United States et al. v. Playboy Entertainment Group, Inc.

1. Be narrowly tailored to promote a compelling government interest;
2. Use the least restrictive means to carry out that interest.

It is the burden of the government to prove that the least restrictive means was used. In this case, the government failed.

One possible less restrictive means could be the use of Section 504 of the same law, which says that the cable operator must fully scramble or block the channels upon the request of the subscriber. This section is more appropriate because it does not give a blanket censorship upon all subscribers but allows those persons who wish to avail of such filters and censorships depending on their personal needs.

Concurring (Thomas): “I am unwilling, in the absence of factual findings or advocacy of the position, to rely on the view that some of the relevant programming is obscene.”

Dissent (Scalia): “It is not only children who can be protected from occasional uninvited exposure to what appellee calls “adult-oriented programming”; we can all be. Section 505 covers only businesses that engage in the ‘commercial exploitation of erotica solely for the sake of their prurient appeal,’”

Dissent (Breyer): Congress has taken seriously the importance of maintaining adult access to the sexually explicit channels here at issue. It has tailored the restrictions to minimize their impact upon adults while offering parents help in keeping unwanted transmissions from their children. By finding “adequate alternatives” where there are none, the Court reduces Congress’ protective power to the vanishing point. That is not what the First Amendment demands.

Comments

This case reminds us that the Freedom of Speech and Expression is protected by the Constitution and any attempt to regulate expression must stand the strict standards set by the Supreme Court.

Follow-Up Questions (Please see Appendix A for follow up questions on your specific brief)

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1.      According to jurisprudence, commercial speech is given less protection under the First Amendment than political speech because the latter is more consistent with the purpose of the protection of free speech, which is to allow persons to share their thoughts and ideas without fear of reprisal. However, some jurists disagree with this because they say that there is no substantial difference between political and commercial speech.

1. Closely-regulated businesses are impressed with public interest and they are given less privacy and protection under the Fourth Amendment. They must yield to the public interest and must be closely monitored so that the quality of the goods and services provided by these businesses will not suffer due to mismanagement or unfair business practices.
2. The rights of the business was protected because the Court decided that the absolute censorship or content-regulation of sexually-oriented channels was unconstitutional, thereby protecting the freedom of expression.

He brought this suit saying that the school board retaliated against him for complaining about sex discrimination in the school’s athletic program. Such retaliation, he claimed, was against the Education Amendments of 1982 which provides that no person shall, on the basis of sex, be subjected to discrimination under any education program receiving Federal financial assistance.

The District Court dismissed the case, saying that the law does not include claims for retaliation.

The Eleventh Circuit affirmed.

The Appeals Court also affirmed.

The Education Amendment’s private right of action encompasses claims of retaliation against an individual because he complained about sex discrimination.

When the funded institution retaliates against a person because the latter complained of sex discrimination, this act constitutes intentional sex discrimination in violation of the Education Amendments of 1972.

Retaliation is an intentional act and it is a form of discrimination because the injured party is subjected to a differential treatment. It is sex discrimination because it is an act done in response to the nature of the complaint: an allegation of sex discrimination. It is analogous to a case where retaliation is made against a white man for advocating the cause of black people. The law must be given a broad interpretation to include such situations.

Comments

This case expands the applicability of discrimination to retaliatory conduct of persons who oppose sex discrimination.

Follow-Up Questions (Please see Appendix A for follow up questions on your specific brief)

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1. The EEOC is a federal agency whose mandate is to end employment discrimination in the United States.
2. The agency has the power to enforce the following laws:

a)      Title VII of the Civil Rights Act of 1964

b)      Equal Pay Act of 1963

c)      Age Discrimination in Employment Act of 1967 (ADEA)

d)      Rehabilitation Act of 1973, Sections 501 and 505

e)      Titles I and V of the Americans with Disabilities Act of 1990 (ADA)

f)       Civil Rights Act of 1991

1. Any person who believes his / her employment rights are being violated because of discrimination my file a charge with the EEOC and they will investigate and decide on the matter. Appeals are made with the regular courts.
2. The legislature may provide or modify the laws being enforced by the EEOC while the judiciary is responsible for entertaining any appeals on decisions or orders made by the EEOC.

