Censorship The suppression or proscription of speech or writing that is deemed obscene, indecent, or unduly controversial.
The term censorship derives from the official duties of the Roman censor who, beginning in 443 b.c., conducted the census by counting, assessing, and evaluating the populace. Originally neutral in tone, the term has come to mean the suppression of ideas or images by the government or others with authority.
Throughout history, societies practiced various forms of censorship in the belief that the community, as represented by the government, was responsible for molding the individual. For example, the ancient Greek philosopher Plato advocated various degrees of censorship in The Republic; the content of important texts and the dissemination of knowledge were tightly controlled in ancient Chinese society as is much information in modern China; and for centuries the Roman Catholic Church's Index Librorum Prohibitorum proscribed much literature as contrary to the church's teachings.
The English-speaking world began wrestling with issues of censorship in the seventeenth century. In his Areopagitica (1644), John Milton argued in favor of the right to publish, free from government restraint. In the United States, the First Amendment to the Constitution (1787) guarantees Freedom of Speech and Freedom of the Press. When a U.S. government agency attempts to prohibit speech or writing, the party being censored frequently raises these First Amendment rights. Such cases usually involve communication that the government perceives as harmful to itself or the public.
Abortion In some cases, the government can constitutionally censor the speech of those who receive federal funding. For example, the Supreme Court ruled in Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991), that, without restricting First Amendment rights, the government can ban Abortion counseling in federally funded health clinics.
Prisoners' Mail If the government's interest is penological it also has broader rights to censor speech. Prisoners' outgoing mail can be censored in order to thwart escape plans, shield the recipients from obscene or menacing letters, or circumvent inaccurate or adverse reports about prison conditions. Under the Supreme Court ruling in Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974), prison administrators can censor prisoners' personal correspondence only if it is necessary to maintain security, order, or rehabilitation efforts. Such censorship can be neither random nor excessively troublesome.
Entertainment Perhaps the most visible form of censorship is that affecting the entertainment industry. Theater and film, as types of public entertainment, affect the common interest and can hence be subjected to certain types of governmental regulation. But attempts to regulate or censor often risk obstructing the free speech rights of playwrights, screenwriters, filmmakers, performers, and distributors.
The U.S. Supreme Court has ruled that it is lawful to censor obscene entertainment to safeguard children from Pornography and to protect adults from unknowingly or involuntarily viewing indecent materials (Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 ). Although Supreme Court interpretation permits individuals to view Obscenity in the privacy of their homes (Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 ), theaters and movie houses are public places and therefore subject to regulation (Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 ). The difficulty with such censorship is in trying to determine what is "obscene."
In miller v. california, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the Supreme Court concluded that a work is obscene and can be regulated if it appeals to a viewer's prurient interest; portrays sexual conduct in a patently offensive way; and lacks serious literary, artistic, political, or scientific value. The Court further ruled that interpretations of this definition may vary across the United States and that communities may apply their own local standards to determine obscenity.
To avoid government censorship, the Motion Picture Association of America (MPAA) regulates itself through a voluntary rating system. The system does not have statutory authority but is used to help the industry conform with statutes designed to protect children. Recognizing a 1968 Supreme Court decision that favored limited censorship for minors (Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195), the MPAA devised a rating system based on the viewer's age. A G rating signals that subject matter is suitable for general audiences; PG stands for Parental Guidance Suggested; PG-13 strongly advises guidance for children under age 13 because of possibly inappropriate material; R requires accompaniment by an adult for children under age 17, or 18 in some states; and NC-17 or X prohibit anyone under age 17, or 18 in some states, from entering the theater.
Radio and television have also met with governmental pressure to control the content of their broadcasts. Spurred by the belief that violence on television adversely affects children's behavior and attitudes, Congress has attempted several times to encourage the media to adopt voluntary guidelines in the hope that less violence on television will lead to a less violent society. Although none of Congress's acts have been deemed outright censorship, government intrusion into broadcasting to discourage certain types of speech has not been welcomed by all. The various pieces of legislation raise questions about media self-censorship and the role of the Federal Communications Commission (FCC) in regulating freedom of expression.
