Posts In "First Amendment"

First Amendment




No, It’s Not 1984, but, Amazingly, Everyone Is Again Asking: Where’s the Beef?

You’ve probably heard about the recent class action lawsuit filed against Taco Bell, alleging that their tacos don’t really contain beef (or, rather, contain only 33% beef, plus a variety of “extenders” and “non-meat substances” ranging from “autolyzed yeast extract” to silicon dioxide, a.k.a. sand). (Presumably, this will be an easier plaintiff class to recruit than the potential plaintiffs in the YouPorn/“History Sniffing” lawsuit we reported on last month. But maybe I’m overestimating people’s willingness to admit eating Taco Bell.) According to the lawsuit, Taco Bell is misleading the public by saying its products contain “real beef” when, in fact, the products only contain the appetizingly-named “taco meat filling.” Although I find it hard to believe that anyone might have actually decided to go to Taco Bell thinking their taco was going to be 100% beef (it’s fast food, people!), these types of lawsuits are quite common, and the legal foundation of the claim is fairly straightforward.

Boiled down to its essence, Taco Bell is accused of trying to mislead the public about the quality of its product. Legally, Taco Bell’s statements about its meat are considered “commercial speech” — Taco Bell is trying to get people to buy tacos (well…“tacos,” anyway). The First Amendment provides limited protection for commercial speech, and rule #1 is: you have to tell the truth. So, the Food and Drug Administration and the Federal Trade Commission can pass laws restricting what fast food chains can and cannot say about their food. The same is true for other products, like vitamins, weight loss supplements and the like (hence the lawsuits against the makers of Men’s One-A-Day and Airborne, as well as trainer/TV personality Jillian Michaels, endorser of Calorie Control). So the question for Taco Bell is simple: did it comply with applicable regulations when touting its tacos as having “real beef” in them?

Taco Bell’s response, on the other hand, was fascinating. Taco Bell took out full-page “Thank You For Suing Us” ads in major newspapers across the country denying the allegations in the complaint. That’s not too surprising. But, Taco Bell did more than just offer facetious thanks and deny the allegations. Continue reading the full story . . . »


Why You Probably Won’t See Grammer vs. Grammer on the Civil Docket

During a Hollywood breakup, inevitably the bitter dumpee will publicly air some dirty laundry about the heartless dumper. And by now, most of us are probably bored of the endless parade of allegations ofdalliances with the nannyobsessions with child pornography, andmind-bending racist rants (I mean, those are so overdone, right?). But every once in a while, you get a really interesting, fresh take on the mid-breakup PR takedown. For example, what if the dumpee stronglyinsinuates that the dumper is secretly into cross-dressing? Can that dumper sue the loose-lipped dumpee for defamation? Well, let’s take a look at an example.

The Real Housewives of Beverly Hills is a lovely show that documents the lives of several caring, down-to-earth, and respectful women….oh wait, wrong show. The real Real Housewives of Beverly Hills documents the dramatic lives of six well-to-do women who love their ritzy lifestyles and seem to constantly get into screaming matches with each other about absolutely nothing. (Um. Or so I hear…) One of the show’s stars, Camille Grammer (a.k.a. Kelsey Grammer’s bitter soon-to-be ex-wife), has been the instigator of many of those screaming matches. Yet, evidently not content with stirring things up in only one medium, the erstwhile Mrs. Frasier Crane went for bonus headlines during an appearance last week on theHoward Stern Show.

When Howard Stern asked Camille whether Kelsey starred in the cross-dressing Broadway show La Cage aux Folles because he is gay, Camille quickly replied, “That’s for another reason.” Howard Stern and his sidekick Robin Quivers then pressed Camille about whether Kelsey was secretly into cross-dressing. In response, a laughing Camille not-so-coyly stated, “I didn’t say it. I’m not talking about that.” While Camille did not exactly say that Kelsey likes to play dress up with women’s clothes, she never denied it or indicated that she was joking around. Instead, she strongly implied that cross-dressing was one of Kelsey’s private extracurricular activities. Before going any further, but not before hinting that Kelsey has worn her panties in the past, Camille decided to change the subject for fear she would be “smacked with a lawsuit.”

