Fighting to Maintain the Massachusetts Supreme Judicial Court’s Requirements for Medical Monitoring
In this case some former employees of Raytheon and their family members sought to impose on the company the costs of their being monitored for possible future chronic beryllium disease. The plaintiffs claim that the employee plaintiffs were exposed to beryllium at a Raytheon plant and that their family members were exposed to it secondhand, on the persons of the employees.
In Donovan v. Philip Morris USA, Inc., 455 Mass. 215 (2009) (“Donovan I”), the Supreme Judicial Court held that when a defendant negligently exposes a plaintiff to a substance capable of causing a disease, the plaintiff may have a cause of action in tort even though he does not suffer from the disease. Under Donovan I, the plaintiff’s relief would be that the defendant must bear the medical costs of monitoring the plaintiff for signs of the disease’s possible future advent. But before a defendant can be held liable for these costs, the plaintiff must prove that he presently exhibits at least subclinical, or subcellular changes that serve as medical “warning signs” of a substantially increased risk of developing disease in the future. A plaintiff must be able to prove the existence of these changes, in order to satisfy the tort element of actual injury.
On June 23, 2013, U.S. District Court Judge Mark Wolf granted Raytheon summary judgment, ruling that the plaintiffs could not come forth with admissible evidence of the required subcellular changes (i.e., for each of them, two positive tests for beryllium sensitivity, a “warning sign” of possible future beryllium disease). The plaintiffs appealed to the First Circuit, arguing that the trial court misunderstood Donovan and the relevant medical science.
NELF, together with Associated Industries of Massachusetts, filed an amicus brief in support of Raytheon. In it NELF explained that the plaintiffs’ case depends on weakening and obfuscating, in a variety of ways, the standard set out in Donovan I. Their claim requires proof of a present, actual physical “impact,” which in this case would mean that they each have suffered subcellular changes connected to beryllium sensitivity, the very thing the plaintiffs cannot show. NELF then explained how, under the erroneous standard advanced by the plaintiffs, a mere risk of a risk of future disease would give rise to a Donovan claim. NELF rebutted in detail the use the plaintiffs make of Donovan I’s successor case, Donovan v. Philip Morris USA, Inc., 268 F.R.D. 1, 16 (D. Mass. 2010) (“Donovan II”), showing, for example, that the Donovan requirements are not limited to tobacco class actions and that the plaintiffs hold numerous erroneous views of the facts of Donovan II. Finally, NELF explained that amendment of their complaint, in order to seek refuge for their claims under an issue of law left undecided in Donovan I, should not be allowed because it would be futile.
In its June 10, 2014 decision, the Court upheld summary judgment, chastising the plaintiffs for trying to alter their appeal to encompass the issue left undecided in Donovan I.
Arguing that the Federal Statutory Ban on Paid Commercial Advertising on Public Television Stations Violates the First Amendment
At issue in this case, before the United States Supreme Court on a petition for certiorari, was whether the First Amendment to the United States Constitution allows Congress to ban the broadcasting of paid commercial advertisements on public television, at 47 U.S.C. § 399b(a)(1) (“section 399b(a)(1)”). Federal law defines a commercial advertisement as a paid message that promotes the sale of goods or services by a for-profit entity. The petitioner, Minority Television Project, owns a small, independent public television station whose unique programming serves the multi-cultural, educational needs of underrepresented members of the community in the San Francisco Bay Area, such as African-Americans, individuals living with HIV/AIDS, and various neighborhoods in which English is a second language. The station has been unable to obtain any federal funding through the Corporation for Public Broadcasting.
In this case, the FCC had determined that the petitioner had violated the statutory ban on commercial advertising by airing corporate acknowledgements that the FCC found to be commercial advertisements. (Federal law permits the broadcasting of “enhanced” corporate acknowledgements.) Minority TV does not now dispute that these corporate acknowledgements were commercial advertisements under Congress’s and the FCC’s criteria. (It should be noted, however, that Minority TV, in compliance with the Public Broadcasting Act, did not interrupt regular programming when it aired these advertisements.) As a result, the FCC fined Minority TV $10,000. Minority paid the fine but also filed suit in federal district court for the Northern District of California, alleging that § 399b(a)(1) violates the First Amendment because it is not narrowly tailored to further the government’s interest in preserving the educational content of programming on public broadcast stations.
