unprotected category

In May 1970, Consumers Union published a seven-page article in Consumer Reports. The article evaluated medium-priced loudspeakers and included a boxed section on the Bose 901 system manufactured by Bose Corporation. The article described the system as unique and unconventional. It stated that individual instruments heard through the Bose system seemed to grow to gigantic proportions and tended to wander about the room. A violin appeared ten feet wide and a piano stretched from wall to wall. Bose Corporation took exception to the statements. After Consumers Union refused to publish a retraction, Bose filed a product disparagement action in the United States District Court for the District of Massachusetts. After protracted pretrial discovery, the district court denied summary judgment and conducted a nineteen-day bench trial on liability. At trial, engineer Arnold Seligson, who supervised the listening tests and prepared the internal report on which the article was based, testified for nearly six days. His initial report used the phrase “wander around the room.” During cross-examination he drew a sketch showing back-and-forth movement along the wall between the speakers. He explained that the word “about” meant what he had drawn. The district court found that the perceived movement was along the wall rather than about the room. It found the published statement false and disparaging. It found Seligson’s testimony claiming the words meant lateral movement not credible. It concluded that the statement had been published with actual malice. The Court of Appeals for the First Circuit reversed. It accepted the disparaging character of the statement but held that it would conduct a de novo review of the actual-malice determination rather than apply the clearly-erroneous standard. The Supreme Court granted certiorari to consider whether the Court of Appeals had erred in refusing to apply Rule 52(a).

In the predawn hours of June 21, 1990, petitioner R.A.V., then a juvenile, and several other teenagers assembled a crudely made cross by taping together broken chair legs and burned the cross inside the fenced yard of a black family that lived across the street from the house where R.A.V. was staying. Although this conduct could have been punished under several Minnesota statutes carrying significant penalties, the City of St. Paul chose to charge R.A.V. under the St. Paul Bias-Motivated Crime Ordinance. The ordinance provides that whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including but not limited to a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor. R.A.V. moved to dismiss the charge on the ground that the ordinance was substantially overbroad and impermissibly content-based and therefore facially invalid under the First Amendment, and the trial court granted the motion. The Minnesota Supreme Court reversed, construing the ordinance to reach only fighting words and concluding that it was not impermissibly content-based. This Court granted certiorari.

In November 1998, Massachusetts joined over forty other states in reaching a master settlement agreement with major cigarette manufacturers that provided monetary payments and injunctive relief. Shortly after the agreement, the Attorney General announced plans to issue consumer protection regulations to close gaps in the settlement and prevent recruitment of underage customers. In January 1999, the Attorney General promulgated comprehensive regulations under Mass. Gen. Laws ch. 93A § 2 governing the advertising and sale of cigarettes, smokeless tobacco, and cigars, with an effective date of February 1, 2000. The regulations contained three principal restrictions. Outdoor advertising, including billboards and signs visible from outside retail establishments, was prohibited within a 1,000-foot radius of any public playground, playground area in a public park, elementary school, or secondary school. Point-of-sale advertising was barred if any portion appeared lower than five feet from the floor in retail establishments within the same radius, unless the establishment was adult-only. Self-service displays were forbidden, and all tobacco products had to be placed behind counters accessible only to outlet personnel, with limited exceptions for adult-only stores and small text-only signs. Before the regulations took effect, petitioners—including Lorillard Tobacco Company, Brown & Williamson Tobacco Corporation, R. J. Reynolds Tobacco Company, Philip Morris Incorporated, U. S. Smokeless Tobacco Company, several cigar manufacturers and retailers, and an advertising agency—filed suit in the United States District Court for the District of Massachusetts. The complaint alleged that the regulations violated the Commerce Clause, the Supremacy Clause, the First and Fourteenth Amendments, and were preempted by the Federal Cigarette Labeling and Advertising Act for cigarettes. The District Court granted summary judgment to the Attorney General in two rulings. On appeal, the United States Court of Appeals for the First Circuit affirmed in part and reversed in part. The Supreme Court granted certiorari in 2001 to address the preemption and First Amendment questions.

In 1974 Michael Milkovich served as head wrestling coach at Maple Heights High School in Ohio. During a match against Mentor High School a fight broke out between the teams. Several wrestlers were injured and one opposing coach was struck in the face. Milkovich and Maple Heights superintendent H. Don Scott testified before the Ohio High School Athletic Association that Milkovich had not been involved in the altercation. The OHSAA censured Milkovich and placed the Maple Heights team on probation for one year. Several wrestlers and their parents sued the OHSAA in the Court of Common Pleas of Franklin County, Ohio, alleging denial of due process. Both Milkovich and Scott testified in that proceeding. The court overturned the OHSAA sanctions on due process grounds. The day after the decision the News-Herald published a column by J. Theodore Diadiun. The column bore the heading "Maple beat the law with the big lie.'" It stated that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth. It further stated that by the time the hearing before Judge Martin rolled around, Milkovich and Scott apparently had their version of the incident polished and reconstructed, and the judge apparently believed them. Milkovich filed a defamation action against Diadiun and the newspaper’s owner, Lorain Journal Co., in the Court of Common Pleas of Lake County, Ohio. He alleged that the column accused him of committing perjury. The trial court granted a directed verdict for the defendants. The Ohio Court of Appeals reversed and remanded for trial. On remand the trial court granted summary judgment to the defendants and the Ohio Court of Appeals affirmed. In a parallel action brought by Superintendent Scott the Ohio Supreme Court held that the same column constituted protected opinion. Relying on that decision the Ohio Court of Appeals in Milkovich’s case affirmed summary judgment for the defendants. The Ohio Supreme Court dismissed Milkovich’s appeal for want of a substantial constitutional question. The United States Supreme Court granted certiorari.

In the summer of 1977, New York was terrorized by a serial killer popularly known as the Son of Sam. By the time David Berkowitz was identified as the killer and apprehended, the rights to his story were worth a substantial amount. The State quickly enacted the statute at issue, N. Y. Exec. Law § 632-a. The Son of Sam law requires any entity contracting with an accused or convicted person for a depiction of the crime to submit a copy of the contract to the New York State Crime Victims Board. It must turn over any income under that contract to the Board for deposit in an escrow account. The requirement applies to contracts in any medium of communication, including books. The Board holds the funds for the benefit of victims who bring civil actions within five years. After five years, it pays any remaining funds to the person or representatives. The statute broadly defines a person convicted of a crime to include anyone who has voluntarily and intelligently admitted the commission of a crime for which the person is not prosecuted. Since its enactment, the law has been invoked against Jean Harris, Mark David Chapman, and R. Foster Winans. In August 1981, Henry Hill entered into a contract with author Nicholas Pileggi for a book about his life. The following month, Hill and Pileggi signed a publishing agreement with Simon & Schuster. Wiseguy was published in January 1986. In January 1986, the Board notified Simon & Schuster of the contract and ordered it to furnish copies and suspend payments to Hill. By that time, Simon & Schuster had paid $96,250. It was holding $27,958 for Hill. Simon & Schuster brought suit in August 1987 under 42 U.S.C. § 1983 seeking a declaration that the Son of Sam law violates the First Amendment. After cross-motions for summary judgment, the District Court upheld the statute. A divided Court of Appeals affirmed. The Supreme Court granted certiorari.