Fallon 1

Heidi Fallon

Media Law

Catherine Hastings

5 October 2020

The First Amendment states that the people are given the right to freedom of speech, if that’s true

then how do we run into so many issues when publishing our work? Every person is entitled to their own

opinions and that is usually where we run into the issue of court cases on the First Amendment. Over the

past few weeks, we have studied Supreme Court cases that have questioned whether the people involved

are abusing their right to the First Amendment. In advertising, we are bringing products to the attention of

our consumer we want to grab their attention in a creative way and sometimes depending on the product

or the service it may not be as pleasant to people. In cases such as Lorillard Tobacco Co. v. Reilly, the

tobacco company pushed the limits of the Massachusetts tobacco promotion laws. Under the umbrella of

communications, we are constantly addressing the public, we have to be aware of the way we are

approaching them and respect the opinions of these people. In the cases of Lorillard Tobacco Co. v.

Reilly, Time, Inc. v. Firestone, Hutchinson v. Proxmire, and Central Hudson v. Public Service

Commission, they all demonstrate issues that relate to the First Amendment and Advertising/Public

Relations.

When it comes to creating an advertisement, the company has their consumers best interest at

heart. They want to create an ad that will engage their customers and make them want to buy their

product. In the interest of the customer, we need to consider the reaction they may have, and even the

reaction of our noncustomers. In the Lorillard Tobacco Co. v. Reilly case, they challenged the

modifications that the state of Massachusetts made. The tobacco companies were and still are required to

label cigarette packages with health labels saying that smoking can be dangerous, and what could happen

if you smoke them. These new regulations also required the health warnings on advertisements. The

Tobacco companies filed a suit against the Attorney General of Massachusetts, which was ruled that the
 Fallon 2

regulations are valid. The issue of this case was Is the comprehensive scheme to address smoking and

health enacted by Congress valid?

Although the First Amendment grants the people freedom, for a product that impacts people’s

health there needs to be stated that there are effects. The Attorney General had put these rules in place to

notify people and prevent underage smoking and tobacco use. To relate to today’s issues of tobacco use,

we see companies like Juul and other e-cigarette companies targeting young adults with flavors and

saying it is safe when we still don’t fully know the effects of these products.

In relation to advertising, where we want the customers best interest at heart, when a journalist

publishes a story, they want the readers best interest. Journalists want to give their readers an interesting

story however they must be sure that the information is true. In the case of Time, Inc. v. Firestone, Mary

Firestone, the third wife of Russel A. Firestone, who is the heir to the Firestone Tire and Rubber

Company, filed a suit against Time Magazine for publishing an article about their divorce. “Mary

Firestone had filed for divorce, and Russel counterclaimed on the grounds of extreme cruelty and

adultery” (424 U.S. 448, 96 S. Ct. 958). They had been granted the divorce by the court, but the other

allegations didn’t stick due to lack of evidence. Time Magazine had published an article, “DIVORCED.

By Russell A. Firestone Jr., 41, heir to the tire fortune: Mary Alice Sullivan Firestone, 32, his third wife; a

onetime Palm Beach schoolteacher; on grounds of extreme cruelty and adultery; after six years of

marriage, one son; in West Palm Beach, Fla” (424 U.S. 448, 96 S. Ct. 958). After a long trial, the judge

had gathered enough evidence to determine there were extramarital adventures on both sides. Ending the

trial and following the publishment of the article Mary Firestone filed suit against Time for libel. This

questions whether Mary was a public figure or not. She was determined not a public figure, which

showed that no actual malice was done on Time Magazines part.

As communications professionals we are aimed to protect our consumers or viewers or whoever

by being truthful. In cases like these we see mistakes that taken to such levels of filing lawsuits. Some

cases may be more serious than others, such as the Lorillard Tobacco Co. v. Reilly case where not
 Fallon 3

providing a proper health label could cause harm to customers. In personal matters, the case of Time v.

Firestone, the Firestone family had been exposed to millions of readers and they believed that it was

wrong for a magazine to publish a personal matter to the public. Society has come so accustomed to

exposure, due to the media we are able to watch what is happening in everyone’s lives, mainly celebrities.

Even currently with the 2020 presidential election coming up and the Covid-19 pandemic there is so

much media coverage but how do we know who is telling the truth?

In relation to government officials, in 1979 a behavioral scientist Ronald Hutchinson sued

Senator William Proxmire after being awarded the “Golden Fleece Award” which was an award for

wasting money. The Senator had awarded public officials he had believed were wasting public money

and had made previous criticisms about the research in newsletters, and Hutchinson sued for libel.

