Ninth Circuit sides with PLF in an important free speech decision

September 19, 2017 | By WENCONG FA

The First Amendment doesn’t just protect your right to speak, it also protects your right not to speak. So imagine if your municipal government required you to devote 20% of your shirt to “Smith for City Council” or plaster 20% of your car with “remember to recycle” stickers. No matter how laudable (or sinister) the message, you’d be upset. Under the First Amendment, the government can’t force you to use your products as a billboard for its preferred message.

Today the Ninth Circuit issued a favorable opinion on that point in American Beverage Association v. City and County of San Francisco. The case involves a San Francisco ordinance that forces advertisers of sugar-sweetened beverages to devote 20% of each advertisement for the government’s message that the beverages contribute to a variety of health problems. A group of producers and advertisers filed a constitutional challenge, arguing that the ordinance compels speech and thus violates the First Amendment. The district court, applying minimal First Amendment scrutiny, sided with San Francisco.

PLF urged the Ninth Circuit to side with the First Amendment instead, and today it did. The court’s decision, which prevents San Francisco from enforcing its unconstitutional ordinance, tracks many of the arguments that PLF made in its friend-of-the-court brief. First, PLF argued that the ordinance distorts the speaker’s intended message. The Ninth Circuit held that the compelled disclosures take up so much space that “an advertisement can no longer convey its message.” Second, PLF argued that the ordinance threatens free speech because it will cause some individuals to stop speaking at all. The Ninth Circuit observed that, for beverage companies, the ordinance “effectively rules out advertising” as a feasible option. Finally, PLF argued that speech mandates may themselves mislead consumers. The court agreed there too, explaining that the City’s warning implies that sugar-sweetened beverages uniquely contributes to health problems. Yet, as the FDA has found, sugar-sweetened beverages are no more likely to cause weight gain in adults than any other source of energy.

Today’s decision is a favorable and extremely important development for First Amendment law. Governments nationwide remain free to use their own billboards to convey their messages. They just can’t use you.