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Alcohol Advertising Suits

Walter Olson has brought my attention to this recent article on alcohol promotion lawsuits; the article is by Doug Bandow of the Cato Institute and it appears in The American Spectator. I share many of the concerns about the lawsuits, but the claims that advertising has no effect on overall drinking or on problem drinking seem overstated to me. For instance, here?s the abstract of a recent working paper that suggests that higher alcohol advertising is associated with higher youth consumption (even though the advertising is not targeted at kids). One of the co-authors of that paper earlier found, in a cross-country study (abstract here — oops, and another one here), evidence that total alcohol consumption decreases following a ban on alcohol advertising.

Bandow makes another argument about the Constitutional protection of commercial speech: “The Constitution protects freedom of speech, and that includes commercial speech by alcohol producers. We punish brewers and distillers for selling their legal products at our peril, since there’s no reason to assume that the regulatory paternalists won’t soon find another unpopular vice to penalize.” Again, I share the concern that it shouldn’t be the case that simply by labeling an activity a vice, the government gains carte blanche to control advertising of that activity. But imagine and compare three broad alternatives in regulating vice: (1) laissez faire: the vice is legal and advertising is legal; (2) the vice is legal and advertising is controlled or banned; (3) the vice, and its advertising, is illegal.

I generally prefer option (2), to be honest, but my point here is that those of you who prefer option (1) might not want to push too hard against option (2) ? or you might end up with option (3). (Now, I don?t believe that the government actually has the right to ban adult vice consumption, but when we are arresting 1.5 million people per year on drug offenses and another 90,000 or so on prostitution-related charges, what I believe is not all that important.) I think that the history of vice regulation suggests that vice is legally tolerated only when it is made palatable to the non-customers, and in-your-face vice advertising has a way of getting folks riled up. And for those of you who now think that I am a hopeless statist, let me mention that John Stuart Mill, who would have no truck with making prostitution or alcohol or drugs illegal, did not view advertising restrictions as manifestly unjust infringements upon personal liberty — for him, it was a close call, as he makes clear in Chapter V of On Liberty.

Vice Squad has struggled with advertising controls in the past, including on November 19, 2003 and (briefly) on April 9, 2004.

Guest Blogger Emerges

Hello folks, my name is Jim Leitzel and I generally hang out at Vice Squad. But the Overlawyered denizens have been kind enough to share their pixels with me this week, so here I am. I’ll probably talk mostly about vice, but I am an economist, not a lawyer, so I won’t be able to hold up my end of the lawyerly dialogue.

I’ll start with a quiz (though I won’t vouch for the correctness of my suggested answer). Imagine that you are concerned about three U.S. health-related problems: suicide, cancer, and sexually-transmitted diseases. Alas, you are limited to implementing only one policy reform. What should you do? To build suspense (is it working?), I’ll put my suggestion after the break…

Read On…

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Siccing the law on Fox News

Given its role in campaign speech suppression, we’ve long associated the goo-goo group Common Cause with scary assaults on free speech, so we can’t say we’re exactly surprised at this latest: in a petition to the Federal Trade Commission, it and the leftist MoveOn.org are alleging that the Fox News Network should be exposed to penalties for consumer fraud for using the slogan “Fair and Balanced” while repeatedly broadcasting views strenuously disapproved of by C.C. and MO.O. (Jake Coyle, “Fox News’ use of ‘Fair and Balanced’ challenged legally”, AP/San Diego Union-Tribune, Jul. 19; Charles Geraci, “Activists Ask FTC to Take Action Against Fox News”, Editor and Publisher, Jul. 19). Fox “doesn’t have the right to market its network services to prospective viewers and advertisers by masquerading as a news network,” claims former FTC chairman Michael Pertschuk, who we’re very relieved held that position way back in the Carter era rather than more recently. (Albert Eisele and Jeff Dufour, “Under the dome: ‘Fair and balanced’ fight: Lefties hit Fox with FTC petition”, The Hill, Jul. 20). No word yet on whether equally inflamed right-wingers plan to haul the New York Times off to the authorities for using the slogan “All the News That’s Fit To Print”, which is no more believable than Fox’s (via Amy Ridenour). More: Jul. 26.