In response to congressional pressure the National Association of Broadcasters adopted the Family Viewing Policy in 1974 to limit the first hour of prime-time programming to material suitable for families. The policy was found unconstitutional in 1976 (Writers Guild of America, West, Inc. v. F.C.C., 423 F. Supp. 1064 [C.D. Cal., 1976]).
Congress addressed the content of children's television with the Children's Television Act of 1990 (47 U.S.C.A. §§ 303a–303b [Supp. III 1991]), which limits the amount of advertising on children's television and compels broadcasters to air educational programs. Failure to comply with the act could jeopardize renewal of a station's license. Critics point out that the act has not improved children's programming because of its vague standards and the FCC's disinclination to enforce it.
The Television Violence Act (47 U.S.C.A. § 303c [Supp. III 1991]), proposed in 1986 by Senator Paul Simon (D-Ill.), was signed into law by President george h.w. bush in December 1990. This act, which expired in 1993, was intended to prompt the networks, cable industry, and independent stations to decrease the amount of violence shown on television. Although it did not constitute direct government regulation, the act was criticized as a governmental attempt to impose its values on society by discouraging, if not suppressing, unpopular ideas.The Telecommunications Act of 1996, 110 Stat. 56, required television manufacturers to create a chip, known as the V-chip, which allows users, presumably parents, to block out programs based on their sexual or violent content. The chip, which has been installed in television sets manufactured since 1999, operates in conjunction with a voluntary rating system implemented by TV broadcasters that rates programs for violence and sexual content.
Radio broadcasts have also come under scrutiny. In FCC v. Pacifica Foundation, 438 U.S. 726, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 (1978), the Supreme Court ruled that a daytime broadcast of George Carlin's "Seven Dirty Words" monologue violated the prohibition of indecency in 18 U.S.C.A. § 1464 (1948) and was therefore subject to regulation. To many, this ruling gave the FCC further authority to censor speech and dictate values.
Music Just as the entertainment industry has faced regulation or censorship for allegedly violent, obscene, or indecent material, so has the recording industry. Claiming that some popular music erodes morals by encouraging violence, drug abuse, and sexual promiscuity, the Parents' Music Resource Center, founded in 1985 by Tipper Gore, the wife of the future vice president, albert gore, successfully lobbied the music industry to place warning labels on records that may feature lyrics inappropriate for children.
Concerned about the rising rate of violent crime against law enforcement officers, the assistant director of public affairs for the Federal Bureau of Investigation (FBI) sent a letter in August 1989 to Priority Records to protest a rap group's lyrics. N.W.A., a Los Angeles-based rap group, recorded on its album Straight Outta Compton the song "Fuck tha Police," which violently protested police brutality. Although the letter from the FBI was a protest, not an attempt at regulation, many in the music industry interpreted it as an example of indirect censorship through intimidation.
Perhaps the most famous legal proceedings to censor music involved the rap group 2 Live Crew. In early 1990, a Florida circuit judge banned all sales of the group's album As Nasty As They Wanna Be on the grounds that the lyrics of several of its songs, including "Me So Horny," violated community standards for obscenity. The group brought suit to have the ban lifted in Skyywalker Records v. Navarro, 742 F. Supp. 638 (S.D. Fla. 1990), but the judge upheld the obscenity ruling. A record store owner was arrested for continuing to sell the album and two members of 2 Live Crew were arrested on obscenity charges after a performance. The band members were acquitted of all charges in October 1990, but the debate continues between those demanding free expression in music and those seeking to censor allegedly obscene material.
