宪法第一修正案保护下的美国信用评级机构 ——以司法判例为视角

传统上,美国信用评级机构主张评级报告属于涉及公共利益的意见,援引宪法第一修正案进行抗辩,实际恶意标准是最重要的保护手段。《2010年华尔街改革和消费者保护法》等法律法规的出台反映美国加强评级业监管的理念。虽然美国各级法院做法存在差异,但是现在普遍认为判断信用评级机构能否免责应基于自身在构建商事交易中的作用。作为商业言论的评级报告不一定能适用实际恶意标准,但是可以获得宪法第一修正案对于言论自由的其他保护。美国经验对中国信用评级机构法律责任的构建和司法审判具有借鉴意义。     

Gossage Revisited: Reflections of Advertising's Legendary Iconoclast

This article is an examination of the Supreme Court decisions that pertain to the status of advertising under the First Amendment's freedom of speech provision. The author asks to what extent national advertising—commercial communication from producers to consumers promoting the producers' brands—is constitutionally protected, and concludes that instead of giving the national advertiser greater freedom, the Court may have reduced his freedom by expecting more legitimate commercial information. In Virginia Pharmacy the Court made it clear that protection did not preclude regulation to insure that “the stream of commercial information flow(s) cleanly as well as freely.”     

Tobacco advertising and children: The limits of first amendment protection

A recent wave of public interest surrounding the alleged advertising of cigarettes to children has raised First Amendment issues under the commercial speech doctrine. The two most vocal sides of this debate are sharply divided over the amount of constitutional protection that should be offered to tobacco advertisers. Proponents of restrictions on such ads argue that commercial speech does not advance any ideas worth preserving and is consequently deserving of less protection than other forms of speech. Their opponents assert that commercial speech should be offered wide protection because of its role in contributing to individual autonomy in the marketplace of ideas through informing consumer choice. While I believe that commercial speech should be offered broad protection, I will argue that severe restrictions are morally justifiable and legally defensible when it comes to advertising to children, particularly with respect to harmful products. Since the free market of ideas model is premised upon a notion that there are reasonable consumers that can discern falsehood from truth, this model is invalidated when it comes to children since they cannot be expected to possess the same capacity for judgment as adults. Kenman L. Wong is a Ph.D. candidate in Social Ethics at the University of Southern California. He teaches Business Ethics at Biola University and is currently co-editing (with Scott B. Rae) Business Ethics: A Judeo-Christian Approach to be published by Zondervan Publishing House (A division of HarperCollins Publishers) in 1996.     

THE LEGAL CHALLENGE OF INTEGRATED MARKETING COMMUNICATION (IMC): Integrating Commercial and Political Speech

The application of First Amendment commercial speech doctrine to integrated marketing communication (IMC) demonstrates that the integration of public relations messages with advertising and marketing messages may dilute the constitutional protection afforded corporate speech. This analysis of U.S. Supreme Court precedents shows that by intermingling political expression with commercial expression, a corporation may expand the range of communication that may be defined and regulated as commercial speech. The additional review of a California Supreme Court case that redefined commercial speech to include public relations messages illustrates the potential for heightened regulation of integrated marketing communication.     

The Compatibility of Advertising Regulation and the First Amendment

This article argues that advertising regulation and the First Amendment are not nearly so incompatible as has been popularly suggested. The reason lies in their common historical roots. Advertising regulation has its origins in the law of caveat emptor, a law of freedom of speech established from the same philosophical background as was the First Amendment. This relationship is described, and implications for present and future regulation are discussed.     

Can cigarette advertising be prohibited? Advertising and the First Amendment to the United States Constitution

Smoking has been considered a health problem virtually since its introduction to Europe in the 1500's. At various times, laws were enacted to attempt to control smoking, while cultivation of tobacco became economically more and more important. The development of widespread recognition of the health consequences of smoking has led to numerous suggestions that cigarette advertising be banned. However, the First Amendment to the U.S. Constitution protects freedom of the press. Analysis of the legal issues involved in such a ban requires consideration of the entire trend of Supreme Court decisions in the area of commercial speech. While it is not possible at this time to predict exactly how the Court would rule in this area, a comprehensive regulatory effort to reduce tobacco consumption could probably include a ban on tobacco advertising.     

Corporate Rights to Free Speech?

