Free Speech -- 2014

American Meat Institute v. USDA   (D.C. Circuit)

First Amendment limits on government-compelled disclosures

The American Meat Institute and others challenged a regulation from the U.S. Department of Agriculture (USDA) that requires country-of-origin labeling of meat, including where production of the meat (born, raised, or slaughtered) occurred. A primary issue in the case is whether the government-compelled disclosure violates the First Amendment by forcing companies to provide such detail about their products without advancing a sufficient governmental interest. The trial court rejected this claim, as did a 3-judge panel of the appeals court, and the full appellate court affirmed.

The issue in the case is "Whether, under the First Amendment, judicial review of mandatory disclosure of 'purely factual and uncontroversial' commercial information, compelled for reasons other than preventing deception, can properly proceed under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985), or whether such compelled disclosure is subject to review under Central Hudson Gas & Electric v. PSC of New York, 447 U.S. 56 (1980)."

This case is all about the standard of court review for compelled speech about commercial products. The NAM filed an amicus brief arguing that Zauderer review, which makes it easier for the government to justify compelled speech, should be limited to situations involving consumer deception. Applying a stricter standard of review would not undermine disclosures aimed at protecting the public's health and safety, and the government can disseminate other relevant factual information itself without requiring companies to do so. Indeed, using a product's label to carry government messages could drown out a company's own messages about the product.

We also argued that even if the more deferential Zauderer-type review is accepted, the government must still show that the compelled disclosure is "purely factual and uncontroversial". Some compelled disclosures strongly imply that the product at issue is inferior or morally tainted, forcing companies to denounce themselves. It is critical that the government be held to a stricter standard of review under such conditions.

On July 29, the court ruled 9 to 2 to uphold the regulation. The majority found that First Amendment interests are much weaker for disclosure laws than for laws suppressing speech, and that the government had a substantial interest in requiring labels so that consumers can choose American products, long-standing labeling requirements can be extended to food items, and so that consumers can react in the event of a food-borne illness outbreak. It found the labeling purely factual and uncontroversial, and that the requirement did not restrict or chill commercial speech.

Two judges strongly dissented, saying the majority had decided to "bust the mainspring of commercial speech jurisprudence." These dissenters said that the First Amendment's protection from government coercion "has now been reduced to an eerie echo of a supermarket tabloid’s vacuous motto: the government may compel citizens to provide, against their will, whatever information '[i]nquiring minds want to know!'"

Related Documents:
NAM amicus brief  (April 23, 2014)


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