Subject: Re: The Recent Trend in "Collective Contracts"

[Peter Swire <swire.1@osu.edu>]

At 08:12 PM 7/10/97 -0700, Marshall Clow wrote:

>> <snip from previous posts>
>>        The big legal fight on ratings is whether any "state action" takes
>>place.  The First Amendment governs efforts by a federal or state government
>>to restrict speech.  If private companies "voluntarily" agree to do
>>something, the First Amendment simply does not apply.  But if the coercive
>>power of the state forces them to do the same thing, then the courts can get
>>involved under the First Amendment.
>>        Here, if the government is too explicit that it will ban certain
>>speech unless the networks ban it, then a court might find that the
>>government in fact is involved in an impermissible way.
>>
>What is the (legal) downside to a network (or producer)
>saying "No, I won't rate my shows."?
>Personally, I'd love to see Disney do this.

        Today's papers are filled with the new "voluntary" rating system
that most of the networks agreed to.  One of the threats, for whoever didn't
join, would be a *ban* on violent programming before 10 p.m.  Networks that
did join would do the rating, and so would not be subject to the ban.

        So, the analysis really takes two steps:
        (1) If "voluntary" and "private", the courts don't get involved
under the first amendment, because no state action.  Yesterday, Camel
announced that it "voluntarily" had decided to stop using Joe Camel.
        (2) If "involuntary" and "state action", then it's like the CDA
case.  The Court looks at the size of the burden on protected speech, and
then looks to see if their is a less restrictive alternative.  For instance,
the "no violence before 10 p.m." rule would be scrutinized like the
"indecency" provision in the CDA. Then you go to Vegas and bet on what the
courts will say. :)

        Peter

Prof. Peter Swire
Ohio State University
College of Law
mailto:swire.1@osu.edu
web: http://www.osu.edu/units/law/swire.htm (in early stages of construction)