Soda Warning Case Tests How High Court’s NIFLA Decision Affects Commercial Speech Mandates

FirstAmendmentFor 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”

FDA-Mandated Listing of Drug Prices in Ads Would Flunk Legal and Constitutional Tests

first-amendmentWe’ve read with amusement the recent, overblown claims of some constitutional-law commentators and even U.S. Supreme Court justices that the First Amendment has been “weaponized” as a tool of deregulation. Of course, First Amendment challenges increasingly have become indispensable as politicians and regulators target more and more speech rather than regulate conduct directly.

Consider, for instance, the advertising-disclosure requirement floated last May as a part of the Department of Health and Human Services’ (HHS) blueprint to lower prescription drug prices. HHS asked the Food and Drug Administration (FDA) “to evaluate the inclusion of list prices in direct-to-consumer advertising.” The proposal appears to be under serious consideration. HHS Secretary Alex Azar has specifically invoked it when briefing the press and testifying before two Senate committees (here and here). And FDA Commissioner Scott Gottlieb indicated (in a May interview) that an agency working group will soon study the idea.

If that study includes a dispassionate legal and constitutional analysis, the working group should recommend that HHS scrub the list-price mandate from its policy blueprint. Not only does FDA lack the statutory authority to impose the mandate, but even if it could legally do so, the regulation cannot survive a First Amendment challenge. Continue reading “FDA-Mandated Listing of Drug Prices in Ads Would Flunk Legal and Constitutional Tests”

Missouri’s Unjustifiable Alcohol Ad Limits Can’t Survive First Amendment Challenge

FirstAmendmentBy Courtney Dean, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Restrictions on the speech of “disfavored” products merit all the more judicial scrutiny because they are easy targets for creating precedents. Earlier this summer, a federal court in the Western District of Missouri rightfully struck down three state restrictions on alcoholic beverage advertising. The court in Missouri Broadcasters Association v. Taylor reinforced the principle that states cannot arbitrarily stifle truthful, non-misleading commercial speech. Continue reading “Missouri’s Unjustifiable Alcohol Ad Limits Can’t Survive First Amendment Challenge”

The Dog That Didn’t Bark in the Night: SCOTUS’s “NIFLA v. Becerra” and the Future of Commercial Speech

supreme court

The U.S. Supreme Court last week issued its long-awaited opinion in National Institute of Family and Life Advocates v. Becerra. In a 5-4 decision authored by Justice Clarence Thomas, the Court held that a California law requiring licensed pro-life counselling clinics to direct their clients to abortion providers  likely violated the clinics’ free speech rights under the First Amendment. Like the famous dog that didn’t bark in the night,[*] however, Justice Thomas’s majority opinion in NIFLA is far more revealing for what it doesn’t say than for what it does say. Continue reading “The Dog That Didn’t Bark in the Night: SCOTUS’s “NIFLA v. Becerra” and the Future of Commercial Speech”

Court Ruling Casts Constitutional Doubt on State and City Salary-Inquiry Bans

FirstAmendmentBy Marc Dib, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering his third year at Texas Tech University School of Law in the fall.

What did you make at your last job? If you have ever had a job interview, then you’ve likely encountered that question. Employers use this common interview question to gauge an applicant’s quality and to determine a fair salary.  A growing number of state and local governments, however, have forbidden employers from asking prospective employees about their past earnings in the name of wage equality.

The basic premise of their argument is that allowing employers to determine job offers based on prior salaries that are historically lower for women and minorities will perpetuate the wage inequity problem. Based on this unsupported assertion, state and local governments have begun passing legislation that bars employer inquiries about past wages. These laws, however, are constitutionally suspect. Continue reading “Court Ruling Casts Constitutional Doubt on State and City Salary-Inquiry Bans”

Hailing the First Amendment: NYC Taxi Authority’s Ad Ban Struck Down as Unconstitutional

NYCTLCTaxicab, livery, black car, and limousine companies in the Big Apple may own the vehicles their employees drive, but they know full well who really controls them: the New York City Taxi and Limousine Commission (TLC). Passenger transportation is one of the city’s most heavily regulated businesses, but as a federal district court judge recently reminded TLC, those small business still have constitutional rights. Continue reading “Hailing the First Amendment: NYC Taxi Authority’s Ad Ban Struck Down as Unconstitutional”

Update: Court Imposes Injunction on Proposition 65 Listing of Glyphosate

On November 27, 2017, a WLF Legal Pulse post by WLF Senior Litigation Counsel Cory Andrews discussed a lawsuit filed by makers and users of pesticides that include the chemical glyphosate against the California agency that administers Proposition 65. That law requires warnings on products that contain substances “known to the state of California” to cause cancer. On February 26, Eastern District of California Judge William B. Shubb imposed a preliminary injunction preventing the state from listing glyphosate as a carcinogen under Prop 65. The court held that the plaintiffs were likely to prevail on the First Amendment arguments in their suit. National Ass’n of Wheat Growers, et al. v. Zeise.

Under Prop 65, a substance must be listed if it is identified as a potential carcinogens by the International Agency for Research on Cancer (IARC), an international non-governmental entity. In 2015, IARC made that determination for glyphosate, triggering the automatic Prop 65 listing. IARC’s classification of glyphosate is contrary to the conclusions of many environmental regulators around the world, including the US EPA. Last November, a study published in the Journal of the National Cancer Institute reinforced those regulators’ conclusions that glyphosate was unlikely to pose a cancer hazard to humans.

To pass muster under the First Amendment, a commercial-speech mandate must require language that is “purely factual and uncontroversial.” The language must thus be factually accurate, and even if literally true, cannot be misleading. Judge Shubb found that the warning required for glyphosate is not factual or uncontroversial because it “conveys the message that glyphosate’s carcinogenicity is an undisputed fact, when almost all other regulators have concluded that there is insufficient evidence that glysophate causes cancer.”