Expressions Hair Design Speech Case Back on Track after Detour to NY State Court

creditcardFor more than 40 years, merchants have sought the right to impose surcharges on customers who use credit cards when making purchases. They prefer customers to pay with cash because when a customer pays with a credit card, the merchant must pay a transaction fee to the credit-card issuer. To encourage cash transactions, many merchants would like to express their pricing in a way that conveys to customers that credit purchases lead to higher prices, but a number of States closely regulate how merchants may express that viewpoint.

A First Amendment challenge to such regulations reached the U.S. Supreme Court two terms ago. The Court granted merchants a preliminary victory in Expressions Hair Design v. Schneiderman, ruling that a New York pricing statute did, in fact, regulate speech and overturning a U.S. Court of Appeals for the Second Circuit decision that reached the opposite conclusion. Continue reading Expressions Hair Design Speech Case Back on Track after Detour to NY State Court”

In-N-Out Asks Supreme Court to Look at Labor Regulators’ Mistreatment of Commercial Speech

innout“It’s the only fast food chain I actually like.” That was Anthony Bourdain’s verdict on In-N-Out Burger. It is not an unusual opinion. Thanks to its clean halls, happy employees, and fresh produce, In-N-Out enjoys fanatical brand loyalty. Its new locations attract crowds and helicopters. Its drive-thru lines are measured from space. It is acclaimed far beyond its Southern California homeland.

In-N-Out is not just popular; it’s distinctive. Each location is a kind of motor oasis. The building is decked in neon lights, glossy tiles, and palm-tree listellos. The servers wear white uniforms and soda-jerk hats. The menu is little more than a hamburger, a cheeseburger, fries, and a milkshake. The look is classic. The feel is easy. The faithful are ecstatic. In-N-Out is a Norman Rockwell painting, The Endless Summer, and Saint Becket’s shrine rolled into one. Continue reading “In-N-Out Asks Supreme Court to Look at Labor Regulators’ Mistreatment of Commercial Speech”

HHS Drug Price Advertising Proposal Reveals Sweeping View of Government Power over Private Speech

Featured Expert Contributor, First Amendment

By Megan Brown, a Partner with Wiley Rein LLP, with Bert Rein and Steve Obermeier, Partners with the firm.

Ed. Note: This is Ms. Brown’s inaugural post as the WLF Legal Pulse’s latest Featured Expert Contributor.

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The Department of Health and Human Services has proposed a new rule to “require direct-to-consumer (DTC) television advertisements of prescription drugs and biological products for which payment is available through or under Medicare or Medicaid to include the Wholesale Acquisition Cost (WAC, or ‘list price’) of that drug or biological product.”  Put more simply, if a drug company runs a TV ad, it will have to include the “list price” of the drug, even though that is not what consumers or insurers would pay.  The proposed rule’s stated goal is to ensure that “beneficiaries are provided with relevant information about the costs of prescription drugs and biological products so they can make informed decisions that minimize not only their out-of-pocket costs, but also expenditures borne by Medicare and Medicaid.” Continue reading “HHS Drug Price Advertising Proposal Reveals Sweeping View of Government Power over Private Speech”

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”