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Entertainment Law
University of Mississippi School of Law
Myers, Gary

Entertainment Law – Prof. Myers – Fall 2011

1) Introduction – Speech for Fun and Profit

a) Speech: focus of this course is on types of entertainment that qualify as “speech”

i) Motion pictures, broadcasting (including cable), music publishing and recording, performing arts, book publishing and video gamesà1st Amendment

b) Technology

i) Good because it vastly increases the potential audience

ii) Bad because it makes works much easier to copy

(1) àcomplex set of relationships between entertaining speech, technology, intellectual property and the 1st Amendment

c) Collaboration

i) Far greater need for it as a result of technological advances

ii) From authors to those responsible for merchandising

(1) What are the rights and responsibilities of the many people involved?

(a) àemphasis on contract interpretation

d) Economics

i) For entertainers to reap the kind of return desired for their talent, they need 2 kinds of representation:

(1) Agent representation for negotiation of individual contracts

(2) Labor unions to do collective bargaining

ii) Unpredictability of success or failure in entertainment worldàgreat financial risk

(1) This has forced major entertainment firms to expand and diversify

(2) Another big issue: impact of these conglomerates on shareholders, performers and consumers

(a) Recent trend toward relaxing antitrust and telecommunications barriers to conglomeration

e) International Dimension

i) Foreign policies of other countries pose the question of whether and how the U.S. government should “level” the playing field on which American entertainers have been winning the vast majority of the international audience

f) Lawyering

i) CONTRACT NEGOTIATION

(1) What background legal rules define the options for private agreement and shape the negotiating leverage that parties bring

ii) Also, always keep in mind the fundamental policy issues behind the rules and how they may change

2) 1st AMENDMENT CONCERNS

a) Judicial construction of the 1st Am. Has left the media largely immune from legal intervention aimed at the public interest in reducing antisocial behavior

b) Brown v. Entertainment Merchant’s Association

i) Content-Based

ii) Strict Scrutiny (level of scrutiny=balancing approach: 1st am right vs. state interest)

(1) Law usually struck down as unconstitutional

(2) Compelling government interest; narrowly drawn to serve that interest

(a) Not over- or under-inclusive

(i) Protecting children is a compelling interest

(ii) Recognizing parental authority is a compelling interest

1. àissue is narrow tailoring

2. Over-inclusive if concern is helping concerned parents

3. Under if to protect children from violent content

(3) Interesting line-up of justices (conservatives/liberals)

c) Video games qualify for 1st Am. Protection

i) Draws a connection to books, plays and movies

d) Under our Constitution, aesthetic value of art (once in realm of protected speech) is left to the individual and not the government

i) Can choose whether to view/play game

e) 1st Am. Principles do not vary based on the medium for communicating the information

f) Government has no power to restrict expression because of its content (idea, subject-matter, etc.)

i) However: some content restrictions are historically and consistently allowed

ii) Categorical Approach to Constitutional Analysis

(1) Speech in certain categories, carefully definedàmay be deemed unprotectedàgovernment can regulate them

(a) 3 Types:

(i) Obscenity

(ii) Fighting Words

(iii) Incitement

1. Can things be added to the list? Depictions of violence, animal cruelty, etc.? Not likely – court has indicated it does not want to add new categories of unprotected speech

2. Violent video games NOT included

a. Stephens case cited

g) Speech about violence NOT obscene

h) Shift in the Opinion: focuses on the fact that only a certain type of violent material is being limited (the video game)

i) Court says there is no historical practice of limiting children’s access to violent stories

(1) Says that CA is trying to single out one type of violent material without prohibiting other types (underinclusive)

3) SEX AND VIOLENCE IN ENTERTAINMENT

a) Entertainment & the 1st Amendment

(1) 2 Questions:

(a) Is the speech protected or unprotected?

(b) Once we decide if something is protected, how do we analyze a regulation that is being imposed?

(i) Balancing Approach

1. Balance state interest underlying speech limitation with free speech concerns

a. Public officials: favors free speech (NYT v. Sullivan)

b. Private citizens: favors limitations necessary to protect

(ii) Categorical Approach

1. Ask if the entire CATEGORY is unprotected

a. Incitement

b. Obscenity

c. Fighting Words

ii) Joseph Burstyn, Inc. v. Wilson – Motion Pictures

(1) 1st Amendment protection extends to a wide variety of content

(2) Just because they are for-profit does not remove them from under its protection (otherwise books and newspapers wouldn’t have it either)

(3) Also, “If there be capacity for evil it may be relevant in determining the permissible scope of community control, but it does not authorize substantially unbridled censorship”

(a) Do movies cause greater harm? Immediacy? Larger audience?

