Question

37.) 10 Pts Please explain the rationale employed by the Court in deciding Bad Frog Brewery v NY State Liquor Control, and discuss why you think the Court reached a different conclusion in Mainstream Marketing v FTC & FCC. Both cases are posted on Canvas under Modules Con Law Cases.

Answer 1

The U.S. Court of Appeals for the Second Circuit reversed the judgment of the district court and remanded the case for judgment to be entered in favor of Bad Frog. The appellate court held that the NYSLAs denial of Bad Frog's application violated the First Amendment. The ban on the use of the labels lacked a “reasonable fit” with the state's interest in shielding minors from vulgarity, and the NYSLA did not adequately consider alternatives to the ban. The court acknowledged that the NYSLA's interest “in protecting children from vulgar and profane advertising” was “substantial.

Finally, as to whether the ban on the labels was more extensive than necessary to serve this interest, the court pointed out that there were “numerous less intrusive alternatives.” For example, the NYSLA's “concern could be less intrusively dealt with by placing restrictions on the permissible locations where the appellant's products may be displayed within … stores.”

Mainstream Marketing v FTC & FCC

Conclusion

Based on the foregoing findings and conclusions, where Plantiff is Mainstream Marketing & Defendant is FTC &FCC

ORDERED as follows:

Plaintiffs' consent motion to amend the complaint (# 34) is GRANTED.

2. Plaintiffs' (i.e Mianstream marketing )motion for summary judgment is GRANTED in part and DENIED in part. It is GRANTED as to Mianstream marketing ' claim that the FTC's amended Rules creating a do-not-call registry are unconstitutional under the First Amendment. It is DENIED in all other respects.

3. Defendants' motion for summary judgment (# 28) is GRANTED in part and DENIED in part. It is GRANTED as to plaintiffs' claim that the amended Rules concerning abandoned calls are invalid under Chevron. It is DENIED in all other respects.

4. The clerk shall enter judgment in favor of plaintiffs and against the FTC (1) enjoining the FTC from enforcing the amended Rules (issued in December 2002) creating and implementing a federal do-not-call registry and (2) dismissing with prejudice all of plaintiffs' remaining claims.

REASON:

The court reached to a different solution in the above case as the regulations were unconstitutional under the First Amendment and enjoined the FTC from implementing the registry.