Day 024 - 15 Sep 94 - Page 47


     
     1
     2   MR. RAMPTON:  Your Lordship is absolutely right; the response
     3        is at 164.
     4
     5   MR. JUSTICE BELL:  164.  157 has a detailed answer from
     6        the -----
     7
     8   MS. STEEL:  That is the May 4th letter?
     9
    10   MR. JUSTICE BELL:  That is the May 4th letter.
    11
    12   MS. STEEL:  I was just saying it might be easier to look at
    13        Exhibit 8 because then we can still keep the
    14        advertisements open.
    15
    16   MR. JUSTICE BELL:  Yes, very well.
    17
    18   MS. STEEL:   If you could turn to Exhibit 8?
    19
    20   MR. JUSTICE BELL:  It comes after the extracts from ads.
    21
    22   THE WITNESS:  It appears in the volume binder that I have, your
    23        Lordship, it is missing the first page.
    24
    25   MS. STEEL:   I think we have another copy here.
    26
    27   MR. JUSTICE BELL:  There is a page 3, your specific
    28        allegations, it has on it, you have that?
    29
    30   THE WITNESS:   Yes.
    31
    32   MS. STEEL:   If we are turning to this letter, I think there is
    33        actually a point on the first page that we wanted to deal
    34        with, so I will hand this up anyway.  It has the first
    35        page on it. (Handed)  Just have a quick read through the
    36        first few paragraphs of that.
    37
    38        In relation to the second paragraph there are complaints
    39        of a chilling effect on McDonald's first amendment rights
    40        and constitutionally protected speech.  Is there anything
    41        you would like to say in answer to that?
    42        A.  Yes, I would.  It is wrong and it borders on nonsense;
    43        first -- to address the latter -- for McDonald's to say
    44        that a letter that was sent to McDonald's after the fact,
    45        after the advertisements appeared, was a prior restraint,
    46        is just false.  There is no under our law prior restraint
    47        of something that has already happened.  I do not believe
    48        that, as a matter of English language, you can have prior
    49        restraint of an event that has already past.  This
    50        represents, I think, an effort by Mr. Califano to throw 
    51        around a lot of "first amendment" buzz words and hope some 
    52        stick. 
    53
    54        But let me address his accusation that this is a
    55        calculated effort to have a chilling effect on McDonald's
    56        first amendment rights, because it was not.  The doctrine
    57        of freedom of speech for commercial advertisers is a
    58        relatively recently developed doctrine under our
    59        jurisprudence.  Until around 20 to 30 years ago our courts
    60        did not specifically recognise any free speech, any first

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