Art For almost as long as artists have been creating art, governments have both supported and censored artists' work. Ancient Athens, the Roman Empire, and the medieval Catholic Church financed many projects, whereas totalitarian regimes, for example, banned many works and repressed artists. The U.S. Congress was reluctant to fund art that might subsequently be construed as national art, or as government-approved art until 1960s activism encouraged it to do so. In 1965, the National Foundation on the Arts and the Humanities was established to foster excellence in the arts. It is composed of two divisions, the National Endowment for the Arts (NEA) and the National Endowment for the Humanities (NEH). Among its many interests, the NEA provides stipends to deserving artists.
Controversy over the role of government support of the arts arose in the late 1980s with two artists who received NEA funding. In 1988, the photographer Andres Serrano received harsh condemnation for his photograph titled Piss Christ, which depicted a plastic crucifix floating in a jar of Serrano's urine. Numerous senators sent letters of protest to the NEA, insisting that the agency cease underwriting vulgar art. A second furor arose in 1989 over the work of another photographer, Robert Mapplethorpe, who received NEA support for his work, which depicted flowers, nude children, and homosexuality and sadomasochism.
Senator jesse helms (R-N.C.) argued the most vociferously against the NEA's choices and introduced legislation to ban funding of "obscene or indecent art" (1989 H.R. 2788 [codified at 20 U.S.C.A. § 953 et seq. (1989)]). The Helms Amendment, adopted in October 1989, gave the NEA great power and latitude to define obscenity and quash alternative artistic visions. To enforce the new amendment, the NEA established an "obscenity pledge," which required artists to promise they would not use government money to create works of an obscene nature. The art world strongly resisted this measure: many museum directors resigned in protest and several well-known artists returned their NEA grants.
Two important cases tested the power of the NEA to censor artistic production. In Bella Lewitsky Dance Foundation v. Frohnmayer, 754 F. Supp. 774 (C.D. Cal. 1991), a dance company refused to sign the obscenity pledge and sued on the ground that the pledge was unconstitutional. A California district court agreed that the pledge violated the First Amendment right to free speech and that its vagueness denied the dance company due process under the Fifth Amendment.
In New School v. Frohnmayer, No. 90-3510 (S.D.N.Y. 1990), the New School for Social Research, in New York City, turned down a grant, claiming that the obscenity pledge acted as Prior Restraint and therefore breached the school's First Amendment rights. Before the constitutionality of the prior restraint argument was decided, the NEA released the school from its obligation to sign the pledge.
The NEA abolished the obscenity pledge in November 1990, but in its place instituted a "decency clause" (1990 Amendments, Pub. L. No. 101-512, § 103(b), 104 Stat. 1963 [codified at 20 U.S.C.A. § 954(d)(1990)]), which required award recipients to ensure that their works met certain standards of decency. Failure to comply with this demand could mean suspension of grant payments.
Again the art world protested. In Finley v. NEA, 795 F. Supp. 1457 (C.D. Cal. 1992), artists known as the NEA Four—Karen Finley, John Fleck, Holly Hughes, and Tim Miller—sued the NEA over the decency clause. A California district court agreed with the artists. The Finley court held that the decency clause, like the obscenity pledge, was unconstitutional because its vagueness denied the artists the due process guaranteed by the Fifth Amendment and because its too-general restriction suppressed speech.
Books U.S. parents send their children to public schools to receive an education and to learn the fundamental values on which their democratic society is based. Conflict ensues when parents believe that certain schoolbooks contain material that is objectionable on political, moral, or religious grounds and should be banned in order to protect their children from exposure to allegedly harmful ideas. In some instances school boards have responded by physically removing books from school library shelves. In general, advocates of book banning maintain that censorship is warranted to redress social ills, whereas critics believe that freedom of speech is more important and useful to society than imposing values through censorship.
