Introduction
The federal and state governments have their own rules on the use of commercial advertising, both protecting the public from false and inappropriate content and companies from illegal or excessive censorship. In this context, many different cases occurred, provoking intense debates regarding the scope of advertisements’ freedom and unreasonable censor’s restriction. This paper aims to consider the case of CARDWARE vs. WBLAH in the light of the First Amendment and California’s laws and determine whether WBLAH legally refuses CARDWARE to broadcast its commercial.
California Law and the First Amendment
The primary law guaranteeing free advertising rights is the First Amendment to the United States Constitution prohibiting Congress from adopting laws that can constrain the freedom of speech or press. In this regard, the Amendment protection also includes commercial speech that implies an advertisement performed on behalf of an individual or private organization to gain profit. However, the US Constitution suggests the specific categories of speech in the United States, which are less or cannot be defended by the First Amendment. These categories comprise fraud, obscenity, child pornography, speech that encourages the inevitable illegal actions, violates the intellectual property, or contains threats, and advertising (“What does free speech mean?,” n.d.). For instance, misleading advertising may be barred, while false can be punished.
California’s regulation that should be taken into account while advertising principally includes California Business and Professions Code § 17200, California Business and Professions Code § 17500, and California Civil Code § 1770. In particular, the first and the second directly forbids deceptive, unfair, or misleading advertising, while the third assumes a number of dishonest acts, including false or misleading statements in advertisements (“California,” n.d.). Additionally, in California, the Cardigans should consider California Penal Code §311.1(a) that bans producing, possessing, spreading, and advertising child pornography (“California Penal Code,” n.d.). Therefore, to obtain the right to commercial air, CARDWARE’s advertisement should not have unfair or misleading content. Moreover, if the commercial contains elements pertaining to child pornography, they should be excluded. Otherwise, WBLAH will have all reasons to reject advertising and defend its decision in court.
The Relevant Cases
This section mainly pays attention to examining the 1978 decision of the Supreme Court in Federal Communications Commission v. Pacifica Foundation and the Action for Children’s Television v. FCC. The former concerns the broadcast of George Carlin’s monologue, where the performer intentionally and repeatedly applies words of the sexual or excretory character, which children could hear (“First Amendment,” n.d.). As a result, the court defined seven particular words as obscene and banned the program without explicitly explaining the indecency of these words. Therefore, the decision does not favor CARDWARE’s situation in case of the availability of abusive words in the commercial. However, this case also does not justify WBLAH’s decision to abridge the Cardigans’ rights since their advertisement does not have any indecent or abusive words.
The latter is related to the issue of time regulation for broadcasting programs that are not suitable for children to watch. Specifically, In Action for Children’s Television v. Federal Communications Commission (FCC) (“ACT III”), the District of Columbia Circuit Court of Appeals permitted the air of indecent programming only from 10 p.m. to 6 a.m. (Garry, 2009). Besides, the court acknowledged that time-channeling restriction did not interfere with the adults’ freedom to listen or watch obscene broadcasting, thereby not violating the First Amendment (Garry, 2009). According to FCC, indecency is “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities” (“Indecency,” n.d.) Hence, regarding CARDWARE, the ACT III does not support its advertisement if it contains particular indecent scenes. On the other hand, the case recommends that the company can include them in the commercial if it will be shown at night.
It is also worth discussing the interesting case of Denver Area Educational Telecommunications Consortium Inc. v. FCC that relates to the laws on cable television. In this respect, the Supreme Court ruled to repeal the part of the law that allows cable companies to deny broadcasting obscene material (“First Amendment,” n.d.). In addition, the court cancelled the section that requires subscribers of “leased access channels to submit a written request before “indecent” programs could be received” (“First Amendment,” n.d.). The courts have come to the conclusion that excessive censorship in the entertainment industry should not be permitted. The cases Spice Entertainment Companies v. Reno and Playboy Entertainment Group v. the United States, where the Supreme Court refused injunction requiring cable operators to encrypt signals of sexual programs, only maintained this view (“First Amendment,” n.d.). Therefore, the latest regulations support CARDWARE’s rights to air its advertisement even if it comprises the elements of a sexual or indecent character.
Conclusion
In summary, the paper has discussed the case of CARDWARE vs. WBLAH in the light of the First Amendment and California’s laws and determine whether WBLAH legally refused CARDWARE to broadcast its commercial. Concerning the California laws and First Amendment, to gain commercial air right, CARDWARE’s advertisement should not have pornographic, unfair, or misleading content. The 1978 decision of the Supreme Court does not maintain CARDWARE in case of the presence of abusive words in the commercial, and the ACT III does not support it if it contains particular indecent scenes. Finally, the recent shifts in legislation on cable television prove CARDWARE’s rights to air its advertisement even if it includes sexual or inappropriate elements.
References
California. (n.d.).
California Penal Code § (Section) 311.1(A) – Possession of child pornography. (n.d.).
First Amendment and censorship. (n.d.)
Garry, P. M. (2009). Action for Children’s Television v. Federal Communications Commission (D.C. Cir.) (1995).
Indecency and the electronic media. (n.d.).
What does free speech mean? (n.d.). Web.