Later during the flight, Dr. Hanson walked to the front of the plane to get some fresh air because the smoke was becoming too unbearable for him. He was given medical assistance but later died.

Husain filed a wrongful-death suit with the state court and it concluded that the airline was liable.

The Ninth Circuit affirmed the ruling.

The death constitutes an “accident” which makes the airline liable. The attendant’s refusal to reseat Dr. Hanson was external to him and was an unusual behavior when considering the airline industry standards.

The failure of the flight attendant to act on the request of Dr. Hanson was unusual and unexpected and was the proximate cause of the death of the passenger. This is the standard set forth in Air France v. Saks where “accident” was defined as “an unexpected and unusual event or happening that is external to the passenger, not to the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft”.

It is abnormal for a flight attendant to refuse a passenger’s request to be reseated, especially for health reasons. It was negligent behavior for the attendant to do this.

Comments

This case affirmed Air France v. Saks on the liability of the carrier for injury or tort.

Follow-Up Questions (Please see Appendix A for follow up questions on your specific brief)

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1. Acts or omissions in violation of consumer protection laws are especially catered for businesses. These include fraud, misrepresentation, product liability and unfair business practices.
2. A warranty is a promise that a good or service is factually stated. A warranty can either be express or implied. An express warranty is one that is agreed upon by the provider and the consumer. It is a guarantee by the provider that his representations are truthful. (i.e. a seller who says that the car he is selling is in good condition and that the buyer may return the car within one month if it is found to be defective). An implied warranty is one that is imposed by law and business custom. It is inherent in the type of business transaction entered into.
3. Liability is imposed when the cause of action (e.g. injury or tort) is duly proved.
4. No. All business establishments must exercise diligence with the goods and services they offer to the public. Notices or warnings are not sufficient to excuse them from liability. To be free from liability, they must be able to show that the injury or tort was caused by the consumer or any other reason other than the act or negligence of the provider of the goods or services.

The District Court dismissed the case because it was the corporation JWM who entered into the contract, not McDonald as an individual.

The Ninth Circuit affirmed that an injury suffered by a corporation would not allow a shareholder to bring an action on its behalf but it also said that when a shareholder suffered injuries that are separate and distinct from those of the corporation, the shareholder may be allowed to sue.

McDonald has no cause of action because he entered into the contract as an agent of JWM and, therefore, has no beneficial interest in the contract itself.

Although the Civil Rights Act 1866 protects the right of all persons to make and enforce contracts regardless of race, this cannot be applied in this case because McDonald did not enter into the contract as an individual but in behalf of JWM Investments, Inc.

It is basic that a corporation has a separate and distinct legal personality apart from its shareholders. What McDonald should have done was to sue under the name of the corporation.

Comments

This case reminds us that a corporation is treated as a separate person under the law. It’s existence and legal personality does not depend upon the individual shareholders that own it. When a corporation enters into a contract, the individual shareholders have not cause of action to enforce that contract.

Follow-Up Questions (Please see Appendix A for follow up questions on your specific brief)

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1. The legal standing of the shareholder was in dispute. He was not a party to the contract even if he was the only shareholder of the company.
2. He should have sued in the name of the company and not in his own personal capacity.
3. The contract was legitimate. The only problem was that the person who brought the suit was not a party to the contract.
4. The plaintiff could have filed a case for discrimination rather than for breach of contract.
5. Contract under the Statute of Frauds:

a)      Contracts in consideration of marriage.

b)      Contracts which cannot be performed within one year.

c)      Contracts for the sale of an interest in land.

d)      Contracts by the executor of a will to pay a debt of the estate with his own money.

e)      Under the Uniform Commercial Code (article 2, section 201), contracts for the sale of goods where the price equals $500.00 or more (with the exception of professional merchants performing their normal business transactions, or any custom-made items designed for one specific buyer). The most recent revision of UCC 2-201 increases the triggering point for the UCC Statute of Frauds to $5,000, but as of 2006 no U.S. state has adopted revised Section 201.

f)       Contracts in which one party becomes a surety (acts as guarantor) for another party’s debt or other obligation.