Book banning as a way to remedy social problems was first tested by the Supreme Court in Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982). In Pico, parents objected to nine books in the high school library, most of which were subsequently removed by the school board. The nine books were Slaughterhouse Five, by Kurt Vonnegut Jr.; Naked Ape, by Desmond Morris; Down These Mean Streets, by Piri Thomas; Best Short Stories of Negro Writers, edited by Langston Hughes; Laughing Boy, by Oliver LaFarge; Black Boy, by Richard Wright; A Hero Ain't Nothin' But a Sandwich, by Alice Childress; Soul on Ice, by eldridge cleaver; and Go Ask Alice, by an anonymous author.
Pico debated the authority of local school boards to censor material in the interest of protecting students. The case reached the Supreme Court because lower courts were unable to devise standards for testing the constitutionality of book removal. The Supreme Court ruled that it is unconstitutional for public school boards to abridge students' First Amendment rights by banning books. Although school boards have the power to determine which books should sit on library shelves, they do not have the authority to censor.
Books published by commercial presses for sale to the general public sometimes meet with harsh condemnation and subsequent action that could be tantamount to censorship. In November 1990, Simon and Schuster canceled its contract with author Bret E. Ellis to publish his novel American Psycho, citing the work's graphic violence and sexual brutality. The National Writers Union decried the cancellation as contrary to free speech and artistic expression and as censorship. The publishing house defended its editorial judgment by claiming it did not want to put its imprint on a book of questionable taste and value. Vintage Books, a division of Random House, soon acquired the novel, and published it in March 1991.
Students' Speech Students' free speech rights sometimes clash with schools' interest in maintaining control of public education. Students' First Amendment liberties were affirmed by the landmark tinker v. des moines independent community school district, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), which ruled that public school students could not be penalized for wearing symbols, such as black armbands, to protest the Vietnam War.
Two subsequent cases dealing with issues of censorship in school newspapers pointed to a more restrictive judicial view of students' right to free expression. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988), the Supreme Court ruled in favor of a Hazelwood, Missouri, school principal who removed several articles from a student newspaper. The articles dealt with teen pregnancy and a student's feelings about her parents' Divorce. The court in Hazelwood held that a school newspaper is not a public forum, and thus granted school officials the right to determine what type of student speech is appropriate and to regulate such speech.
Three years later, the ruling in Planned Parenthood v. Clark County School District, 941 F.2d 817 (9th Cir. 1991), was based on Hazelwood. In Planned Parenthood, a public high school newspaper solicited advertisements from local businesses, including Planned Parenthood. The principal refused to allow Planned Parenthood to place an advertisement in school publications and Planned Parenthood sued the school district. The Ninth Circuit Court of Appeals upheld a district court decision that a public high school publication is not a public forum and that the school could therefore accept or reject advertisements. Both Hazelwood and Planned Parenthood concluded that because public high schools are nonpublic forums, school districts can apply a limited degree of censorship.
Hundreds of public universities in the United States have speech codes to regulate students' choice of words. Speech can be constitutionally curtailed in some circumstances. For example, public Colleges and Universities can forbid threats of violence, prohibit obscene language and conduct (although it is extremely difficult to define or prove obscenity), and punish students for using defamatory speech against each other, all without violating the First Amendment. Numerous cases have successfully contested free speech limitations on campus, suggesting that a majority of these codes are unconstitutional.
In Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989), a biopsychology student maintained that the university's speech code prevented him from freely discussing controversial ideas about biologically based differences between the sexes and races. A district court ruled that the university's code proscribed too great a range of speech and therefore was an unconstitutional infringement on the plaintiff's First Amendment rights. The court also held that the overbroad nature of the code denied his due process rights.
A University of Wisconsin student was accused of violating the university's speech codes by yelling rude comments at a woman. In U.W.M. Post, Inc. v. Board of Regents, 774 F. Supp. 1163 (E.D. Wis. 1991), the university's speech code was also struck down as overbroad. Two years later school officials punished fraternity brothers at George Mason University for dressing in drag and staging an "ugly woman contest." In Iota X Chapter v. George Mason University, 993 F.2d 386 (1993), the Fourth Circuit found that the university had violated the First Amendment because it did not sanction the fraternity merely for its conduct, but rather for the message conveyed by the "ugly woman contest," which ran counter to the views the university sought to foster.
