From: Marshall Clow <mclow@owl.csusm.edu>
Date: Fri, 11 Jul 1997 11:21:40 +0800
To: Peter Swire <cypherpunks@cyberpass.net
Subject: Re: The Recent Trend in "Collective Contracts"
In-Reply-To: <199707102236.SAA07074@mail3.uts.ohio-state.edu>
Message-ID: <v03102809afeb5318b909@[207.67.207.179]>
MIME-Version: 1.0
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At 3:36 PM -0700 7/10/97, Peter Swire wrote:
>At 09:29 AM 7/10/97 -0700, Tim May wrote:
>
>>I'm not a lawyer, but I am interested in the various ramifications--and the
>>constitutionality--of recent "sweeping contracts" between vendors,
>>lawmakers, consumers, etc.
>>
>>Two recent example:
>>
>>1. The "tobacco agreement." Supposedly a deal involving the transfer of
>>$360 billion from some number of tobacco companies in exchange for dropping
>>of liability suits, immunity from future claims, voluntary restrictions (!)
>>on advertising, etc. (And the "etc." is especially complicated in this huge
>>case.)
>
>        So far as I know, the agreement has no legal effect until and unless
>a bill is enacted in Congress. Once a bill is enacted, there can obviously
>be far-reaching ramifications.  For instance, an individual's right to sue
>in tort can be cut off.  Punitive damages can be abolished for the defined
>class of suits, etc.
>        If such a bill is enacted, various groups would likely sue on the
>basis that it is unconstitutional.  That's what happened with CDA -- the
>indecency provisions first became law, and then were overturned in the courts.
>
That was my take, too.

IANAL, but I don't see how this "agreement" can possibly work.
Especially since it's not an agreement at all.

Congress will pass a law, and if the tobacco companies don't like
it, (a foregone conclusion, given the posturing going on) they will
sue to overturn it. (And again IMHO, they'll win.)

Then congress will pass another law more to the
tobacco companies liking.

I predict this will not be settled until after Clinton leaves office.

>>2. The "voluntary ratings" agreement being announced today by Al Gore and
>>some of the television networks. (Earlier "voluntary agreements" were
>>implemented, but, according to supporters of censorship, "failed." Hence
>>the new push for newer voluntary restrictions.)
>
>        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.

-- Marshall

Marshall Clow     Aladdin Systems   <mailto:mclow@mailhost2.csusm.edu>

"In Washington DC, officials from the White House, federal agencies and
Congress say regulations may be necessary to promote a free-market
system." --  CommunicationsWeek International April 21, 1997