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“Compensation culture” — in Iraq

“Whatever you think about democracy and human rights, the Coalition successfully imported one thing from the West into post-Saddam Iraq — the compensation culture. Iraq has become a hotbed of legal claims and counterclaims, of individual complaints and class action lawsuits, for everything from physical and mental injury to destruction of property. Iraqis demand compensation for damage caused to their gardens by American tanks, or for the scrapes and dents to their cars caused by run-ins with speeding Humvees. American soldiers have threatened to sue the US military for exposing them to death and injury by terrorist attack, while British soldiers want compensation for injuries sustained in friendly fire incidents. Ambulance-chasing (or perhaps Humvee-chasing) human rights lawyers are everywhere in Iraq, encouraging Iraqis to sue, sue, sue.” (Brendan O?Neill, “Invasion of the lawyers”, The Spectator (U.K.), Jul. 10 issue, posted Jul. 17)(reg).

Update: U. of Utah settles won’t-swear actress’s suit

“The University of Utah agreed yesterday to let students opt out of activities that conflict with their religious beliefs, settling a lawsuit brought by a Mormon drama student who refused to recite lines that contained the F-word and took the Lord?s name in vain. Christina Axson-Flynn, 24, had sued the university in federal court, accusing it of violating her to right to freedom of speech and religion.” (“College, Mormon student settle theatrical-swearing case”, AP/First Amendment Center, Jul. 15; Elizabeth Neff and Shinika A. Sykes, “U. settles case over student’s rights on stage”, Salt Lake Tribune, Jul. 15). The “university will reimburse Axson-Flynn for tuition and fees paid during the 1998-99 academic year and, through the state’s risk management office, pay her attorneys’ fees of approximately $250,000.” (Angie Welling, “U., Axson-Flynn settle civil rights suit”, Deseret News, Jul. 15). See our coverage of Jan. 24, 2000 and Feb. 16, 2004.

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EDDix guide to law weblogs

An outfit called EDDix, which markets services relating to the electronic data discovery (EDD) aspects of litigation, recently published an annotated list of its 50 favorite legal-related weblogs, which includes kind words about this site (we’re among 16 deemed “must reading”). Perhaps the list was meant to boost EDDix’s profile — it’s certainly done that — but it’s worth a look in its own right. I don’t remember seeing elsewhere such a useful pocket guide to the so-called blawgosphere, including information on the people who put out the sites, and it alerted me to the existence of a number of promising sites new to me.

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U.K.: ban proposed on disrespecting religions

In Great Britain, where there is no First Amendment to protect free expression, Home Secretary David Blunkett has proposed a law banning so-called hate speech directed against religion, apparently in a gesture toward Muslim clerics offended by vigorous criticisms of their preachings. David G. Green, Director of Civitas: the Institute for the Study of Civil Society, warns that such a step would endanger Britain’s history of intellectual liberty — Hume, for one, might have been open to prosecution given the rude things he said about priests — and would act as a protective charter for religious extremism by giving its adherents a way to persecute scoffers by dragging them through the courts. (“Background Briefing”, Civitas, undated). Iain Murray comments as does Mark Steyn (“Blunkett’s ban will fan the flames”, Daily Telegraph, Jul. 13)(via AtlanticBlog). More: Mick Hume, “Don’t you just hate the Illiberati?”, The Times/Spiked-Online, Jul. 12. For earlier proposals along the same lines, see Oct. 19-21, 2001.

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Ireland’s Personal Injuries Assessment Board

In a far-reaching reform intended to curb its rising litigation rate, Ireland recently adopted the system sometimes known as scheduled damages: an official panel, the Personal Injuries Assessment Board, has been established to publish recommended guidelines (the “Quantum”) for the pain and suffering component of sued-over serious injuries, thus reducing the need to litigate each damage determination afresh. Scheduled compensation and like devices are often encountered in European court systems but, aside from workers’ compensation, are virtually unknown here. I discuss the Irish reforms and their implications at more length today on Point of Law.

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They’re using your name! Let’s get ’em!

The central character in a new Tom Hanks movie, “The Terminal”, is a hapless Eastern European tourist by the name of “Viktor Navorski,” a name recalling that of the veteran left-wing author and Nation magazine publisher Victor Navasky. “Whenever a commercial for ‘The Terminal’ appeared on television, my phone would ring and it would be another attorney assuring me that my ship had come in. Clearly I had a case for “misappropriation of my name and likeness,’ ‘expropriation of my right of publicity’ and my favorite, ‘product disparagement.'” (Victor Navasky, “You Say Navorski, He Says Navasky”, Los Angeles Times, Jul. 5).

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