Internet Computer-mediated communication grows explosively every year and in some ways outpaces and obviates current legal principles. The prevailing concept of law applies to real-world events and transactions, and, as those in the legal field are realizing, may unravel when exercised in cyberspace. As more and more people transmit widely divergent messages on the electronic highway, issues of free speech and censorship become increasingly complicated and regulations difficult to enforce.
The first case of criminal prosecution of electronic communication involved the distribution of pornography over an electronic bulletin board system (BBS). In United States v. Thomas, No. CR-94-20019-G (W.D. Tenn. 1994), Robert Thomas and Carleen Thomas were found guilty of disseminating obscene materials by interstate telephone lines and computer. From their home in California, the Thomases ran an adults-only private BBS from which subscribers could download computer graphics files and order sexually explicit photo-graphs and videotapes while on-line. To gather evidence against the couple, a Memphis postal inspector, under an assumed name, downloaded to his computer many of the pornographic electronic files and ordered tapes.
The Thomases were charged with, among other things, transporting obscene materials across state lines. The couple attempted to transfer their case to the Northern District of California, so that their materials would be measured against that community's standards of obscenity, rather than the obscenity standards of the Western District of Tennessee. The district judge denied their request, noting that in obscenity prosecutions the trial can be held either in the district from which the material was sent or where it was received.
The "virtual" nature of cyberspace poses a number of problems for courts and legislatures on the issue of obscenity. Among the most difficult of these is the issue of community standards. Because the Internet brings together people from all over the United States and all over the world, it defies identification with any particular community. Other difficulties are the criminal element of knowledge and the issue of dissemination. Persons may post and receive information on Internet bulletin boards without the knowledge of those who maintain the BBS, making it difficult to determine whether the BBS operators "knowingly disseminated" obscene materials.
In 1996, Congress passed the Communications Decency Act (CDA), which punished disseminating "indecent" material over the Internet. The Supreme Court struck down the law in Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). Although the Court recognized the "legitimacy and importance of the congressional goal of protecting children from harmful materials," it ruled that the CDA abridged freedom of speech and therefore was unconstitutional. The Court also noted that its previous decisions limiting free speech out of concern for the protection of children were inapplicable in this case, and that the CDA differed from the laws and orders upheld in previous cases in significant ways. For example, the CDA did not allow parents to consent to their children's use of restricted materials; it was not limited to commercial transactions; it failed to provide a definition of "indecent"; and its broad prohibitions were not limited to particular times of the day. Finally, the act's restrictions could not be analyzed as a form of time, place, and manner regulation because it was a content-based blanket restriction on speech.
Congress lost little time in responding to this decision. In 1998, it quickly passed the Child Online Protection Act (COPA), which would make it illegal to use the World Wide Web to communicate "for commercial purposes" any material considered to be "harmful to minors." The law also incorporated the three-part obscenity test that the Supreme Court formulated in Miller v. California. The American Civil Liberties Union (ACLU) and a group of on-line website operators challenged the constitutionality of COPA, arguing that it was over-broad. In addition, the plaintiffs contended that the use of the community standards test would give any community in the United States the ability to file civil and criminal lawsuits under COPA. This meant that the most conservative community in the country could dictate the content of the Internet. A federal appeals court in Philadelphia agreed with these arguments and the government appealed again to the Supreme Court.
The Supreme Court, in Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002), produced a decision that failed to give a clear direction. The use of community standards did not by itself make the statute overbroad and unconstitutional under the First Amendment. Apart from that conclusion, the Court could not agree, with five of the justices producing separate opinions. A majority, however, had reservations about the COPA. A number of the justices expressed concern that without a national standard it would be difficult for operators of Internet services to know when they had crossed a line and had subjected themselves to liability. The case was remanded to the lower courts for a full examination of the law on all issues. The fate of COPA is likely to be decided by the Court in a future decision.
