When speech is a nuisance

October 16, 2018 | By DEBORAH LA FETRA

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.