October 16, 2018

When speech is a nuisance

By Deborah J. La Fetra Senior Attorney

Yesterday, the Supreme Court denied certiorari in Conagra v. State of California, a California state court decision holding that that three companies that lawfully sold lead paint are liable for creating a public nuisance and must therefore pay hundreds of millions of dollars into an “abatement” fund to investigate residential lead paint in the state’s ten most populous counties, and remediate any dangerous conditions found there. The refusal of the High Court to review this decision leaves a black mark on First Amendment law as well as nuisance law. As PLF explained in our amicus brief supporting the cert petition, the state court improperly found liability not because the companies manufactured or sold a dangerous product, but because, many decades ago, they promoted the use of then-lawful lead paint. The First Amendment protects the dissemination of truthful commercial messages about lawful products and services, even when those products may later result in harm to someone. The court’s novel holding to the contrary may encourage further lawsuits that seek to retroactively punish legitimate businesses for their speech. If these lawsuits do gain traction, the Supreme Court will undoubtedly have another opportunity to address the issue.

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ConAgra Grocery Products v. California

The State of California brought a lawsuit in 2000 to abate the alleged public nuisance caused by five companies’ manufacture and sale of lead paint at a time when lead paint was legal. The trial court found three of the companies to be liable for creating a public nuisance and ordered them to pay over a billion dollars into an abatement fund. As a consequence, the court opinion declares almost all properties in California that have lead paint on them to be per se public nuisances – exposing property owners to massive tort liability. The companies appealed and PLF filed an amicus brief arguing that argue that declaring lead paint to be a public nuisance violated the due process rights of both the paint companies and California property owners. The decision from the U.S. Supreme Court was unfavorable in that the cert petition was denied.

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