As the popularity of the Internet continues to grow, more issues involving censorship are likely to appear. And with the advancement of high-speed Internet access, movies, videos, text, and pictures can now be downloaded with greater ease, creating even more opportunities for legal debate.
Movie RatingA classification given to a commercially released motion picture that indicates to consumers whether the film contains sex, profanity, violence, or other subject matter that may be inappropriate for persons in certain age groups.
The idea for a nationwide movie rating system took root in the late 1960s. In 1966 Jack Valenti, a former aide to President lyndon b. johnson, became president of the Motion Picture Association of America (MPAA). That same year the film Who's Afraid of Virginia Woolf was completed. The film used terms such as screw and hump to refer to sexual intercourse. Because these terms were considered controversial language, Valenti met with officials at Warner Brothers before the film's release, and the group decided which terms could be deleted and which ones were necessary to the film's content.
The experience led Valenti in 1968 to implement a voluntary film ratings system, which has remained in effect, in varying forms, since that time. The MPAA that year created the Classification and Ratings Administration (CARA) to designate films with one of four ratings: G (general audiences), M (mature audiences), R (children under 16 years of age not admitted without parent or guardian), and X (children under 17 years of age not admitted). Three years later M became PG (parental guidance suggested). In 1984, in response to violence in the movie Indiana Jones and the Temple of Doom, the film review board instituted the PG-13 rating, which cautions parents that the film's contents may be inappropriate for children under age 13. In 1990 the board responded to criticism that the X rating unfairly categorized artistic adult films, such as Midnight Cowboy, with hard-core Pornography. In that year the board replaced X with NC-17.
In the movie business, a better rating is generally a lower rating. Movies typically make more money when they appeal to the widest possible audience. This rule holds true particularly with motion picture video sales. Many video outlets limit their inventory to movies with ratings no higher than PG-13 or R. Some theaters refuse to show movies with the NC-17 rating, and some newspapers refuse to carry advertisements for movies with the NC-17 rating. A movie studio therefore wants its film to earn the least restrictive rating possible.
One exception to this general rule is the marketing of pornographic films. Because studies have suggested that sexually explicit films become more desirable when they are restricted, the pornographic film industry voluntarily labels its films X or XXX in an effort to increase sales. XXX is a marketing tool, not an actual MPAA rating.Although the MPAA publicizes the meaning of each rating, most moviegoers do not know how the ratings are assigned. A ratings board, consisting of 11 members, views approximately 600 films a year, discusses each film's content, and chooses a rating for each film. Valenti and the board's chair choose all the board members and keep their identities secret to prevent film producers and studios from attempting to influence them. The members work full-time, serving terms of varying length. Members must be parents and cannot be involved with the motion picture industry, but they must meet no other requirements. Members base their ratings on a set of MPAA guidelines, some of which are precise whereas others call for individual taste and judgment. According to one MPAA guideline, a certain word used merely as an expletive in a film may garner a PG rating whereas the same word used to convey a sexual meaning may result in an R rating.
Directors who are unhappy with the board's rating may cut or edit objectionable film footage and resubmit the movie, or they may appeal the rating. Movie producers have the right to know the reason behind the rating their film receives. However, directors and producers have complained that the board's reasons are often unclear or too general, requiring them to edit a film several times before it receives the target rating. Some directors have added especially gory scenes to the first version of a film with the idea that they will cut the gore during the ratings process, leaving the film in its intended state with the desired rating.
Because the movie ratings system is a voluntary process not under government control, First Amendment protections do not apply to ratings. If filmmakers believe that the rating for their film is too restrictive, they may appeal to a special board, which is composed of movie industry professionals rather than laypersons. The board screens the film, consults with the original ratings board, and listens to the complaints of the producer or director before voting. A two-thirds majority will overturn the original rating, and the decision of the appeals board is final.
