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.