Day 024 - 15 Sep 94 - Page 48


     
     1        amendment rights, by commercial advertisers such as
     2        McDonald's in this case.
     3
     4        Since that time, the United States Supreme Court and lower
     5        courts have recognised a limited right of free speech.  It
     6        is not unfettered.  For instance and specifically, by a
     7        subsequent decision of the United States Supreme court,
     8        there was obtained, in fact, by another Assistant Attorney
     9        General in Texas, the Supreme Court said that free speech,
    10        in essence, does not include the right to deceive.  The
    11        deceptive advertising, while speech, could be fully
    12        controlled by the state.
    13
    14        Therefore, we were not doing anything that would step on
    15        any rights that McDonald's had under the first amendment.
    16        Therefore, since nothing we did could impact on them, it
    17        certainly was not a calculated effort to have a chilling
    18        effect on their rights.  I should add that the term
    19        "chilling effect" is a term of art used in first
    20        amendment writings and opinions.
    21
    22   MR. JUSTICE BELL:  It crops up all the time, does it?
    23        A.  Yes, and it is an expression and it does have
    24        reference back to the concern whether, I think, if not
    25        exclusively, generally state action has the potential for
    26        stopping action in the future, have a chilling effect on
    27        action in the future, because we were only out to stop
    28        their illegal, deceptive advertising.  There was certainly
    29        no way we could calculatedly try to have a chilling effect
    30        on their legitimate first amendment rights.
    31
    32   MS. STEEL:  Going on to -----
    33
    34   MR. JUSTICE BELL:  I thought it was just the poetic licence of
    35        the author, but it is actually something which crops up in
    36        judgments, is it?
    37        A.  Judgments and to a great extent in writings in the
    38        first amendment area, I believe, on the area specifically
    39        as to prior restraint, but not only.  There can be prior
    40        restraint such as an injunction that says:  "Don't publish
    41        that article, don't say what you are about to say".  That
    42        is classic prior restraint.  There is a version of prior
    43        restraint that is, sort of, an implicit prior restraint;
    44        your actions taken in the past chill the expression that
    45        might happen in the future.
    46
    47   MS. STEEL:   Going on to the paragraph under No. 1, the
    48        advertising campaign, which states what they claim the
    49        purpose of the advertisements is, is there anything that
    50        you would want to say in response to that paragraph at the 
    51        bottom of that page and then going over to the top of the 
    52        next page? 
    53        A.  There too there is further support for our conclusion
    54        that it was intentional actions by McDonald's in running
    55        these advertisements, that they were intentionally trying
    56        to convince people that their food was across the menu
    57        nutritious.  They wanted to, as they put it, set the
    58        record straight.  I would not characterise it in that
    59        manner, but that is their view as expressed by their
    60        outside attorney.

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