Entertainment Law
Part One: Legal Restraints on Entertainment Stories
Chapter 1: Sex and Violence in Entertainment and the Law
· First amend. poses two questions:
1. What kinds of speech regulation, if any, are permissible, and what is “speech” in the first place?
2. Who should resolve those controversies about where to draw the line between speech and action, between individual freedom and community values?
A. Entertainment and the First Amendment
1. Joseph Burstyn, Inc. v. Wilson (1952)
· “What is one man’s amusement, teaches another’s doctrine.”
· importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as inform
· prior restraints are unconstitutional and have a chilling effect on free speech
· 1st amend standards pertaining to standard of fact
· knowing or reckless disregard of falsity (story doesn’t have to be 100% factual)
· Held: the expression by means of motion pictures is included within the free speech and free press guarantee of the 1st and 14th amend. A state may not ban a film on the basis of a censor’s conclusion that it is “sacrilegious.”
2. Free speech is not absolute, is limited by laws/regulations:
· privacy
· defamation
· criminal statutes
· rt. of publicity
· unfair competition
· Regs (FTC, SEC, FCC, FDA)
3. Look for: Actual Malice (knowingly false or reckless disregard-no need to verify with absolute certainty.)
4. Illegal force of speech must be imminent and present a clear & present danger.
5. Obscenity
· Miller Test: (what kinds of works governments can constitutionally restrict as sexually obscene)
1. whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest,
2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law,
3. and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
· Having to satisfy all three of these components to the constitutional standard in practice limits gov’t regulation of movies to those that constitute hard core pornography – about which some justices believe they “know it when they see it.”
· Considerations:
· intrusiveness
· right to be left alone (1st blow v. knockout punch)
· protection of children
· time of day
· children in audience rational
· medium
B. Entertaining Sex
1. Skywalker Records, Inc. v. Navarro (1990)
· applied the Miller Test to determine if album was obscene…(Relevant community standard: more tolerable view of obscene speech than other communities w/in state.)
· Test:
1. Did appeal to prurient interests: frequency and graphic description of sexual lyrics evinces a clear intention to lure hearers into this activity.
2. Is patently offensive: analogous to a cameral with a zoom lens.
3. Would a reasonable person fin serious social value in the material at issue? (objective, not a community standard).
· lyrics in music can be obscene
· NO SOCIAL VALUE
· met all 3 prongs…NOT PROTECTED SPEECH…held to be obscene (although the sheriff’s office can’t conduct prior restraints on free speech, albeit non-protected speech)
2. Federal Communications Commission v. Pacifica Foundation (1978)
· Facts: George Carlan’s “Filthy Words” skit aired on radio on Tues. afternoon.
· Held: Not to be obscene, but indecent, which is entitled to some protection.
· TV & radio are more intrusive…require more regulations
1. “patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First amendment rights of an intruder.”
· Prior warnings – no protection b/c listener is constantly tuning in and out
2. Broadcasting is uniquely accessible to children (even those too young to read)
· Held: Ruled not so much on the material, but the time of day when the material was aired.
· enunciated different standards for print vs. TV & radio
· don’t have to eliminate this material, but have to be careful of distribution
· certain “safe harbor” times may be acceptable – usually at night when children are sleeping you can air material that couldn’t be aired earlier
· FCC – regulates TV & radio
3. First amend. usually fails when use is also:
· tainted w/ libelous material
· fictional biography (unauthorized) presented as fact
· use is misleading
· continued use after newsworthy event
C. Entertaining Violence
1. Tort Liability?
· Is there a call to action?
· Incit
ncroach upon the limited areas of more important interests.”
· Was intended to apply in cases of governmental action to suppress or to prosecute and cannot be imposed upon the MPAA as its standard
· Held: Not the court’s place to correct the rating.
· no finding of arbitrary action by MPAA
· court refused to look at the film
3. V-Chip: allows parents to block out certain TV shows
· shows broadcasted w/ a specified content will automatically trigger the chip
4. Note…Pornography inspired the VCR!
Chapter 2: Entertaining the Public with Individual Lives
· Docudrama: uses a dramatic human story to give viewers an intriguing picture of what happened to the people actually involved in the real event, creative interpretation of reality.
· Types:
1. ordinary people thrust into the public limelight by something that happens in their lives
2. real life stories of celebrities
· requires great number of private scenes that have to be manufactured to convey the essence of the story
· producers can secure “waivers” and releases from the key subjects of the story
· source of individual protection is state law, largely judge-made
A. Defamation
· injury to one’s honor/integrity
· Components of defamation claim:
a statement had been made of and concerning the plaintiff
the statement had been published to at least one other party
the statement was FALSE
the statement harmed the plaintiff’s reputation by lowering his or her standing in at least some part of the community
1. The Constitutionalization of Defamation Law
· Public Persons Standard: the plaintiff must prove that the statement was made with “actual malice” (NY Times v. Sullivan)
· Actual Malice Test: whether at the time the defamatory comment is made, the defendant either knows that the statement is false or acts with reckless disregard as to the statement’s truth.
