First Amendment Rights and Censorship: Cardigans' Case Analysis

This legal memo addresses a case involving Cardigans, a clothing line, and the potential violation of their First Amendment rights due to censorship of their commercial by WBLAH, a local television station. The memo analyzes the situation, focusing on freedom of speech and the denial of broadcasting the commercial. It references the First Amendment and the landmark case of Federal Communications Commission v. Pacifica Foundation to establish a legal framework for the Cardigans' defense. The memo argues that the brand's name and slogan, which highlight product comfort, do not constitute indecency and that WBLAH's refusal to air the commercial infringes upon Cardigans' First Amendment rights. The memo suggests that the censorship provisions in the US lack a predefined standard for indecency, allowing for case-by-case interpretation based on socio-cultural norms, and concludes that WBLAH's denial of the commercial is a breach of Cardigans' rights.

MEMO
FIRST AMENDMENT & CENSORSHIP
STUDENT ID:
[Pick the date]

MEMO
Date: March 12th, 2019
To: Rice E. Roni, Supervising Attorney, CARDWARE Inc.
From: Paralegal (Corporate Counsel CARDWARE)
Re: The Cardigans Defense
Dear Sir
This memo aims to introduce this interesting case where a rather controversial name of the
clothing line by Cardigans has led to potential violation of First amendment rights related to
the freedom of speech. The slogan of their clothing line is “So light You Won’t Know You
are Wearing a Thing!” which furthers the issue. Owing to the name of the brand and the
controversial slogan, the local television station WBLAH has denied airing the related
commercial of the product.
The first amendment states the following
“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the government for a redress of grievances”
(Friendly, 2013, p.68)
In wake of the above clause and enforcement of the same in both letter and spirit, it seems
that the underlying rights guaranteed to Cardigans’ have been unreasonably abridged.
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MEMO
A potential way to present a defense for the Cardigans’ is to refer to the Federal
Communications Commission v. Pacifica Foundation case. In this 1978 case, the broadcast of
the twelve minute monologue under the title “Filthy Words” was considered indecent owing
to repeated and deliberate use of words related to sexual and excretory activities. Also, one of
the considerations by the court to make the decision was that the broadcast time was
afternoon when the monologue could be heard by children (Sheehan, 2013). It is imperative
to note however that the verdict did not provide any defined standard for indecency and
considered the use of seven particular words as indecency. In relation to indecent content, the
timing becomes imperative as has been highlighted in the Action for Children’s Television v.
FCC case whereby the court upheld that indecent content cannot be aired between 6am and
10pm (US Legal, nd).
In wake of the above two cases, it is apparent that the key question is to determine if the
usage of a controversial name and slogan by Cardigans’ amounts to indecency in the current
context. A major weakness of the censorship provisions in the US is that there is no pre-
defined standard to outline indecent broadcast which leaves room for interpretation on case ot
case basis. However, a positive aspect associated with this approach is that it allows the court
to decide on indecency in the context of the existing socio-cultural norms without being
bounded by precedents (Shiffrin, 2014).
With regards to the given scenario, WBLAH has decided to deny commercial broadcast of
the content on the grounds of indecency. Clearly, there can be no other grounds on which the
broadcast can be denied as it would amount to violation of First Amendment rights for
Cardigans’. The name of the brand along with slogan clearly does not contain any indecent
words. Additionally, the brand and slogan are potentially highlighting the attributes of the
product in particular their comfort and flexibility. Hence, it is highly likely that refusal on
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MEMO
part of WBLAH to broadcast the content has led to breach of First Amendment rights for
Cardigans’ (Sheehan, 2013).
Thank you
Paralegal (Corporate Counsel CARDWARE)
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MEMO
References
Friendly, F. W. (2013). The good guys, the bad guys and the First Amendment: Free speech
vs. fairness in broadcasting. New York, NY: Random House.
Sheehan, K. B. (2013). Controversies in contemporary advertising. New York, NY: Sage
Publications.
Shiffrin, S. H. (2014). The first amendment, democracy, and romance. Princeton: Princeton
University Press.
US Legal (n.d.) First Amendment And Censorship, Retrieved from
https://entertainmentlaw.uslegal.com/censorship/first-amendment-and-censorship/
#sthash.AnrMIuEN.dpuf
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