Judge Henderson dissented, believing the question of Zauderer’s appropriate scope to have
been resolved in R.J. Reynolds and
unfairly revisited.
Judge Brown also dissented, quite vigorously. Under the
majority’s reasoning, “a business owner no longer has a constitutionally
protected right to refrain from speaking, as long as the government wants to
use the company’s product to convey ‘purely factual and uncontroversial’
information.” This ignored the government’s unique interest in preventing
commercial deception and applied a standard that was more relaxed than rational
basis review. The majority searched “sua
sponte through the underlying statute’s legislative record, desperately seeking
justifications while ignoring the agency’s actual rulemaking record.” Zauderer
is about deception, and, worse than “nonsense on stilts,” “the court’s analysis
in this case can best be described as delirium on a pogo stick.” (I’m going to try to limit further outraged
quotes until I get to the end.)
Zauderer said
that, where deceptive advertising could be cured by more speech, the government
may choose between requiring disclosure and directly prohibiting the
advertisement. (I find this to be a weird description; the Court has sometimes suggested
that the government is required to
try disclosure if the speech is only potentially
misleading, but that doesn’t seem like the same thing.) But compelled speech can be as bad as banned
speech, “and the government faces a heavy burden to justify involuntary
affirmation (being forced to carry the government’s message).” Zauderer
contrasted the imposition of orthodoxy “in politics, nationalism, religion, or
other matters of opinion” with regulation of deceptive commercial
advertising. The latter is ok as long
as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers. The Court wasn’t just distinguishing between
disclosure and bans. “[T]he state’s option to require a curative disclosure
cannot be disconnected from its right to entirely prohibit deceptive,
fraudulent, or misleading commercial speech.”
The option to ban instead is what justifies requiring advertisers to
provide more information than they’d otherwise be inclined to present. (The greater includes the lesser?) But Zauderer
doesn’t allow a commercial speaker to be forced to speak factual and
noncontroversial information “in the first instance.” Even potentially deceptive commercial speakers
have “minimal First Amendment protections,” and when deception isn’t involved,
“constitutional protections remain robust and undiminished.”
The Constitution adopted the principle of natural law “that
an adult human being, as a free moral agent, cannot be coerced without good
reason,” but also that “no one ever had a natural right to do wrong.” That’s
the basis of commercial speech doctrine.
Disclosure wasn’t an exception to the First Amendment’s stringency, but
rather an acknowledgement that sellers had no right to “wrongly deceive”
consumers; the state can’t control opinion, but can require accuracy for
commercial facts. (Apparently there’s a
right to rightly deceive consumers though.
Unclear why NYT v. Sullivan
comes out the way it does on this reasoning, unless it's not a natural wrong to deceive someone in a political context, but maybe it doesn't come out the same way in this scheme.)
Supreme Court jurisprudence routinely refers to deception as
the justification for controls on commercial speech, and its clear trajectory
is to more protection, not less. It doesn’t matter how small AMI’s interest in remaining
silent is; the government has to show that its interest justifies the
regulation. Zauderer is, as the majority says, just a particular application of
Central Hudson. Central
Hudson requires a substantial interest, and preventing “inherent or actual”
deception is always substantial. When a
mandated disclosure is reasonably related to preventing deception, as Zauderer requires, it will always
directly advance that substantial interest.
And it will be less restrictive than an outright ban, and no more
restrictive than necessary.
(The Central Hudson
test part 1 explicitly exempts false and misleading speech from the test set
out in parts 2-4; to then run what Judge Brown says are the only acceptable
compelled disclosures, those that fight false and misleading speech, through Central Hudson analysis seems odd. The reference to “inherent or actual”
deception is a red flag—this is language from cases that say that the
government has to try disclosures first if the speech is only “potentially”
misleading, whereas it can outright ban speech that is “inherently or actually”
misleading. So in fact, Judge Brown has not applied Central Hudson to the key Zauderer
class of “potentially misleading” speech; however, she might well concede that
the prevention of “potentially” misleading speech is a substantial government
interest.
A separate issue: Judge Brown argues that the remaining Central Hudson steps are pre-answered
for false/misleading speech in terms of government interest and fit. But Judge Brown puts the question in terms of
Zauderer and not the ability to ban
false/misleading speech outright. Why
not run all bans on commercial speech, including bans on false or misleading
speech, through Central Hudson
factors two through four? Being explicit
about that would probably raise the question of how an outright ban could ever
be a proper fit, since disclosure requirements would regularly be an
alternative, but her analysis depends on outright bans being okay. Navigating this tangle would have to depend
on some very thick theories of when consumers actually understand disclosures
(spoiler: rarely); query how good courts are compared to regulators at
identifying when disclosures would be sufficient.)