Although the courts have ruled that companies are legal persons, they have not yet made clear the extent to which political free speech for corporations is limited by the strictures legitimately placed upon corporate commercial speech. I explore the question of whether or not companies can properly be said to have the right to civil free speech or whether corporate speech is always de facto commercial speech not subject to the same sorts of legal protections as is the right to civil free speech. In the absence of clearly defined legal precedent, I emphasize moral reasons for determining the appropriate limits of corporate civil free speech. Appealing to arguments typically used to justify individual rights to civil free speech, I examine the extent to which this sort of justification may or may not be legitimately extended to corporations. I conclude that corporate rights to civil free speech must be restricted because granting rights of free speech to institutions may, in practice, undermine the moral rationale and practical feasibility of guaranteeing rights of civil free speech to individuals. Furthermore, I argue that granting corporations full rights to civil free speech will undercut attempts to develop good moral character in corporate institutions by undermining the efforts of watchdog organizations.     

The transactional ethic: The ethical foundations of free enterprise reconsidered

A review of the evolution of the ethical foundations of free enterprise reveals the essentially utilitarian ethical foundation prevailing today. To enrich those foundations the article attempts to establish the ethical validity of free transactions by relating them to the basic principle of interpersonal ethics: the Golden Rule. The validity of the transactional ethic is presented as an articulation of freedom in a valid social and economic context. Jeffrey A. Barach is Professor of Management, A. B. Freeman School of Business, Tulane University. His DBA ('67), MBA ('61), and AB ('56) are from Harvard. His interests include business ethics, business policy and marketing. He has published articles and cases in these areas and on pedagogy. His text Individual, Business, and Society was published in 1977. Recent articles concern social marketing (Business Horizons), management of family firms (Sloan Management Review), and the ethics of hardball (California Management Review).John B. Elstrott, Jr., is the Sponsored Research Coordinator at the Freeman School of Business, Tulane University. He received his Ph.D. in Economics from the University of Colorado (1975). His interests include business ethics, entrepreneurship, economic development, and environmental economics. He is working on several interdisciplinary research projects including one on economic evaluation of solid waste management alternatives. Dr. Elstrott is an active entrepreneur and serves on the board of several profit and not for profit corporations.     

Unfair Contract Terms Under Greek Law: Case Law Developments

This note examines a decision by the Greek Supreme Court which offers an interpretation of the unfair term provision in consumer protection law. The case concerned a class action by a consumer organization against a commercial bank. The decision makes a breakthrough in two related respects. First, the Court not only interprets the national law in the light of the EU Directive on Unfair Contract Terms, but also adopts rules of interpretation and reasoning that run parallel to the latest European discussion on unfair contract terms. Second, in an unprecedented manner for Greek case law, it declares a large number of contractual clauses to be unfair, hence broadening consumer protection significantly. Most commercial banks in Greece are now under an obligation to modify their pre-formulated contracts in order to comply with the Court's interpretation of the provision on unfair terms in the Consumer Protection Act.     

Ethical dilemmas in marketing: A rationale

Because of their visibility, marketers are often perceived by society as engaging in unethical or questionable behaviors. The marketing literature does not specifically provide an explanation for this dilemma. This paper suggests that there are three major reasons for this problem: fluctuating limits of consensus, ethnocentrism, and utilitarian economic analyses. Dr Paul Hensel is an Assistant Professor of Marketing at the University of Kentucky. He received his Ph.D. in Marketing from the University of Houston in 1982. He has published in Journal of Marketing Education, Journal of the Academy of Marketing Science, Equal Opportunity International and Marketing Educator's Proceedings.Topics include marketing ethics, advertising effectiveness, and social responsibility in marketing.Alan J. Dubinsky (Ph.D., University of Minnesota) is a Visiting Associate Professor of Marketing in the School of Management at the University of Minnesota. He has served on the faculties of Southern Methodist University and the University of Kentucky. Prior to pusuing his graduate work, he was a territory manager for Burroughs Corporation. He has published widely in the areas of sales and sales management.     

