “noncommercial.” To wrap up, we hold that Jewel’s ad in the commemorative issue qualifies as commercial speech. This defeats Jewel’s constitutional defense, permitting Jordan’s case to go forward. Reversed. Romeo & Juliette Laser Hair Removal v. Assara I LLC 2016 WL 815205 The parties both operate laser hair removal companies in New York City. Plaintiff possesses a federal trademark for a depiction of the words “Romeo & Juliette” in connection with permanent hair removal and reduction services. Beginning in early 2006, a series of negative comments about the plaintiff’s business appeared on the internet consumer forums HairTell.com (“HairTell”), Yelp.com (“Yelp”), CitySearch.com (“City Search”), and consumerbeware.com (“Consumer Beware”). The posts came from anonymous users who claimed to have used the plaintiff’s laser hair removal services. Among those responsible for these negative posts were certain Assara employees posing as other people who claimed to have used Romeo & Juliette’s services when they had not. Some of the negative posts went on to mention Assana in a good light. Defendants moved to dismiss the action and Plaintiff moved for summary judgment. DENISE COTE, DISTRICT JUDGE. To be actionable under the Lanham Act, comments on internet forums must constitute commercial advertising or promotion. In this circuit, to constitute commercial advertising or promotion under the Lanham Act, a statement must be: (1) commercial speech, (2) made for the purpose of influencing consumers to buy defendant’s goods or services, and (3) although representations less formal than those made as part of a classic advertising campaign may suffice, they must be disseminated sufficiently to the relevant purchasing public. Core commercial speech is “speech which does no more than propose a commercial transaction.” Put another way, commercial speech is “expression solely related to the economic interests of the speaker and its audience.” The defendants’ anonymous comments constitute commercial advertising or promotion. In pursuit of their commercial interests, the defendants repeatedly posted disparaging comments to public fora used by consumers to select laser hair removal services. By anonymously disparaging the plaintiff’s business and simultaneously promoting Assara, the defendants acted in pursuit of their economic interests. To establish a Lanham Act claim, the plaintiff must prove the following four elements. “[T]he plaintiff must first demonstrate that the statement in the challenged advertisement is false.” Falsity may be proven by showing that “(1) the advertising is literally false as a factual matter, or (2) although the advertisement is literally true, it is likely to deceive or confuse customers.” Second, the plaintiff must establish “that the defendants misrepresented an inherent quality or characteristic of the product.” Third, the plaintiff must show that “the defendant placed the false or misleading statement in interstate commerce.” Finally, the plaintiff must show that it has been “injured as a result of the misrepresentation, either by direct diversion of sales or by a lessening of goodwill associated with its products.” Where the statement is literally false, “the court may enjoin the use of the claim without reference to the advertisement’s impact on the buying public.” The plaintiff has shown that defendant Assara, which acted through its employees and officers, as well as defendant Shuman, made false statements about the plaintiff’s business by describing experiences that had not occurred. The statements by Assara and Shuman were literally false as a factual matter since they described persons who were not Romeo & Juliette customers and experiences with the plaintiff’s services that those fictitious customers did not have. In one instance, an Assara employee used his online identity to report a horror story he had purportedly heard. The plaintiff has denied that the episode ever occurred, and the defendants have not offered evidence that it did occur or that the author of the post had in fact heard anyone describe such an incident. Most of these posts concerned essential characteristics of the plaintiff’s business, for instance, physical reactions to its treatments or rudeness by its staff. There is no dispute that posting to internet fora placed the statements in interstate commerce, and that the plaintiff’s business was conducted in interstate commerce. Because the statements were literally false, the plaintiff is relieved of the burden of showing the impact of the statements on its business fortunes. Accordingly, each element of a § 1125(a) violation is established as to defendants Assara and Shuman. Summary judgment granted as to Defendants Assara and Shuman. Problem cases: 1. Ann Bogie attended a comedy performance by Joan Rivers where Rivers told a joke about Helen Keller, who was deaf and blind. This joke offended an audience member who had a deaf son. The audience member heckled Rivers, and the two had a brief but sharp exchange. Immediately after the show, Rivers went to a backstage area closed to the general public. Bogie gained entry to this backstage area and engaged Rivers in a brief conversation. The conversation went as follows: Bogie: Thank you. You are so . . . I never laughed so hard in my life. Rivers: Oh, you’re a good laugher and that makes such a difference. Bogie: Oh, I know. And that rotten guy. . . . Rivers: Oh, I’m sorry for him. Bogie: I was ready to get up and say . . . tell him to leave. Rivers: He has a, he has a deaf son. Bogie: I know. Rivers: That’s tough. Bogie: But he’s gotta realize that this is comedy. Rivers: Comedy. Bogie: Right. Unbeknownst to Bogie, her conversation with Rivers was filmed. The film showed that at least three other persons were present during this exchange. They were all within a few feet of both Bogie and Rivers. The exchange between Rivers and the heckler and Bogie’s conversation with Rivers were included in a nationally distributed documentary titled Joan Rivers: A Piece of Work. Bogie’s conversation with Rivers accounted for 16 seconds in the 82minute documentary. Bogie sued Rivers and other defendants, contending that the filming of her conversation with Rivers and including it in the documentary constituted invasion of privacy. In her complaint, Bogie alleged that she was portrayed in the documentary as having approved of condescending and disparaging remarks by Rivers to the heckler. A federal district court granted the defendants’ motion to dismiss Bogie’s complaint for failure to state a claim. Was the district court correct? 2. Synygy, Inc. produced a software program targeted to the pharmaceutical industry that allows the user to integrate data from different sources. Scott-Levin, Inc. compiles data for pharmaceutical businesses that is used in computer programs such as Synygy’s. Synygy and Scott-Levin had a falling out in connection with a project that the two companies were working on. Scott-Levin discussed the problems that it had with Synygy with a common customer, Zeneca Pharmaceutical. Not long after, Zeneca ended its relationship with Synygy. Additionally, during a time that Synygy was using the name Simulate, Inc., during a client conference, Scott-Levin presented a slide show that contained the following slide: “simulate–to assume the outward qualities or appearance of, often the with intent to deceive.” Zeneca claimed that the discussion that it had with Scott-Levin’s representatives had nothing to do with its decision to end its relationship with Synygy. Synygy sued Scott-Levin for commercial disparagement. Should it prevail? Why or why not?

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