freedom of expression

Include your word counts.
Your answer is due to me by 5:15 pm tomorrow (Dec. 4) – Miami time.
Submit it through Blackboard in a Microsoft Word file. If you have problems with Blackboard, email it to me.
This test is open-book and open-notes, but your work must be own and original. If you quote any material, cite it with a footnote. If you quote a case, you may simply use the case name in the text.
Do not consult with anyone or allow anyone to write all or part of your response.
This is not a research paper. You are to use only the material (e.g., cases, slides, notes, textbook, and linked materials) used in our course.
Using outside sources may hurt your grade.
Late responses may be penalized depending on the degree of lateness.

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ESSAY QUESTION #1: Pick A or B and write up to 650 words. Support your arguments and conclusions with relevant law, values, and cases. Consider any opposing arguments.

A.) Under the First Amendment, should public relations be treated as we treat advertising or as we treat political speech? Why or why not?

B.) What is government speech and why is it an important First Amendment topic?

ESSAY QUESTION #2: Bongo Donuts is a new and “highly” successful donut company owned by Jared Lushner and his beautiful wife, Danka Shame Lushner, a former dancer and dominatrix. Based in Evergreen, Colorado, Bongo Donuts specializes in donuts made with varying amounts of cannabis – that is, marijuana, which is legal for recreational use in that state. To date, the company has opened 45 branches in Colorado and sales are smoking hot.

Recent market research showed that nearly half of Bongo Donuts’ customers are out-of-state visitors to Colorado. They enjoy the Donuts and pot-infused coffee while there and buy dozens of the frozen donuts and gallons of the coffee concentrate that can be enjoyed at a later time. Jared, who made his fortune selling Trump flags and memorabilia produced cheaply by child labor on an undisclosed island off the coast of Venezuela, recognizes this as an opportunity to make even more money. He hires Mark Pomposity’s advertising firm, Ogleher & Himmler, to launch a national sales campaign starting with Palm Beach County, Florida – the site of Lushner’s winter home.

The first ads appeared on websites, alt-right social media, and television and in newspapers in Florida and Colorado. The campaign was a virtual blitzkrieg, a specialty of Ogleher and Himmler. The advertisements typically read as follows:

“Enjoy a Rocky Mountain High and come to the Great State of Colorado – Made Bigly Again by Bongo Donuts. Our pot-infused donuts and coffee will warm your cockles, cure whatever ails you, including depression, obesity, and delusions of grandeur, and lead to a longer life and better sex. These are the best donuts in the world and so much better than any boring, stale donut from Duncan Donuts, which have more salt, fat, and food coloring than Bongo Donuts. You can even buy coffee concentrate and frozen donuts to enjoy, responsibly of course, later.”

At the bottom of each advertisement in fine print is a disclaimer saying these products are sold for consumption in Colorado and should not be packed in coolers with dry ice to be driven to other states. The television and online ads also include a testimonial endorsement by social influencer and fashion star Malanka Bump, saying she ate at least a half-dozen Bongo donuts with the decaf coffee before every time she had sex with her disgusting husband and the donuts saved her sanity. Malanka closes the ad by singing “Everyone must get boned, I mean stoned” as she eats a cream-filled Bongo Donut.

The State of Florida, Food and Drug Administration (FDA) and Federal Trade Commission (FTC) are not pleased with this advertising campaign. The Florida Attorney general has sued in state court to enjoin the advertising campaign because Florida has not legalized the recreational use of marijuana or any related products. The FTC has sent the company a notice that under FTC regulations the advertisements are materially false, deceptive, and likely to confuse customers and lead to serious weight-gain. The agency also demanded proof that Malanka Bump ate those donuts and really had sex with him. Under a federal law against the advertising of any health benefits from the consumption of controlled substances, including cannabis, the FDA has put the company on notice that its health claims are illegal and the ads must stop at once. At the same time, a grassroots group funded by Billy “the Roach” Clipton, a former Arkansas governor and preacher, has also started a campaign that is very critical of Bongo, claiming its donuts will lead to the end of morality in America and blindness, too.

Not to be silenced by some leftist regulators, Bongo and Lushner retain a major public relations expert, Michael Flintstoned, to change public opinion and respond to their critics. He is available because he was just pardoned for lying to the FBI about his addiction to LSD while chairing the National Security Council during the last presidential administration. Flintstoned has a four-pronged plan of attack:

Sue Colorado for refusing to issue a vanity license plate with marijuana leaves and this motto: “The Grass is Greener in Colorado” as requested by Bongo;
Publish columns online and in newspapers and buy advertisements showing the economic and health benefits of cannabis and encouraging Floridians to legalize the recreational use of marijuana in Florida in an upcoming referendum on the issue;
Air on television and YouTube the testimonials of everyday people about the donuts and coffee sold by Bongo, including a testimonial featuring four public high school teachers – two from Evergreen, Colorado, and two from Miami, Florida, talking about how much they love Bongo donuts and coffee, smoke pot only at home and only after bad days at school, and hope Florida will follow Colorado’s lead and legalize recreational uses of cannabis.
Have Bongo Donuts and Lushner spend one million dollars on political ads supporting the election of Steve Munchieman as Governor of Florida because he will support the legalization of recreational cannabis in Florida.
The public high schools fired all four of the teachers appearing in the advertisements. The State of Florida meanwhile has launched its own advertising campaign with a cute jingle and this tagline: “Weed. It’s not what’s for dinner unless you are a sinner.”

Bongo Donuts sued Florida over the state’s advertising campaign claiming it violates their free speech rights by not including opposing points of view. Clipton sued Bongo and Flintstoned for false advertising and deception of the public and they countersued Clipton and his group for false advertising. Bongo intends to sue the state and federal agencies to invalidate the regulations under the First Amendment. The teachers are suing to get their jobs back under the First Amendment. The Attorney General of Florida sued to stop that newspaper columns, ads, and donations supporting the legalization of cannabis in Florida. Even Duncan Donuts intends to sue Bongo for comparing its donuts to Bongo’s.

Identify and analyze the legal issues in this hypothetical problem. Remember, I recommend organizing your analysis around the we covered following the second test. You may write up to 750 words.

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