For the past several decades, the U.S. Supreme Court and at least some federal appeals courts have been moving in opposite directions with respect to First Amendment protection for commercial speech. The Supreme Court’s trend since the mid-1970s has been to afford ever-increasing protection to truthful speech uttered by commercial speakers. In sharp contrast, some federal appeals courts have become increasingly deferential toward government efforts to control such speech. The Supreme Court’s June 2018 decision in NIFLA v. Becerra resoundingly affirmed the Court’s strict limits on the government’s authority over commercial speech, particularly in the context of compelled speech.
The first major test of whether appeals courts will heed that directive came before an en banc panel of the Ninth Circuit on September 25. The questions posed by the 11 judges on the panel suggest that the Ninth Circuit remains reluctant to embrace NIFLA’s message. Continue reading “Soda Warning Case Tests How High Court’s NIFLA Decision Affects Commercial Speech Mandates”