No law requires filmmakers to undergo the ratings process; it is strictly voluntary. Yet, with very few exceptions, filmmakers comply. The system has the support of major film studios, theater owners, and video rental chains that rely on customer satisfaction for a healthy business. It is the movie industry that pays for the privilege of having a film rated; the producer of a film pays a fee for this service that is based on the cost of film production.
The ratings system has critics. Filmmakers complain that the system is Arbitrary and point to instances in which films with similar content have different ratings. Producers and directors have also alleged racism, arguing that films depicting sexual encounters between African Americans receive more restrictive ratings than films involving sex between white characters. Critics also allege sex bias in that movies with frontal nude shots of women commonly receive R ratings, whereas movies with similar nude shots of men commonly receive X or NC-17 ratings. And major studios, say some critics, receive better treatment from the ratings board than do smaller, independent studios, which also have less money to spend on reediting and resubmitting movies in an effort to achieve a better rating.
Entertainment LawThe areas of law governing professionals and businesses in the entertainment industry, particularly contracts andIntellectual Property; more particularly, certain legal traditions and aspects of these areas of law that are unique to the entertainment industry.
The entertainment industry includes the fields of theater, film, fine art, dance, opera, music, literary publishing, television, and radio. These fields share a common mission of selling or otherwise profiting from creative works or services provided by writers, songwriters, musicians, and other artists.
Contracts The entertainment industry exists in a state of economic uncertainty. Entertainment companies continually form, merge, re-form, and dissolve. Furthermore, consumer tastes in artistic products can change quickly, thrusting certain artists or artistic movements to the heights of popularity and reducing others to obscurity. Because of this instability, the entertainment industry relies on complex contracts, which usually are drafted to protect entertainment companies against economic risk.
Personal Service Agreements The Personal Service agreement is a primary legal instrument in the entertainment industry. It is negotiated between an artist and a company that manufactures, promotes, and distributes the artist's goods or services. The agreement often binds the artist to produce for one company for a certain period of time. Personal service agreements are often governed by statutes and are often the subject of litigation because they restrict the rights of artists to perform or create for any entity except for the company with whom they have contracted.
Artists generally do not have the resources necessary to manufacture, market, and distribute their goods or services. Instead, they must find an appropriate entertainment company to do so. Entertainment producers (e.g., book publishers, record companies, movie studios, and theaters) often invest large amounts of time and money in promoting and selling artists' talents or products to consumers. Most artists will fail to earn a profit for their producer. A few, however, will earn enormous sums. To ensure that artists who generate a profit will remain with the company, producers use personal service agreements to bind artists for a certain time, during which the producers attempt to recover their investment in the artist, make a profit, and cover losses from less successful artists.
In some entertainment industries, personal service agreements are structured using options. Options give a producer the right to extend an agreement for several time periods. For example, a record company may contract with a musician to provide one album during the first year of the agreement, with an option to extend the contract. After one year, if the record company feels that it would be economically wise to release a second album by the musician, the record company may exercise its option and require the musician to provide the second album. Under option contracts such as this, producers can keep artists on their roster for many years, or as long as the artists remain profitable.
The Fiduciary Duty of Entertainment Attorneys: Joel v. GrubmanAn attorney has a duty to act solely in the client's best interests, to disclose any potential conflict of interest, and to withdraw if a conflict would impair the attorney's ability to represent the client. In 1992 pop singer Billy Joel sued his former attorney Allen J. Grubman and Grubman's law firm for $90 million, claiming that Grubman had committed Fraud and breach of contract. The suit alleged that while representing Joel throughout the 1980s, Grubman had defrauded the singer out of millions of dollars by negotiating secret deals with Joel's manager, Francis Weber, and by allowing Weber to control the law firm's representation, often in direct conflict with Joel's best interests. Joel claimed that if the firm had notified him of Weber's actions, Joel could have prevented millions of dollars in losses to his manager. The singer claimed that the law firm was concerned primarily with enhancing its own reputation by keeping him on its client roster, and did not want to risk losing Joel as a client by angering Weber.
