Day 024 - 15 Sep 94 - Page 47
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2 MR. RAMPTON: Your Lordship is absolutely right; the response
3 is at 164.
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5 MR. JUSTICE BELL: 164. 157 has a detailed answer from
6 the -----
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8 MS. STEEL: That is the May 4th letter?
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10 MR. JUSTICE BELL: That is the May 4th letter.
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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.
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16 MR. JUSTICE BELL: Yes, very well.
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18 MS. STEEL: If you could turn to Exhibit 8?
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20 MR. JUSTICE BELL: It comes after the extracts from ads.
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22 THE WITNESS: It appears in the volume binder that I have, your
23 Lordship, it is missing the first page.
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25 MS. STEEL: I think we have another copy here.
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27 MR. JUSTICE BELL: There is a page 3, your specific
28 allegations, it has on it, you have that?
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30 THE WITNESS: Yes.
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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.
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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.
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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
