At 09:29 AM 7/10/97 -0700, Tim May wrote:
I'm not a lawyer, but I am interested in the various ramifications--and the constitutionality--of recent "sweeping contracts" between vendors, lawmakers, consumers, etc.
Two recent example:
1. The "tobacco agreement." Supposedly a deal involving the transfer of $360 billion from some number of tobacco companies in exchange for dropping of liability suits, immunity from future claims, voluntary restrictions (!) on advertising, etc. (And the "etc." is especially complicated in this huge case.)
So far as I know, the agreement has no legal effect until and unless a bill is enacted in Congress. Once a bill is enacted, there can obviously be far-reaching ramifications. For instance, an individual's right to sue in tort can be cut off. Punitive damages can be abolished for the defined class of suits, etc. If such a bill is enacted, various groups would likely sue on the basis that it is unconstitutional. That's what happened with CDA -- the indecency provisions first became law, and then were overturned in the courts.
2. The "voluntary ratings" agreement being announced today by Al Gore and some of the television networks. (Earlier "voluntary agreements" were implemented, but, according to supporters of censorship, "failed." Hence the new push for newer voluntary restrictions.)
The big legal fight on ratings is whether any "state action" takes place. The First Amendment governs efforts by a federal or state government to restrict speech. If private companies "voluntarily" agree to do something, the First Amendment simply does not apply. But if the coercive power of the state forces them to do the same thing, then the courts can get involved under the First Amendment. Here, if the government is too explicit that it will ban certain speech unless the networks ban it, then a court might find that the government in fact is involved in an impermissible way.
The issue, it seems to me, is that ordinary concepts of illegality and civil liability are being swept aside in favor of these huge "deals" to reduce liability in exchange for various actions. Well, who is bound by these deals?
If "Tim's Tobacco Company" starts up next year, after this deal is "signed," is his company bound by this deal? If Tim the Smoker develops lung cancer, is he blocked from suing?
The basic concepts are pretty clear. A contract among various parties binds that group of parties. A statute of general applicability can regulate everyone in the jurisdiction. The existing tobacco companies can't bind "Tim's Tobacco Company" in their contract. However, if they support a bill in Congress, and the statute is enacted, then their actions might indeed play a role in restricting your actions later on. Peter Prof. Peter Swire Ohio State University College of Law mailto:swire.1@osu.edu web: http://www.osu.edu/units/law/swire.htm (in early stages of construction)