Joel also alleged that Grubman failed to disclose that the law firm represented Joel's label, Sony Music, and that such representation was an inherent conflict of interest that biased Grubman's judgment during contract negotiations.
The law firm claimed that it had done nothing illegal or unethical in its representation of Joel, and stated that it was hired by Joel only to negotiate contracts, not to monitor the business ventures of Joel's manager. Furthermore, the firm claimed that Joel had earned millions of dollars as a result of his recording contract, proof that its advice to him during negotiations with the label were not affected by the firm's relationship with Sony.
The case sent shock waves through the entertainment industry, where it is not uncommon for attorneys to represent both sides of a contract negotiation, or at least have ongoing client relationships with both sides, and it is also not uncommon for an attorney to respect the decisions of an artist's manager even though the attorney's client is the artist. Joel and Grubman settled the case without disclosing the terms of settlement.
Attorney Misconduct Behavior by an attorney that conflicts with established rules of professional conduct and is punishable by disciplinary measures.More than any other profession, the legal profession is self-governing. That is, it is largely regulated by lawyers and judges themselves rather than by the government or outside agencies. In particular, the American Bar Association (ABA), the largest professional association for attorneys, governs the Practice of Law through its establishment of rules of conduct. These rules are then adopted, sometimes in a modified form, by state courts and enforced by court-appointed disciplinary committees or bar associations. Attorneys found to be in violation of professional standards are guilty of misconduct and subject to disciplinary procedures. Disciplinary action by a state bar association or other authority may include private reprimands; public censure; suspension of the ability to practice law; and, most severe of all, disbarment—permanent denial of the ability to practice law in that jurisdiction. The state supreme court is the final arbiter in questions of professional conduct in most jurisdictions.
Since 1908, the ABA has been responsible for defining the standards of proper conduct for the legal profession. These standards, many of them established by the ABA Standing Committee on Ethics and Professional Responsibility, are continuously evolving as society and the practice of law change over time. In 1969, the ABA passed its Model Code of Professional Responsibility, guidelines for proper legal conduct that were eventually adopted by all jurisdictions. The ABA modified the code by adopting the Model Rules of Professional Conduct in 1983. The model rules have been used by 40 states to create official guidelines for professional conduct; 11 states or jurisdictions, including Washington, D.C., and the Virgin Islands, have continued to base their ethical codes on the earlier model code. California has developed its own rules of professional conduct. Whatever their basis, these codes or rules define the lawyer's proper role and relationship to the client. It is essential that lawyers understand the ethical codes under which they must operate. Failure to do so may result in not only disciplinary action by the relevant professional authorities but also Malpractice suits against the lawyer. A malpractice suit may result in loss of money or the ability to work with specific clients.
Rule 8.4 of the Model Rules of Professional Conduct contains the following statements on attorney misconduct:It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) Engage in conduct involving dishonesty, Fraud, deceit or misrepresentation;
(d) Engage in conduct that is prejudicial to the administration of justice;
(e) State or imply an ability to influence improperly a government agency or official;
(f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
Besides issuing these general statements, the model rules set down many specific requirements for attorney conduct in different situations.
Because of an attorney's special relationship to the law, he or she is held to a special standard of conduct before the law, as the ABA asserts in its Lawyers' Manual on Professional Conduct:As members of the bar and officers of the court, lawyers are beneficiaries of the privilege of the practice of law and also are subject to higher duties and responsibilities than are non-lawyers. A lawyer's fiduciary duties arise from his status as a member of the legal profession and are expressed, at least in part, by the applicable rules of professional conduct.
The word fiduciary in this quotation comes from the Latin word fiducia, meaning "trust"; as a fiduciary, then, the attorney acts as the trusted representative of the client. Trust is thus a defining element of the legal profession, and without it, the practice of law could not exist. For that reason, the legal profession has created strict rules of conduct regarding the attorney's relationship with the client.
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