1. a. Why did the Court of Appeals conclude that the Bad Frog label constituted commercial speech?
b. What is the significance of that decision?
2. Why did the Court of Appeals rule in Bad Frog’s favor?
3. A letter to the Buffalo News objecting to the Bad Frog decision:
...The U.S. Court of Appeals’ reasoning was that “vulgar materials enjoy wide currency in society today—including comic books for children.” Therefore, while offensive it is not illegal. I guess this means the sickies of the world can show us anything they want, even if we don’t want to see it. They have the right to offend us, but we have no rights not to be offended.
We all know what the extended middle finger means. I personally get offended when this gesture is directed at me, whether by humans or cartoon animals. I would like to show the Court of Appeals my opinion of their decision by extending my middle finger in their direction. I hope they enjoy this gesture. After all, it’s not illegal. But maybe it should be.
a. Do you agree with the letter writer that Bad Frog is an unwise decision? Explain.
b. Should “the finger” be an illegal gesture? Explain.
4. In online fantasy sports leagues, fans “draft” current professional players in baseball, football, etc. to create their own teams that then compete based on the actual performance of those players. A Missouri company, C.B.C. Distribution and Marketing, Inc., operated a for-profit online league. In 2005, Major League Baseball changed its licensing policies and declined to allow C.B.C. a license to continue using the names and statistics of major league baseball players. C.B.C. then sued claiming it had a First Amendment right to use the information while M.L.B. argued that the information was protected by the intellectual property/publicity rights of the players. Decide the case. Explain.
5. Two Rhode Island statutes prohibited all price advertising on liquor in the state, except for price tags and signs within a store itself which were not visible on the street. The state sought to reduce alcohol consumption. Two licensed liquor dealers challenged the statutes’ constitutionality.
a. How would you rule on that challenge? Explain.
b. Why would the elimination of price advertising arguably contribute to reduced alcohol consumption?
Bad Frog is a Michigan corporation that manufactures and markets several different types of alcoholic beverages under its “Bad Frog” trademark. This action concerns labels used by the company in the marketing of Bad Frog Beer, Bad Frog Lemon Lager, and Bad Frog Malt Liquor. Each label prominently features an artist’s rendering of a frog holding up its four-” fingered” right “hand,” with the back of the “hand” shown, the second “finger” extended, and the other three “ fingers” slightly curled.