Anyhow, “Central
Hudson—without any shortcuts— applies to disclosures that target interests
other than deception.” But the majority
“disembowel[ed]” that case as well by holding such “amorphous” interests to be
substantial. And it relied on “interests
the agency never asserted and even denied were rationales for the rule.” As a matter of administrative law, this was
wrong, and in any event heightened scrutiny couldn’t be satisfied by “hypothesized
justifications” “based on a few scattered comments in the legislative record.” Nor did the congressional record show that the
interest, even if substantial, was properly fitted to this restriction.
The government only asserted the vague interest in providing
consumers with information. But the government never explained why origin
information matters. (Contrast discourse
about geographic indications, where vague assertions about terroir matter a lot, and proponents happily claim that the
differences can’t be defined but are real.)
And even if it did, the government didn’t explain why coerced speech was
the only solution. (And we’re back to
less restrictive alternatives! Why isn’t
counterspeech a less restrictive alternative to suppressing false commercial
speech, as it is for false political speech?)
The result was “rational basis review minus any legitimate
justification.” Then res ipsa loquitur meant that disclosure
was self-evidently likely to convey the information to recipients, thus
advancing the government’s interest. “Seriously?
With logic like this, who needs a Ministry of Truth?” (Okay, but what is the structural difference
between this logic and Judge Brown’s reasoning above that requiring disclosures
for misleading speech is self-evidently likely to further the government’s
interest?)
Judge Brown also rejected reliance on the long history of
country of origin labeling, because for a long time the First Amendment wasn’t
enforced to protect commercial speech and litigants usually didn’t bother to
argue about it, raising substantive due process claims instead. If the test of
time were enough to protect a law, there’d be no commercial free speech at all.
The majority concluded that protectionism or patriotism was
the true justification for COOL, “even if it is only acknowledged with a sly
wink by the government.” But the government didn’t assert protectionism as a
justification, and that would be a substantial justification for coerced speech
only if “voluntary action and direct government speech were obviously
inadequate.” (Least restrictive means
again. Again, why doesn’t that also
apply to false or misleading commercial speech?) Anyway, the agency persistently denied
protectionist motives, stating that COOL wouldn’t necessarily change aggregate
consumer demand for products of any given origin and pointing to lack of
participation in voluntary labeling programs as evidence that consumers don’t
have a strong preference for COOL.
Likewise, the government didn’t assert any health or safety interests, maintaining instead that food safety regulations governed all food and that traceability wasn’t the intent of the rule. Indeed, the agency said that, though some evidence suggested that consumers used COOL as a proxy for safety information, that wasn’t a valid inference. This undercut the idea that it was reasonable for Congress to anticipate consumer preferences. (The government’s litigation position really is silly; by asserting factual premises that contradict consumer beliefs—those beliefs being that country of origin matters for various reasons, including safety risks—the government manages to be paternalistic in both directions. Its position seems to be: “this information should be disclosed to you, consumers, even though you don’t know what you’re doing and your preferences are wrong.”) The anecdotes in the legislative history didn’t suggest that COOL would be useful in a health crisis. Rather, the agency determined that prevention and recall measures are the means to be used to protect health.
Likewise, the government didn’t assert any health or safety interests, maintaining instead that food safety regulations governed all food and that traceability wasn’t the intent of the rule. Indeed, the agency said that, though some evidence suggested that consumers used COOL as a proxy for safety information, that wasn’t a valid inference. This undercut the idea that it was reasonable for Congress to anticipate consumer preferences. (The government’s litigation position really is silly; by asserting factual premises that contradict consumer beliefs—those beliefs being that country of origin matters for various reasons, including safety risks—the government manages to be paternalistic in both directions. Its position seems to be: “this information should be disclosed to you, consumers, even though you don’t know what you’re doing and your preferences are wrong.”) The anecdotes in the legislative history didn’t suggest that COOL would be useful in a health crisis. Rather, the agency determined that prevention and recall measures are the means to be used to protect health.
And now to the beating, Lochner-esque
heart of the matter: this case isn’t about COOL, or patriotism or
protectionism, or health and safety.