A defense of utilitarian policy processes in corporate and public management

The growing awareness that corporate and public policy forming processes are intensively utilitarian has provoked a variety of criticism. The procedural difficulties of utilitarianism are well known; less well known but potentially more devastating is a set of charges that utilitarian policy processes intrude upon important relationships and societal processes. This paper defends utilitarian methods against these charges.More specifically, two criticisms are singled out for examination. The first is the claim that utilitarian policy processes systematically discriminate against the rights of non-human life and suppress any feelings of sympathy or obligation humans might have for animals or plants. The second is the argument that utilitarianism ultimately circumvents considerations of process which are essential for the development of individual and societal identity.Given these criticisms, the goal of this paper is to defend the role of utilitarian techniques in corporate and public policy processes against such charges. F. Neil Brady is Assistant Professor of Management at the College of Business Administration, San Diego State University. He is the author of Feeling and Understanding: A Moral Psychology for Public Servants, Public Administration Quarterly 7, and Ethical Theory for the Public Administrator: The Management of Competing Interests, American Review of Public Administration 15, pp. 119–126.     

Sweatshops and Free Action: The Stakes of the Actualism/Possibilism Debate for Business Ethics

Whether an action is morally right depends upon the alternative acts available to the agent. Actualists hold that what an agent would actually do determines her moral obligations. Possibilists hold that what an agent could possibly do determines her moral obligations. Both views face compelling criticisms. Despite the fact that actualist and possibilist assumptions are at the heart of seminal arguments in business ethics, there has been no explicit discussion of actualism and possibilism in the business ethics literature. This paper has two primary goals. First, it aims to rectify this omission by bringing to light the importance of the actualism/possibilism debate for business ethics through questions about the ethics of sweatshops. Second, it aims to make some progress in the sweatshop debate by examining and defending an alternative view, hybridism, and describing the moral and practical implications of hybridism for the sweatshop debate.

     

Polestar refined: Business ethics and political economy

Although Friedman's The Social Responsibility of Business is to Increase Profits is widely read, the central argument is rarely identified. Stone's discussion of Friedman in Where the Law Ends, is often used as a companion piece. Stone claims that the most important argument in Friedman is the Polestar argument but never succeeds in explaining what it is. This paper shows that Friedman's position must be read in the context of his theory of political economy, and that at least four distinct utilitarian arguments are required to account for his views. Specifically, Friedman relies upon what I describe as Realistic Rule Utilitarianism in which utility is understood in terms of actual preferences. The weaknesses of this theory are then explained. John R. Danley is Associate Professor in the Department of Philosophical Studies at Southern Illinois University at Edwardsville. Danley has published pieces on Rawls and Nozick in Mind and Philosophical Studies and in applied ethics in The Journal of Business Ethics and The Journal of Business and Professional Ethics.     

An Alternative to the Impasse

Abstract

The volume of violence portrayed in American mass media has caused concern for decades, but media self-interests, weak governmental policies, and the First Amendment protection for freedom of expression have stymied efforts to improve media content. Grassroots endeavors to alert parents to possible negative effects may be a more effective approach. “Pulling the Plug on Media Violence,” a campaign aimed at escalating consumer awareness, has been implemented by a volunteer group in North Carolina. This study, using the results of a statewide poll, evaluates the campaign's effectiveness and provides useful findings for future efforts devoted to similar issues. The survey shows that although awareness of the campaign was high, the level of concern about media effects was not influenced directly. Religiosity, gender and parenthood were found to be the most important factors linked to higher levels of concern about media violence. Future efforts to mobilize an anti-violence effort may want to target messages to parents (especially mothers) and work with churches in order to increase active involvement.     

Rights and risks

A satisfactory normative theory of acceptable risk would be useful in resolving current disputes over government safety regulation of the workplace, consumer products, and technology. Alan Gewirth has attempted to develop such a theory, arguing from the individual's right not to be harmed by the risk-imposing activities of others. His theory is analyzed in detail, and the difficulties faced by such rights-based (deontological) approaches are pointed out. It is argued that a satisfactory theory will not be of a simple rights-based form. Reason is also given for doubting that it will be of a simple utilitarian form. Eric Von Magnus is Assistant Professor of Humanities at the University of New Haven, and Fellow at the Center for the Study of Values, University of Delaware. His most important publication is: Risk, State, and Nozick, Midwest Studies in Philosophy, Vol. 7, Social and Political Philosophy.The author gratefully acknowledges support from the Rockefeller Foundation and the Center for the Study of Values, University of Delaware.     

