Ninth Circuit’s soda decision (mostly) a win for free speech

The Ninth Circuit issued a favorable decision last week in American Beverage Association v. City and County of San Francisco. The case involves a San Francisco ordinance that requires soda advertisers to devote 20% of each advertisement for the City’s message: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.”

I filed a friend-of-the-court brief in this case, arguing that the ordinance compels speech, and thus violates the First Amendment. The Ninth Circuit agreed, and prevented the ordinance from going into effect until the case can be resolved on the merits.

The Ninth Circuit’s decision was mostly good. The court observed, for example, that compelled speech can distort the speaker’s intended message: “As the sample advertisements show, the black box warning overwhelms other visual elements in the advertisement.” Just look at the picture above. One may associate happiness with many things, but few would associate it with “obesity, diabetes, and tooth decay.” The Ninth Circuit’s decision hits the mark when it notes that San Francisco’s compelled-speech ordinance distorts the speaker’s intended message.

The Ninth Circuit’s decision could have been even better. Many courts, like the district court in this case, use the Zauderer standard to afford minimal scrutiny to laws that compel speech. The Ninth Circuit joined sister courts in applying the Zauderer framework beyond the context of preventing deception. That’s a dangerous holding. The Zauderer standard is much less protective of First Amendment rights than traditional First Amendment standards like strict scrutiny or even intermediate scrutiny. If Zauderer becomes the rule, not the exception, in First Amendment cases, then governments, prevented by the First Amendment from restricting speech, will seek to achieve pretty much the same result by compelling speech instead. That should not be the law. The Ninth Circuit’s decision was pretty good for the First Amendment. We should wish it were a little better.

Nutrition, labeling laws, and the changed circumstances doctrine

This November, health expert Aaron Carroll will release his latest book: The Bad Food Bible: How and Why to Eat Sinfully. The book debunks common myths about nutrition.

For example, many people once viewed salt as a hypertension-causing monster. Yet, after examining the scientific evidence, Carroll concludes that people with normal blood pressure should be more worried about getting too little sodium than getting too much.

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How do law schools teach the First Amendment?

Thousands of law students around the country are buying their books and heading back to school. Many of them took Constitutional Law during their first year. Only a handful learned much about the First Amendment.

In law school, a course on the First Amendment is usually offered as an upper-class elective. But that presents another problem. Even top-notch law professors have trouble cramming all there is to know about the First Amendment in one semester.

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Forcing people to fill the war chests of political opponents in the name of “democracy”

Guest post by Ethan Blevins. Ethan graduated with a BA in political science from BYU-Idaho and a JD and LLM from Duke School of Law. He was a judicial clerk for Justice Don Willett of the Texas Supreme Court and is currently an attorney with the Pacific Legal Foundation. The views expressed in this post are his own.

Few subjects incite ire like campaign finance and the First Amendment. At a Trader Joe’s in Seattle not long ago, I was accosted by an activist seeking signatures for a petition to overturn Citizens United—perhaps the most notorious and misunderstood campaign-finance case of all time. Shoppers gladly signed his petition until he reached me.

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What does the March for Science say about GMOs?

The March for Science bills itself as a celebration of science. It warns of “an alarming trend toward discrediting scientific consensus.” “Policies that ignore scientific evidence,” the group says, “endanger both human life and the future of our world.”

The same can be said of the federal government’s plans to mandate GMO labeling.

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Free speech, menu labeling, and the $100 cup of coffee

How much would you pay for a cup of coffee? Two dollars? Twenty dollars? How about a hundred?

You’re less likely to buy a cup of coffee if the price jumps from two dollars to twenty. Your chances of purchasing the beverage are even lower if the price skyrockets to a hundred dollars. This is basic economics: as the price rises, demand drops.

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