@Mackenzie:

I'm pretty confident that CTA's Answer will read:

1. Denied.

2. Deined.

3. Denied.

4. Defendant has insufficeint knowledge with which to repsond to Plaintiff's allegations.

5. Denied.

6. Denied.

7. Denied.

Etc., etc., etc.

Ain't that usually how the game gets played?

Should be interesting to see where this leads, as it blends the state censorship/sponsorship issue.

[...] wrote an interesting post today onHere’s a quick excerptAs GamePolitics  has previously reported, Take Two Interactive sued the Chicago Transit Authority in U.S. District Court over the CTA’s recent decision to pull advertisements for Grand Theft Auto IV from its vehicles and facilities. GP has obtained a copy of the lawsuit and you can grab it here (43-page pdf). From the lawsuit: Take-Two’s GTA IV advertisments promote an entirely lawful, mainstream entertainment product enjoyed by millions of Americans… Defendants [CTA and ad company Titan Outdoor] are state actors. The advertising space that CTA maintains on Chicago’s mass transit system is a public forum. CTA and its agents… for years have displayed a wide variety of political and issue-oriented… messages… The removal of the [GTA IV] advertisments… followed a report by the local Fox News affiliate questioning why CTA allowed advertising for an “M” rated video game in light of a recent wave of violent crimes in Chicago… The Governor of Illinois has previously criticized other […] [...]

Hey T2, when's the next JT lawsuit?

And throwing in a Equal Protection Clause claim for good measure was smooth, too. Nice move.

@JQuiilty:

And complaints intiating lawsuits, by definition, do nothing more that make allegations.

Mackenzie:

Absolutely fit for summary judgment. On all counts. In T2's favor.

@The Chicago Transit Authority:

Do yourself a favor and put the GTAIV ads back up. Then, see if T2 will accept a pro-rated refund for the time that the ads were down. And then hope and pray that they're satisfied with that resolution and are willing to dismiss their claims against you. 'Cause they got you by the short hairs.

@ JackDon'tKnowJack

The way I see it, most responses will be denials based on insufficient information. There will be some admissions, and a few flat-out denials. But where the defendants make the denials is where things get interesting. For example, I think the issue of whether the CTA is providing a public forum (as a legal term) might be an issue, though I'm not sure it will have a huge impact on the end result. This will be one of those flat-out denials.

I also think that a lot of the basic facts won't really be at issue, like the contract. There may be a little scuffle about the allegations that CTA and their agents never communicated with Take Two about removing the ads, but it seems like that'll be pretty easy to resolve.

Overall, I'm reserving most of my predictions until I see the answers. (GP: thanks for making the filings available, and please keep it up!) What would really be fun is if the court decides the case on the pleadings--possible given that most basic facts are probably going to be uncontested. That would at least be a relatively quick resolution--a matter of months depending on how backed up the court's docket is.

@McKenzie:

If I was CTA, as to allegations of law cloaked in obstensive factual allegations (e.g., CTA has opened their buses and facilities as a "public forum"), my answer's a flat denial. There's no begging the legal questions with me.

Open and shut breach of contract. The only way CTA could get out of this is if they can prove the advertising broke a law on the Chicago books. For some reason I find it hard to believe that will be the case.

@Mackenzie:

I was a little confused as to why D&P even raised the "public forum" issue (which, I think, only raises itself when the the issue is one of whether the restriction is a reasonable "time, place, and manner" restriction) as opposed to casting the First Amendment aspect of their case as one of pure "commercial speech," authorities in support of which abound:

"Advertising is indeed protected by the First Amendment of the U.S. Constitution. Advertising or "Commercial speech" enjoys somewhat less First Amendment protection from governmental encroachment than other types of speech. The Federal Trade Commission, for example, may regulate speech that is found to be "deceptive."

Under the landmark U.S. Supreme Court decision, Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, No. 79-565, Supreme Court of the United States, 447 U.S. 557; 100 S. Ct. 2343; 1980 U.S. LEXIS 48; 65 L. Ed. 2d 341; 6 Media L. Rep. 1497; 34 P.U.R.4th 178, June 20, 1980, a state must justify restrictions on truthful, nonmisleading commercial speech by demonstrating that its actions "directly advance" a substantial state interest and are no more extensive than necessary to serve that interest. This is the so-called Central Hudson Test.

Commercial speech now clearly has prominent place in the rights protected by the First Amendment. A 1993 Supreme Court opinion summarized the general principles underlying the protection of commercial speech:

'The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.' (Edenfield v. Fane, 123 L. Ed. 2d 543, 113 S. Ct. 1792, 1798 (1993).)