In its brief supporting Minority Television’s petition for certiorari, NELF argued that the Court should grant certiorari and decide that public television stations have a First Amendment right to broadcast paid commercial advertisements, subject to reasonable, content-neutral limits, to supplement the funding of their educational speech. The educational mission of an independent public station such as the petitioner could be endangered if that station is denied the right to seek additional revenue from the limited broadcasting of commercial advertisements.
NELF argued that § 399b(a)(1)) is a content-based and speaker-based restriction on protected speech that cannot survive scrutiny under the First Amendment. The FCC argues that the ban is necessary to preserve the educational content of programming on public television. But the Government’s fears are both implausible and impermissibly paternalistic. Indeed, this Court has held that the First Amendment rejects the rationale, offered here by the FCC, that the fundraising-related speech of a nonprofit corporation must be regulated for its own benefit. Moreover, the FCC has ignored the many obvious and fundamental differences between a for-profit, commercial station and a nonprofit, public station. These key differences would prevent public stations from abandoning their educational mission if they were allowed to supplement their revenues with commercial advertisements. The FCC has confused the commercial source of the funding with the non-commercial purpose and use of that funding --i.e., to assist in the broadcasting of educational programs that serve the needs of the community.
The FCC has also disregarded the fact that viewers contribute substantially to public television and, therefore, exert a strong influence over programming decisions. The FCC has further disregarded the uniquely charitable, non-commercial role assumed by public television’s corporate supporters. Corporations have long contributed to public television, even though they have never been allowed to promote their products or services as they would on commercial television. Clearly, corporations support public television because of its unique programs, and not because of the audience ratings or marketing opportunities that those programs may offer. Allowing commercial advertisements on public television would simply encourage current corporate supporters to contribute more money, and it could also attract new corporate support to public television. Finally, available empirical evidence, including the factual record in this case, shows that the limited use of commercial advertisements on public television has not influenced programming decisions.
Section 399b(a)(1) fails First Amendment scrutiny for the additional reason that the Government has drawn an arbitrary, content-based line between permissible, “enhanced” corporate underwriting statements and impermissible commercial advertisements. The FCC has allowed enhanced corporate underwriting statements for over thirty years. These statements closely resemble commercial advertisements because they are an implied promotion of a company’s products or services. And yet there is no indication whatsoever that resulting corporate contributions have exerted any commercializing influence on the programming content of public television.
It strains credulity to conclude that the mere addition of some expressly promotional language to these enhanced corporate underwriting statements would somehow transform public television into commercial television. To the contrary, permitting promotional language to enter these corporate statements could attract much-needed additional support for underfunded public stations, such as the petitioner, and allow them to fulfill their charitable mission.
The long use of enhanced corporate underwriting statements also defeats the FCC’s argument that commercial advertisements would cause viewers to abandon their support of public television. The available evidence indicates that viewer support has not diminished, and has actually increased, during the past 30 years of these corporate statements. Viewers would therefore be likely to tolerate the limited appearance of commercial advertisements as a necessary inconvenience for the funding of the programs that they value so highly on public television.
And, even if viewers reacted negatively to commercial advertisements, the First Amendment should permit public station managers to respond intelligently to the situation, such as by withdrawing the advertisements, reducing their frequency, or toning down their promotional content. Conversely, the First Amendment should prohibit the Government from substituting its judgment about the wisdom of commercial advertisements for that of public stations and their viewers. Free and robust debate on this public issue cannot take place with such governmental interference.
Finally, to the extent that the FCC has identified a substantial interest in regulating commercial advertisements on public television, the Government could implement less restrictive, content-neutral limits, rather than banning commercial advertisements altogether. Such reasonable restrictions would allow public stations to benefit from additional funding, while maintaining the educational purpose and character of public television. Such restrictions would also remove the Government from the undesirable role of evaluating the content of public broadcasters’ speech. For example, the Government could limit the percentage of a public station’s revenue that is derived from commercial advertisements, to preserve the current diversity of funding sources for public television.
Unfortunately, the Court denied certiorari on June 30, 2014.
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