An empirical study of ethical predispositions

Using a two-part instrument consisting of eight vignettes and twenty character traits, the study sampled 141 employees of a mid-west financial firm regarding their predispositions to prefer utilitarian or formalist forms of ethical reasoning. In contrast with earlier studies, we found that these respondents did not prefer utilitarian reasoning. Several other hypotheses were tested involving the relationship between (1) people's preferences for certain types of solutions to issues and (2) the forms of reasoning they use to arrive at those solutions; the nature of the relationship between utilitarian and formalist categories; and the possibility of measuring ethical predispositions using different methods. F. Neil Brady is Professor of Public Management and Associate Director for the Center for the Study of Values in Organizations in the Marriott School of Management at Brigham Young University. He is the author of Ethical Managing: Rules and Resultsand has published numerous articles on business ethics, ethical theory, and moral reasoning.Gloria E. Wheeler is Associate Professor of Public Management and Associate Director of the Institute of Public Management at Brigham Young University. Her primary areas are research methodology and human resource management. She has extensive survey research experience in many substantive fields and has published articles in journals covering such diverse areas as taxation, teaching, marketing, and human behavior in organizations.     

宪政维度下诽谤罪之检视

作为对言论自由限制的诽谤罪,存在着滥诉的状况。要解决这一问题,就必须在宪政维度下对其进行考察。首先可以肯定诽谤罪并不违宪。但在立法、司法之时必须考量言论自由的重大价值。若有确实的依据,即使是不真实的言论也应该予以保护。就公民因涉嫌诽谤而被捕或被判刑的案件来讲,只有在诽谤导致官员有承担法律责任之虞的情况下,官员的名誉权始受保护。＂严重危害社会秩序和国家利益＂并非诽谤罪所保护的法益,其规定有悖罪刑法定原则。＂严重危害社会秩序＂应限定为＂引起了被害人自杀身亡或者精神失常等后果,被害人丧失自诉能力＂;＂严重危害国家利益＂应限定为＂党和国家领导人因为被诽谤而出现严重病情或死亡,以致无法履行职能,并因此致使国家利益受损＂。     

In defense of sharks moral issues in hostile liquidating takeovers

In this essay we defend the view that from a purely rule-utilitarian perspective there is no sound argument favoring the immorality of hostile liquidating buyouts. All arguments favoring such a view are seriously flawed. Moreover, there are some good argument favoring the view that such buyouts may be morally obligatory from the rule-utilitarian perspective. We also defend the view that most of the shark repellents in the market are immoral. If we are right in our arguments there is no justification, moral or otherwise, for any form of legislation that would constrain the practice of hostile liquidating buyouts. Robert Almeder earned his Ph.D. in Philosophy at the University of Pennsylvania, is co-editor of Business Ethics (Prometheus Press, 1987), is on the Editorial Board of Journal of Business Ethics, and teaches at Georgia State University.David Carey earned his Ph.D. in Philosophy at the University of Pittsburg. He has written extensively on Business Ethics and is currently teaching philosophy at Whitman College in Walla Walla, Washington.     

Tobacco Targeting: The Ethical Complexity of Marketing to Minorities

In recent years, there has been heightened concern regarding the marketing of potentially harmful products (PHPs) to disadvantaged markets. Three issues which commonly dominate discussions in this controversy are: (1) the potential for exploitation of vulnerable markets, (2) the tradeoff between protection of disadvantaged consumers and their rights to make informed choices and (3) the appropriateness of using the commercial speech doctrine to settle the issue of targeting minority markets with PHPs. This paper examines the arguments raised in this debate so that interested parties will better appreciate the ethical complexity of marketing PHPs to minority segments.     

Advocacy Advertising,the First Amendment,and Competitive Advantage: A Comment on Cutler & Muehling

Abstract

A continuing difficulty in regulating corporate advocacy advertising is distinguishing between political and commercial speech. An article by Cutler and Muehling argues that the competitive impact of an advertisement should be a factor in determining whether a corporate advocacy advertisement is commercial or political speech. If a corporate ad primarily benefits the ad sponsor, the ad is likely to be considered commercial speech, Cutler and Muehling say. If the ad benefits a larger industry or society, Cutler and Muehling would call the ad political speech. This comment argues that the Cutler and Muehling proposal helps little to illuminate or modify controlling Supreme Court criteria for distinguishing political and commercial speech. The comment also argues that the vagueness of the Cutler and Muehling proposal would permit the unconstitutional regulation of corporate political speech by misclassifying it as commercial speech.