By Erin Garza, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law
Business success in America not only generates increased dividends for shareholders and opportunities for consumers, but it also, regrettably, attracts litigation. Take, for instance, the constant flow of lawsuits search-engine companies face from individuals and organizations unhappy with their placement in search results. Search-engine businesses have consistently prevailed in such suits, arguing that the First Amendment protects how they design and apply their search algorithms.
However, a May 12, 2016 federal district court decision, which rejected Google’s motion to dismiss and allowed a search-engine optimization firm’s lawsuit to proceed, departed from this positive First Amendment trend. Was the decision in E-Ventures Worldwide, LLC v. Google an aberration or has this plaintiff found a creative new way to avoid the First Amendment defense? Continue reading
*Jared McClain, WLF staff attorney, contributed to this post.
On March 31, 2016, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking (NPRM) purporting to bring “clarity, choice, and security” to the broadband industry. In the name of accomplishing those seemingly worthwhile and innocuous goals, the Commission released a 147-page document that details a complex scheme to curtail Internet Service Providers’ (ISPs) right to use the data they lawfully collect on customer behavior. WLF filed comments last week laying out a number of commonsense, statutory, and constitutional arguments against the Proposed Rule in its current form. Continue reading
California’s federal district courts, which are already overstocked with food-labeling class-action suits, are now being asked to impose new food-product disclosure mandates. Courts have thus far dismissed lawsuits seeking on-package statements regarding alleged concerns in companies’ overseas supply chains, such as forced labor. But don’t expect those losses to dampen corporate-disclosure activists’ resolve. Such suits are just one part in a larger campaign, following in the footsteps of the mandatory “GMO labeling” crusade, to require supply-chain information on product packaging.
Manufacturers of chocolate, pet food, and seafood have been targeted for their failure to disclose on their packaging the existence of forced labor and other possible human-rights violations in foreign countries from which they source their products or product ingredients. Such an omission, the class actions claim, violates California consumer-protection laws. One remedy the plaintiffs seek is disclosure of this supply-chain data on product labels and point-of-sale advertising. Continue reading
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
Berkeley once marched for free speech
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