During 1982 and 1983 writer Janet Malcolm frequently interviewed Jeffrey Masson for an article she was writing about the Sigmund Freud Archives. Mr. Masson had worked as the Projects Director of the Archives until his disenchantment with psychoanalysis led to his termination. Six passages in the article contained quotations from Mr. Masson that Mr. Masson claimed he never made. Ms. Malcolm's 40 hours of taped interviews demonstrated that the quotations either were never made or had been altered in varying degrees. Mr. Masson sued for libel, but the trial court dismissed the suit on the grounds that the altered quotations either were substantially true or rational interpretations of statements that Mr. Masson had made. The Ninth Circuit Court of Appeals affirmed on similar grounds, holding that Mr. Masson could not prove that Ms. Malcolm had published the altered quotations knowing that their meaning was false. Under the First Amendment, a public figure cannot prevail in a libel action unless he or she proves that the author knew that the alleged defamatory statement was false or acted with reckless disregard as to the statement's truth. The public figure also must prove that the statement injures his reputation and is not at least substantially true. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

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Congress in 1992 passed the Cable Television Consumer Protection and Competition Act, which required, among other things, that cable television systems carry local broadcast stations. Several cable operators filed suit, claiming that the legislation violated the freedoms of speech and of the press guaranteed by the First Amendment. In 1993, the district court held that the "must-carry" provisions of the Act were constitutional. On direct appeal, the Supreme Court, in Turner Broadcasting System v. Federal Communications Comm., 114 S. Ct. 2445 (1994), held that the "must-carry" provisions constituted a content-neutral regulation and could be constitutional. The Court then ordered the district court to determine whether the government could demonstrate that the provisions reasonably advanced an important governmental interest. On remand, a divided district court held that Congress had before it "substantial evidence" from which to conclude that the must-carry provisions were necessary to protect the local broadcast industry. When examining content-neutral regulations, courts apply an "intermediate" level of scrutiny. Under this analysis, legislation that affects speech but that does not favor the message of one speaker over another can be constitutional if the legislation (1) furthers an important governmental interest and (2) does not burden more speech than necessary to advance that interest. United States v. O'Brien, 391 U.S. 367 (1968).

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Congress in 1992 passed the Cable Television Consumer Protection and Competition Act, which required, among other things, that cable television systems carry local broadcast stations. Several cable operators filed suit, claiming that the legislation violated the freedoms of speech and of the press guaranteed by the First Amendment. The district court held that the "must-carry" provisions of the Act were constitutional. The extent to which the government can regulate speech often depends upon whether the regulation is content-based or content-neutral. Content based restrictions must be narrowly tailored to serve a compelling governmental interest, while content-neutral regulations need only reasonably advance a substantial state interest. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).

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Since the decision in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976), in which the Court held for the first time that the First Amendment precludes certain forms of regulation of purely commercial speech, we have on a number of occasions addressed the constitutionality of restraints on advertising and solicitation by attorneys. See In re R. M. J., 455 U. S. 191 (1982); In re Primus, 436 U. S. 412 (1978); Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978); Bates v. State Bar of Arizona, 433 U. S. 350 (1977). This case presents additional unresolved questions regarding the regulation of commercial speech by attorneys: whether a State may discipline an attorney for soliciting business by running newspaper advertisements containing nondeceptive illustrations and legal advice, and whether a State may seek to prevent potential deception of the public by requiring attorneys to disclose in their advertising certain information regarding fee arrangements.

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