“[T]his is a case about seeking competitive advantage.” The rule “benefits one group of American
farmers and producers, while interfering with the practices and profits of
other American businesses who rely on imported meat to serve their customers. Such
a disproportionate burden ‘stands in sharp conflict with the First Amendment’s
command that government regulation of speech must be measured in minimums, not
maximums’” (citation omitted). (But
wait! How, you might well ask, did an economic burden on conditions of
production become a First Amendment
harm? Money may be speech in campaign
finance, but how is money spent to segregate animals by country of origin
speech? I think the dissent’s point must
be that an interest in helping one group over another can’t be
“substantial.” But stated that way it’s
a very broad claim, and one I don’t think the case law supports.)
Judge Brown predicted that today’s victors will live to
regret this when other objectionable disclosure requirements burden them, like disclosures about cattle feeding
or raising practices, environmental effects of beef production, “or even the
union status or wage levels of their employees.”
If “Made in the USA” worked, producers and sellers would
happily and noisily disclose, and consumers’ desires to buy American could be
satisfied by voluntary action. But mandatory
COOL just facilitated rent-seeking. By
accepting such flimsy, nebulous interests, the court allowed the government to
“commandeer the speech of others” on any ground, including motives “in aid of
any sort of crony capitalism or ideological arm-twisting.” The government’s alleged interest in
providing information will result in higher prices because of the cost of
monitoring the supply change, taking away the price advantage currently enjoyed
by some producers. “Query whether the
protections of the First Amendment should be abrogated for some businesses in
order to benefit other businesses.” (Query whether the First Amendment analysis
should turn on which businesses are benefited by a regulation. I think there are good non-speech-related
reasons we might want to limit big producers’ comparative advantage in the meat
production process; I also think that the “crony capitalism” objection may well
be valid. I merely doubt that the D.C.
Circuit Court of Appeals is the appropriate governmental body to resolve it, and in particular that the
First Amendment is the appropriate mechanism by which to do so.)
Judge Brown concluded that “[t]he First Amendment ought not
be construed to allow the government to compel speech in the service of
speculative or hypothetical interests for purely private benefits.” (What counts as a public benefit? If there’s no such thing as society, aren’t
all benefits private?) Under this
reasoning, there’s no limit to what government could compel. “[I]f this example of cronyism is okay, who
will balk at any other economic or ideological discrimination?” This result
dissolved “the whole idea of a right not to speak. … And it does so to
facilitate coercion and the imposition of orthodoxy. What is more
uncontroversial than orthodoxy?”
(I’m unclear on the fact/orthodoxy relationship here. I’m also unclear about the orthodoxy being
enforced by this regulation. I will
absolutely buy that, in the context of American society, COOL implicitly
carries a “buy American” message. But compared
to, say, Christian prayer at the beginning of a legislative session, or
mandatory ultrasounds and “disclosures” that abortion is associated with
suicide, I find it hard to identify ideological coercion here. There’s something here about the fever pitch
of American politics of late, I think.
If putting country of origin labeling on meat is tyranny, what do we
call it when the government jails journalists for reporting, or collects all our
private communications in case they might be useful later?)
And the final heights:
There can be no right not to speak
when the government may compel its citizens to act as mouthpieces for whatever
it deems factual and non-controversial and the determination of what is and
what is not is left to the subjective and ad hoc whims of government
bureaucrats or judges. In a world in which the existence of truth and objective
reality are daily denied, and unverifiable hypotheses are deemed indisputable,
what is claimed as fact may owe more to faith than science, and what is or is
not controversial will lie in the eye of the beholder.
On one reading of this claim, SEC disclosures, the FTC’s
consumer protection side, and most of what the FDA does are equally
unconstitutional, since only the speaker should decide for herself what facts
are “true.” On another, judges (and bureaucrats?) can decide some truths, but
not this one—mandatory disclosures are ok but have to address real deception,
however narrowly Judge Brown would define that. I think the dissent does itself
a disservice by mushing this all together.
The objection to allowing the government to find “facts” is itself not a
First Amendment objection, but rather an argument—Lochner again!—that the government should not be allowed to
regulate at all. (Also, and consistent
with Judge Brown’s dislike of commercial speech doctrine, note how commercial
speakers have become unmodified “citizens,” as if the majority’s holding
allowed disclosure mandates in noncommercial speech as well.)
No comments:
Post a Comment