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”

Novel Theory of NLRA Liability Would Trample Employers’ Free Speech Rights

NLRBThe independent-contractor model has been an important catalyst for improving the nation’s economic vitality. Because individuals often provide services for others while maintaining independent control over the means and methods of their own work, the use of independent contractors fosters an entrepreneurial spirit while giving firms that contract with such individuals an increased flexibility that promotes efficiency and innovation.

In recent years, however, federal regulators have increasingly pressured businesses to move away from the use of independent contractors, who are not legally entitled to unionize under federal law. Among federal agencies, the National Labor Relations Board (NLRB) has led this charge. Beginning with the last administration, the NLRB has intensely scrutinized and second-guessed companies’ worker-classification determinations, often deeming independent contractors to be “employees” under the National Labor Relations Act (NLRA). At great expense in time and resources, some companies have successfully appealed from the NLRB’s employment-classification rulings in federal court. Continue reading “Novel Theory of NLRA Liability Would Trample Employers’ Free Speech Rights”

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.”

Another California Intrusion on Businesses’ Free Speech Fails in Court

FirstAmendmentFor a state with cities like Berkeley, which birthed the Free Speech Movement 54 years ago, California’s record on respecting the First Amendment is surprisingly spotty. That is especially true for the expressive activities of businesses. The state, as well as its municipalities, often curtail businesses’ speech, or compel them to speak, as a way to demonstrate government is “doing something” to solve complex social or public-health problems.

Occasionally, but not nearly often enough, courts reintroduce California’s censors to the First Amendment, as the U.S. Court of Appeals for the Ninth Circuit did last year in striking down San Francisco’s warning-label mandate for “sugary” drinks. On February 20, a Northern District of California judge handed the state its latest speech-regulation defeat, striking down a law designed to limit information that entertainment database company IMDb.com could publish (IMDb.com Inc. v. Becerra). Continue reading “Another California Intrusion on Businesses’ Free Speech Fails in Court”