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.
