Long the subject of much controversy, California’s Proposition 65 law prohibits businesses from exposing Californians to chemicals “known to the State of California to cause cancer” without first providing a warning. California’s Office of Environmental Health Hazard Assessment (OEHHA) publishes a list of chemicals “known to the State of California to cause cancer.” By statute, that list must include substances designated as potential carcinogens by the International Agency for Research on Cancer (IARC), an international non-governmental entity. Continue reading “New First Amendment Challenge Takes Aim at California’s Listing of Glyphosate as a Potential Carcinogen Under Prop 65”
It’s October 2016, and Milwaukee County, Wisconsin residents are massing on sidewalks, around town landmarks, and in public parks, eyes glued to their smartphones as they chase virtual Pokèmon Go characters.
Meanwhile, in the halls of county government, elected officials mull over the implications of this craze.
Some delight at the game’s ability to bring people together and inspire normally sedentary younger residents to get outside. Others, however, wring their hands over complaints of traffic disruptions and unruly teenagers and scheme over how to quell game-creature hunting, or at least how to make money off of it for the county.
One supervisor, deciding that something needs to be done, devises an ordinance. Rather than target the bad behavior of individuals playing the games, the measure imposes a permitting process and fees on augmented-reality-app developers. After several months of debate, the Board of Supervisors passes Resolution 16-637 by a 13-4 vote on February 2, 2017. Continue reading “Pokèmon, Go Get a Permit: Free-Speech Suit Ropes in Reactionary County Ordinance”
On July 28, 2017, Washington Legal Foundation published an interview in which Northwestern University Pritzker School of Law Professor Martin H. Redish answered questions on the evolution of commercial-speech protection. This “Conversations With” paper provides a fitting culmination to the series of WLF publications on commercial speech produced in the last six months.
Over the past 46 years, beginning with a 1971 law review article drafted as a Harvard Law School student, Professor Redish’s scholarship has deeply influenced the US Supreme Court’s development of the so-called commercial-speech doctrine. In the Conversations With paper, he discusses the impetus for that article, as well as the High Court’s growing respect for commercial speech.
The WLF publications were meant to provide policy makers at the state and federal levels with a basic understanding of commercial speech and the First Amendment scrutiny courts apply when reviewing restrictions on such speech. The publications, with links to each, are listed below:
- What Counts as “Commercial Speech” Today? by James M. Beck, Reed Smith LLP
- Better Think Twice before Restricting Commercial Speech, by Thomas R. Julin, Gunster Yoakley & Stuart, PA
- Precautions for Commercial-Speech Regulators, by Bert W. Rein and Megan L. Brown, Wiley Rein LLP
- First Amendment Limits Government’s Power to Compel Commercial Speech, by Jonathan F. Cohn and Paul J. Ray, Sidley Austin LLP
- Commercial-Speech Regulations Must Be No More Extensive than Necessary, by Sarah Roller and Katie Bond, Kelley Drye & Warren LLP
- Conversations With … The Intellectual Godfather of Commercial Speech Protection, featuring Professor Martin H. Redish and Jay B. Stephens, Chairman of WLF’s Legal Policy Advisory Board
The number of jurisdictions considering and enacting legislation that bars employer inquiries about and reliance on job applicants’ salary or wage history has been growing. A legal challenge to the Philadelphia’s ban promises to be instructive and is worth watching.
The Philadelphia Ordinance
On December 8, 2016, the Philadelphia City Council passed a bill prohibiting employers from inquiring about the wage history of prospective employees (the “Ordinance”). The Ordinance, intended to alleviate “gender-based pay discrimination,” was scheduled to take effect on May 23, 2017. In April, however, the Chamber of Commerce for Greater Philadelphia filed a complaint and motion for a preliminary injunction against the City of Philadelphia and the Philadelphia Commission on Human Relations, ultimately seeking to have the law struck down. The City voluntarily halted enforcement of the Ordinance while the lawsuit is pending. Continue reading “Philadelphia’s Wage-History Ordinance Faces First Amendment Challenge”
Business entities have endured increasingly strident criticism of their free speech rights in recent years. Thankfully, the US Supreme Court and most lower federal courts have declined to embrace critics’ ideologically-driven perspective that the First Amendment does not protect corporate speech. Such judicial respect for a business’s speech rights was recently on display in an unusual setting: a contract dispute between Sirius XM Radio and an advertiser. The court decision arising from that dispute, InfoStream Group v. Sirius XM Radio Inc., both demonstrates how the First Amendment can provide an effective defense and underscores the principle that not all speech by commercial enterprises is “commercial speech.” Continue reading “Tuned in to the First Amendment: Court Upholds Satellite Radio’s Right to Choose Advertisers”
By Arielle Roth, The Hudson Institute*
It came as no surprise last week when the US Court of Appeals for the DC Circuit denied the request for en banc rehearing in US Telecom v. FCC, better known as the “net neutrality” case. As a technical matter, the panel decision upheld the Federal Communication Commission’s 2015 Title II order, which reclassified broadband Internet as a “telecommunications service” and in turn subjected broadband providers to common carriage regulation. Such a grant would have been rare in any event. Further, in the view of Judge Sri Srinivasan’s opinion concurring in the denial of rehearing, the issues were unfit for judicial review in light of the announcement by current FCC Chairman Ajit Pai of a rulemaking to reverse the previous FCC’s order.
On the contrary, it is precisely because the current FCC seeks to undo the rules in question that the DC Circuit ought to have granted en banc rehearing. Continue reading “Corrosive Legal Uncertainty Remains after DC Circuit’s Rehearing Denial in “Net Neutrality” Case”
Promulgated in April 2016, the Department of Labor’s (DOL) highly controversial Fiduciary Rule drastically expands the universe of retirement investment advisors and employees who are deemed to be “fiduciaries” under federal law. Abandoning 40 years of settled statutory interpretation of the Employee Retirement Income Security Act of 1974 (ERISA) and parallel provisions of the Internal Revenue Code (IRC), DOL now maintains that a fiduciary is anyone who provides “recommendations” that are individualized or directed to a specific recipient for consideration in making investment or management decisions with respect to securities or other property of an ERISA plan or an IRA. Continue reading “Department of Labor’s Fiduciary Rule Is Vulnerable on First Amendment Grounds”