At one time, purely commercial advertisements were considered to be outside the First Amendment's protection. (See Valentine v. Chrestensen, 316 U.S. 52, 54, 86 L. Ed. 1262, 62 S. Ct. 920 (1942). That case, which was overruled, said the Constitution imposes no restraint on the government as to the regulation of "purely commercial advertising".

While the U.S. Supreme Court has often acknowledged this constitutional protection, the Supreme Court's decisions have recognized the "'common sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." (Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56, 56 L. Ed. 2d 444, 98 S. Ct. 1912 (1978) (citing Virginia Pharmacy Bd. v. Citizens Consumer Council, 425 U.S. 748, 771 n.24, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976)).

These distinctions have led the Court to conclude that "the Constitution . . . affords a lesser protection to commercial speech than to other constitutionally guaranteed expression." U.S. v. Edge Broadcasting Co., 125 L. Ed. 2d 345, 61 U.S.L.W. 4759, 4761 (1993) (citing Board of Trustees v. Fox, 492 U.S. 469, 477, 106 L. Ed. 2d 388, 109 S. Ct. 3028 (1989), Central Hudson Gas & Electric Corp. v. Public Service Com., 447 U.S. 557, 563, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980), and Ohralik, 436 U.S. at 456)).

In Central Hudson, the Supreme Court set out the important four-part test for assessing government restrictions on commercial speech:

'[First] . . . [the commercial speech] at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.'

This four-part analysis endured to this day as the constitutional benchmark in commercial speech cases.

In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, the U.S. Supreme Court held that 'the Twenty-first Amendment does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment. The Twenty-first Amendment, therefore, cannot save Rhode Island's ban on liquor price advertising.'"

Source: www(dot)lawpublish(dot)com/amend1.html

@ MaskedPixelante
Actually they could also go for breach of their first amendment rights since CTA is a state-actor. The government doesnt have the right to deny ad space where it's permitted for others based only on the content of the ads.

@Mackenzie:

And, of course, CTA's not getting past the Central Hudson test because even if there's room to find that the first, second, and third prongs of that test are met (which is entirely debatable), there's no way the complete banning of the ads can be the least restrictive means of directly furthering whetever substantial interest may be found.

@ JackDon'tKnowJack

Agreed. And I'll be shocked if this case doesn't settle relatively soon. As much as T2 wants to make a point, I doubt that they'd spend top dollar to follow this thing through to summary judgment just on principle. Of course, they've obviously doing well at the moment, so who knows? And maybe the city will want to fight--the waters muddy when politics get involved.

Fun discussion. I'm glad I decided not to lurk on this one.

Where is your god now John Bruce? WHERE?













:p

Well T2 will win on contract based issues, on equal protection and on freedom of speech. I am not sure about the others, though the judges will likely shy away from stating their decision is based on equal protection or freedom of speech since they usually don't like setting precedents which don't have overwhelming public support... and judge is an elected position...

I may be wrong but if the forum is public, then the government is allowed to impose reasonable time, place, and manner restrictions on speakers in the forum. Classic example: the town square is a public forum but the city fathers are free to open it at dawn and close it dusk (time), forbid speakers from standing in pedestrian walkways (place) and forbid the use of electronic ampflication above 80 decibels (manner). All these restrictions reasonably relate to maintaing the town square for the use and enjoyment of all the town's citizens and, hence, are "reasonable time, place, and manner restriction." I don't think the city father's are held to the more difficult to meet "strict scrutiny" standard. But don't quote me on that.

The interplay between the forum's time, place, and maner restrictions and the EPC is that, even if the TPM restrictions are constitutional, they must be applied with equal force to all similarly situated persons who use the forum. The city fathers can't forbid me from using my megaphone dialed up to "10" while the nut-case beside me does the exact same thing. To do so is in violation the EPC.

T2 can therefore make a "two bites at the apple" argument. Even if CTA can somehow justify the GTAIV ad-baning as a valid TPM restriction (most likely based on some kinda "proctecting children from harm" argument, I'm sure T2 can find some other advertiser(s) on the system whose ads are much more likely than their's to cause the very same harm CTA argues that their's would cause. Nice way of hedging your bets, I think.

I could be dead-ass wrong. All this is off the top of my head without a lick of real legal research. But I think it flies.

Although, now that I think about it, the "protecting children" argument is a loser because that's content-based and a TMP restriction can't be at all content based. Bad analogy.

I just think it's funny that Take Two is pissy over someone pulling their ads, yet they scour YouTube for any gameplay videos people make promoting GTAIV (and get their accounts disabled, no less).

So they're NOT ok with not getting their paid advertising down, but they won't accept free ad space? This company is so screwed up.

Can someone translate the lawyerspeak into english? Thanks.

The only real constitutional challenge I could see is the idea that they're not mandated to do what they've done. The Chicago Transit Authority isn't a moral authority, after all.