Hutchinson had been researching the emotional behavior of animals. When brought to the appeals court,

it was ruled that Proxmire’s comments were protected by the First Amendment. Because Hutchinson was

a public figure it was required for him to prove actual malice before an objection could be made. The case

then made it to the supreme court where it was ruled that Proxmire’s comments were not protected by the

First Amendment. However, the ruling had remained at the lower court’s decision due to Hutchinson

being labeled as a private figure. The debate clause did not provide absolute privilege from liability and

labeled this situation being nonessential to Congress.

In the case of Central Hudson v. Public Service Commission, the State of New York ordered all

electric utilities companies to stop all advertising promoting using electricity due to insufficient fuel

supplies. After three years, the shortage had eased but the state wanted to continue the ban on advertising.

The electrical companies had then fought that it violated the First Amendment to prevent them to

advertising to their consumers. Although in the case of Lorillard Tobacco Co. v. Reilly tobacco is

something that effects people’s health, both of these cases are preventing companies from advertising.

The electrical companies were granted advertising, but it was not allowed to be “promotional”. They then

brought it to the Court of Appeals, and they held their ban because it outweighed the limited
 Fallon 4

constitutional value of the commercial speech issue. Although the Supreme Court overruled by then

establishing a four-part analysis for commercial speech:

“In Central Hudson Gas & Electric Corporation v. Public Service Commission, the Supreme Court sets
forth a four-part test for determining when commercial speech may or may not be regulated by states. The
test states that: (1) the commercial speech must not be misleading or involve illegal activity; (2) the
government interest advanced by the regulation must be substantial; (3) the regulation must directly
advance the asserted government interest; and (4) the government regulation must not be more extensive
than is necessary to serve the government interest at stake.” (thefire.org).

This ensured that issues like this case could be prevented in the future and that companies have a

guideline to follow. The state could not have these companies advertising their services during the

shortage because then they would being using too much of the stock that they didn’t have. However, these

companies, once the shortage had eased, should have been able to start advertising again because this is

their specialty and they need consumers to know that they are of service.

The comparison to the Time v. Firestone case and Hutchinson v. Proxmire case, both were a case

of private figures that did not need to show actual malice. Although the Lorillard Tobacco Co. v. Reilly

case and the Central Hudson v. Public Service Commission cases were more of false advertising all four

of these cases disrupt the general rules of advertising and public relations. All of these cases see a

violation of the First Amendment in some way. Whether it was leaked information on a private figure or

false advertising, these issues give consumers and readers the wrong idea. The Courts put these rules and

laws in place to product people from having false information. This is why the field is called

communications, we need to show people true information so that they know what they will be getting

themselves into. In relation to today’s world, between the election and the pandemic we aren’t sure what

is facts and what’s not. To quote the ruling of Central Hudson v. Public Service Commission, the

commercial speech must not be misleading or involve illegal activity. There are is so much fake news out

there and so many people having a different opinion on what is happening it’s so unknown.
 Fallon 5

As demonstrated, communications are a wide variety of things that we express through public

forums. Whether someone is a public or private figure, we run into issues where people are held

accountable for their actions. In today’s world we are able to share our opinions through voice or through

media and it can run us into issues where there is difference of opinion. In these past cases the allegations

are brought to the attention of the court and even the levels of court have difference of opinions. When

looking at Advertising and Public relations our job is to connect with our audiences and share truthful

information, but sometimes we see negligence or if someone is as cruel to be sharing false information.
 Fallon 6

Works Cited

Brudvig, Jon L. Hutchinson v. Proxmire, www.mtsu.edu/first-

amendment/article/560/hutchinson-v-proxmire. 

FIRE June 20. (2017, March 06). Central Hudson Gas & Electric Corp. v. Public Service
Commission of New York. Retrieved December 04, 2020, from
https://www.thefire.org/central-hudson-gas-electric-corp-v-public-service-commission-of-
new-york/

Time, Inc. v. Firestone - 424 U.S. 448, 96 S. Ct. 958 (1976).

www.lexisnexis.com/community/casebrief/p/casebrief-time-inc-v-firestone.  

Westlaw Classic.
1.next.westlaw.com/Document/I9a3efa089c9c11d991d0cc6b54f12d4d/View/FullText.html
?navigationPath=Search%2Fv1%2Fresults%2Fnavigation
%2Fi0ad604ab00000174f8675c8460c68243%3FNav.