Will the Supreme Court save industry’s bacon?

In civics class, students learn that the First Amendment protects our freedom of speech. In practice, however, some judges use it as a bludgeon to strike down common-sense disclosure rules that benefit of workers, investors, and customers.

The trend goes back decades, but we can pick up the story in 2010 with the Supreme Court’s infamous Citizens United decision, which held that corporations have the same First Amendment rights as people. One year later, the Court went further and said that corporate sale and use of patient prescription information was “speech” protected by the First Amendment.

{mosads}The U.S. Court of Appeals in Washington, D.C. – known as the D.C. Circuit – took it from there. In 2012, a three-judge panel from that court struck down new federally-required warning labels on cigarette packages, theorizing that the labels violated tobacco companies’ First Amendment right not to speak. The next year, the court threw out a rule requiring employers to post an 11-by-17 inch employee “know your rights” poster. And earlier this year, it struck down a rule (supported by church and humanitarian groups) requiring publicly-traded corporations to report whether they trade in “conflict minerals” from war-torn central Africa.

But this summer, the full D.C. Circuit convened to hear a case that would let it re-examine this dangerous precedent.  It heard a challenge to a federal law requiring a label on fresh meat packages, identifying which country the meat came from. Now, many consumers prefer pure American beef. Some worry about the safety of foreign meat. But according to the corporate meat lobby, this “country of origin labeling” requirement wasn’t helpful information that would allow consumers to make informed choices at practically no additional cost to sellers. Rather, they claimed, it was a violation of the sacred protections of the First Amendment.

That’s absurd. The Founders didn’t put the First Amendment in the Constitution to guarantee that industry could dump mystery meat on an unsuspecting public.  Fortunately, the D.C. Circuit smelled the rot in the meat lobby’s argument, and tossed it into the trash. The court ruled that the earlier rogue decisions were based on faulty reasoning, and threw them out too.

That gives hope to cities and states around the country, because corporate trade groups are trying to use the First Amendment to strike down all sorts of laws. In Vermont, the agribusiness lobby is claiming that a law requiring disclosure of genetically-modified ingredients in foods violates the First Amendment. In Seattle, the franchised business lobby is challenging the city’s minimum wage law, arguing that it punishes franchised businesses for exercising Ronald McDonald’s First Amendment right to coordinated corporate advertising. These frivolous claims have become a standard tool of the corporate First Amendment litigation industry.

The D.C. Circuit’s latest decision may change all that, by shutting down the most extreme claims, and perhaps giving the Supreme Court an opportunity to reconsider whether corporations really should have the same First Amendment rights as people. We’ll know soon. Until then, hold onto your roast beef. 

Fein is the legal director of Free Speech For People  a national nonpartisan nonprofit organization that engages in legal advocacy to confront the misuse of the U.S. Constitution.


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