(4) Each method of expression has its own particular problemsàNOT subject to the same precise rules

(5) Previous restraint of expression is to be especially condemned – Prior Restraint Doctrine: (NY law required filmmakers to obtain permission prior to release)àlicensing/censoring

(a) Statute does not seek to punish a past offense

iii) Underlying Purpose of 1st Amendment Protection

(1) Holmes’ view: pp. 20 – “The Marketplace of Ideas:”

(a) Free trade in ideas: “best test of truth is the power of the thought to get itself accepted in the competition of the market”

(2) Brandeis’ view: civic view; informed electorate should make these political decisions about what to allow

(3) 1960s: USSC dramatically enhanced constitutional protection afforded any kind of speech

(a) NY Times v. Sullivan

(i) Many scholars believe this to be the most important step in the evolution of judicial understanding of the central meaning of the 1st Amendment

(ii) Tort law of defamation had to be constrained by a “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials”

(b) Brandenburg v. Ohio: afforded constitutional protection to speech by leader of KKK

(i) USSC overturned earlier precedent and said that it violated the 1st Am. To punish the pure ADVOCACY of illegal force

1. Only “advocacy directed to inciting or producing IMMINENT lawless action and that is likely to incite or produce such action” could constitutionally be made illegal”

(c) Warren Spahn v. Julian Messner

(i) USSC said that knowing or reckless disregard of falsity – rather than negligent failure to make a reasonable investigation – was the constitutional predicate for a privacy suit by a private individual

iv) Incitement: pp. 23

v) Definition of Obscenity: pp. 26

(1) Miller 3-Part Test: if obsceneàno protection (stringent test)

(a) Would the average person, applying contemporary community standards, find that the work taken as a whole, appeals to the prurient interest?

(b) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law

(i) “Patently Offensive” is a question of fact, which must be measured by contemporary community standards

(c) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value

b) Entertaining Sex

i) Skyywalker Records, Inc. v. Navarro – REVIEW!!!!!!

(1) 2 Live Crew: As Nasty As They Wanna Be CD – regulated by Florida sheriffs – prohibited sale

(a) Music as a category of unprotected speech – applying Mille

standard not part of Miller test – easier to find material indecent than obscene

(i) Ex: note: if superbowl broadcast on ESPN instead of CBS (doesn’t hit public airways, goes through coaxial cable to your house instead of satellite and public airways) – wouldn’t be considered “indecent” under FCC – couldn’t be regulated

(5) Other Distinctions Based On Content Approved in the Past

(a) Government may forbid speech calculated to provoke a fight

(b) May treat libels against private citizens more severely than against public officials

(c) Obscenity may be wholly prohibited

(6) Also, broadcast is different than other forms because it is uniquely accessible to children (even those too young to read)

(a) Broadcasting generally has the narrowest 1st am. Protection

(b) Prior warnings do not provide adequate protection because listeners are tuning in and out

(c) Licensing – exception to Prior Restraint rule

(i) Why do we have licensing? Scarcity of the broadcast spectrum

1. Still valid today? So many other ways to transmit material…

(7) Red Lion Case: right to reply (fairness)

(a) Doctrine has been abolished by FCC but case suggests that FCC still has this power to require

(b) Miami Herald Case: violates 1st am. To require newspaper to publish a replyàillustrates that radio is more restricted

iii) FCC

(1) Use of F-word or any variation, in any context, is inherently sexual

(a) Intent to use it irrelevant

(2) Inspired by use of fleeting profanities used by Cher and Nicole Richie, FCC substantially expanded its broadcasting “indecency” to include any “fleeting expletives” being aired on TV (Golden Globes)

(a) Congress also increased potential max penalty for each indecency infraction from 32,500 to 325,000

iv) FCC v. Fox Television – Fleeting Expletives

(1) Commission knew that its Golden Globes Order was making a change… that is why they declined to assess penalties

(a) Can’t argue they didn’t have notice

(b) The fact that an agency had a prior stance does not prevent it from changing its view

(2) “the FCC’s decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach we sanctioned in Pacifica”

(a) Reasonable for the FCC to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words, requiring repetitive use to render only the latter indecent

(b) Not arbitrary or capricious for agency to demand the determination of patent offensiveness of isolated expletives on a case-by-case basis

(i) Reasonable to believe that complete immunity for fleeting expletives will lead to an increase of their use

(c) Further supported by technological advances that make it easier for broadcasters to bleep out offending words

(d) Congress has determined that indecent material is harmful to children and has left enforcement to the FCC

(i) Can’t require them to have empirical data (expose some kids to indecent language and not others)àban on indecency would be a nullity

(3) FCC and Court use a context-based approach

(a) Emphasize that the classification of different language/scenes depends on when it is aired, what channel, etc.

(i) Prime-time, designed to draw a large nationwide audience?