Kelsey does not seem to be all that rattled by Camille’s antics. But, this being a legal blog and all, what we want to know is: can Kelsey sue his estranged wife for defamation? Continue reading the full story . . . »


The Tarnished Era of the Golden Globes

With weeks of double-page “For your consideration…” ads in Varietyand The Hollywood Reporter finally culminating in yesterday’s Golden Globes nominations announcement — about which I have nothing to say other than “at least 3, if not 4, of the nominees for Best Comedy or Musical are neither comedies nor musicals…I mean, seriously, The Tourist?” — Hollywood’s awards season has officially kicked into high gear. As a fan of TV, movies, pop culture, and pointy-headed overanalyzation in general, I’ve always enjoyed awards season (minus the extra traffic congestion that comes from living down the street from Grauman’s Chinese and the Kodak Theater).

Sure, maybe us entertainment lawyers seldom make it into the acceptance speeches (damn agents get all the credit). And certainly no one has ever memorably crowed “you like me! you really like me!” to a studio director of business and legal affairs. (If Spielberg would have won for Jaws in ’76, maybe he’d have thanked his lawyer, Bruce Ramer — after whom Spielberg supposedly named “Bruce,” the mechanical shark featured in the film — but unfortunately for the entertainment legal community, Spielberg never made it to the podium. I guess Spielberg himself might have been a little bummed about it as well.) As it turns out, though, the apparently legally-cursed Globes represent the one awards show whose recent history has provided several opportunities for us entertainment lawyers to get in on the awards season fun.

(Given the economy, I suspect lawyer voodooists trying to drum up business. J’accuse.) Continue reading the full story . . . »


Is Playing a Video Game Conduct or Speech? Lessons from Microsoft Kinect

I was in GameStop last week buying my daughter Hawx 2, a T-rated simulated aerial combat video game. As I was standing in line (with all the dads buying M-rated Call of Duty: Black Ops for their under-17 year old sons, while pretending to buy it for themselves), I was drawn to the display of the Microsoft Kinect, the new hands-free controller that is designed to allow the ultra-interactivity of the Nintendo Wii, but without any controller at all. You (and, apparently, one million of your likeminded early adopter friends) stand in front of a 3D camera system, which translates your movements in real life into the movement of your avatar on the screen. No longer is the pushing of a button or the swinging of a controller rendered as the action of your avatar; rather, your actual fingers, hands, arms, face and body are re-rendered as the action of your avatar exactly as you performed them. Ladies and gentlemen, at long last, the future is here (minus the flying cars, hoverboards, food hydrators, and everything else we were promised in Back to the Future, Part II).

I immediately thought of it as acting in a play. The real you is performing the movements from the gallery, while the virtual you is acting them out, in costume and on set, on the stage of your TV. It is like playing cops-and-robbers in the playground, except no one else need be present and no playground is required.

Of course, since I am a lawyer and never turn my lawyer brain off, I immediately recalled the most interesting question that was asked during November 2’s Supreme Court oral arguments in Schwarzenegger v. Entertainment Merchants Association, the decision in which is expected to come down sometime in Spring 2011. Continue reading the full story . . . »


Steve Smith Discusses California’s Anti-Video Game Law on Bloomberg News

Last week, Bloomberg’s Lee Pacchia interviewed Law Law Land’s Steve Smith about the Supreme Court case of Schwarzenegger v. Entertainment Merchants Association, which will decide whether a California law barring the sale of violent video games to minors violates the First Amendment. Steve’s views on the subject, of course, are no secret. But we think his podcast makes for one of the most cogent and interesting breakdowns of the issue yet. Check it out here (more Bloomberg Law podcasts here).


The Doctrine Formerly Known as Fair Use

There’s been a new development in the Troubling Tale of the Two-Steppin’ Toddler — or, as it is more commonly known in legal circles, the Lenz v .Universal case. Our regular readers are familiar with the facts: back in 2007, loving mom Stephanie Lenz posted a 29-second YouTube clip of her adorable tot dancing, with Prince’s “Let’s Go Crazy” blaring in the background (I actually think he’s just running around the kitchen pushing a Fisher Price walker, but I’m no Carrie Ann Inaba). A few months later, Universal Music had the video removed, claiming copyright infringement. Lenz fought back (Hell hath no fury like a mother scorned), claiming fair use of the copyright, and filed suit in the U.S. District Court for the Northern District of California for misrepresentation of a DMCA claim. Since then, Mega-Mom has scored several victories, surviving a motion to dismiss in 2008 and knocking out certain of Universal’s affirmative defenses earlier this year. Continue reading the full story . . . »