Some legal commentators heralded the U.S. Supreme Court’s 2011 decision in Sorrell v. IMS Health, Inc. as a marked expansion of First Amendment protections for commercial speech. Sorrell held that content- or speaker-based restrictions on non-misleading commercial speech regarding lawful goods or services should be subjected to “heightened” judicial scrutiny. But whether Sorrell would have any practical effect on challenges to commercial-speech restrictions was far from clear, particularly because the Court did not explain what it meant by “heightened” scrutiny and because it struck down the speech restrictions at issue under the more relaxed “intermediate scrutiny” standard that it had been applying in commercial-speech cases for more than 30 years. Continue reading
A September 11, 2015 WLF Legal Pulse post, San Francisco’s Sweetened-Beverage Warning Mandate and Ad Ban Tread on First Amendment, discussed the serious constitutional infirmities of two advertising-restriction ordinances adopted in the City by the Bay. One ordinance imposed an immediate sweeping ban on ads for soda and other “sugary drinks” on city property; the other requires that warnings be included on billboards and other media that promoted those products by July 2016.
The American Beverage Association (ABA) filed a First Amendment challenge to both ordinances, as well as a preliminary injunction requesting that the court put the city-property ad ban on hold. On August 25, the city asked the court to enter a stipulation and order stating that San Francisco agreed not to enforce the speech ban while ABA’s suit was pending.
On December 1, the Board of Supervisors repealed the advertising ban. The Board did not repeal the warning requirement, and ABA’s constitutional challenge of that ordinance remains pending in federal court. Supervisor Malia Cohen, who sponsored the now-repealed ad ban, sought to mitigate this acquiescence to constitutional reality at the meeting by remarking, “I want to assure you that the war rages on.”
Michael Volkov, CEO and owner, Volkov Law Group LLC*
Editor’s Note: This is the third in a series of six guest commentary posts that will address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. To read the other posts in this series, click here.
Over the last thirty years, the U. S. Department of Justice has dramatically expanded criminal prosecutions of corporations and individuals, relying on a steady litany of so-called criminal-prosecution policies. Underlying each of these policies are two significant purposes: (1) to replace prior civil and regulatory enforcement with “new” criminal prosecution tools and (2) to provide criminal prosecutors with ever-increasing leverage over companies and individuals to extract criminal fines and pleas. Continue reading
No one seriously disputes that the government is entitled to adopt broadly applicable laws that require a product seller to disclose truthful information about its product so that consumers can know what they are buying. But governments with increasing frequency have been requiring sellers to convey information that cannot plausibly be deemed the sort of truthful, noncontroversial information that consumers expect to see on product labeling.
Unfortunately, recent decisions suggest that at least some courts are unwilling to protect the First Amendment right of product sellers not to be forced to communicate controversial government messages that they do not wish to convey. Such rulings undermine constitutional protections against compelled government speech that the Supreme Court has consistently recognized for the past 75 years. Continue reading
In a victory for pseudo-science and a loss for the First Amendment, federal judge Edward Chen recently upheld a regulation by the City of Berkeley compelling retailers to warn customers about the supposed risks of wireless radiation. CTIA-The Wireless Ass’n v. The City of Berkeley.
The ordinance requires that cell phone retailers inform customers of the following:
To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines.
The statement misleadingly suggests that the federal government has singled out cell phones for safety concerns. This is not the case. The FCC’s guidelines on RF exposure (including these in 2013 and these in 2003) apply to a wide range of devices, not just cell phones. Nor has it been shown that in the absence of FCC regulations, cell phones would be unsafe. The FCC, which takes safety very seriously, has never concluded anything of the sort. Continue reading
In past posts, we’ve characterized California as the “too much information” state. Under the everything-gives-you-cancer Proposition 65 law, even parking lots and coffee houses must post warning signs. San Francisco tried, and failed, to impose health warning signs at cellphone dealers. Undaunted, Berkeley passed its own cellphone warning ordinance this year, which faces a First Amendment challenge. And in the compelled speech spirit of those laws, Oakland has adopted an ordinance requiring builders to devote a certain square footage of new buildings to “public” art.
So it’s not surprising that San Francisco recently became the first city in America to require warnings on billboards and other media that promote “sweetened” beverages. Not content to simply compel speech, the Board of Supervisors also passed a sweeping ban on beverage advertising in certain city locales. The ordinances are so blatantly disrespectful of advertisers’ and consumers’ First Amendment rights, it’s not a question of whether a court will strike them down, but on which grounds it will do so. Continue reading
Washington Legal Foundation Chief Counsel for Legal Studies Glenn Lammi published a guest commentary on May 4 on the blog of the San Francisco law firm Hinman & Carmichael, Booze Rules. The post, Appellate Court Ruling Strikes Blow Against State’s Arbitrary Beer Label Ban, discusses the implications of a U.S. Court of Appeals for the Sixth Circuit ruling, Flying Dog Brewing v. Michigan Liquor Control Commission. The court allowed a lawsuit against the Control Commission’s members individually to go forward. Flying Dog is alleging that the commissioners violated its First Amendment rights by arbitrarily rejecting approval to the label of one of the brewery’s products.