First Amendment 101: Corporate Speech

August 8, 2016

Throughout 2016, ANA has been actively working to stop efforts by state and local governments to take away advertisers’ First Amendment rights. In our latest action, we filed an amicus brief calling for a permanent injunction of the required health warnings on ads for certain sugar sweetened drinks in San Francisco. The San Francisco ordinance restricts ads in certain locations for sugared beverages that contain more than 25 calories from sweeteners per 12 ounces. It also requires that health warnings take up to 20 percent of the space on certain ads for these products. We believe this sort of mandated disclosure violates the First Amendment by commandeering space on truthful non-deceptive advertisements and inserting a compelled government message that advertisers will be forced to pay for.

We are also fighting against another sugar sweetened drink proposal in Baltimore, as well as an ordinance in Berkeley that would force wireless producers and sellers to provide a point of sale public notice regarding radio frequency safety. ANA has a strong track record of combating counterproductive and unconstitutional laws such as these. In 2011, we joined with a broad coalition of media and entertainment groups to file a “friend of the court” brief with the Supreme Court which helped to pave the way for an advertising industry victory in Brown v. Entertainment Merchants Association. In this case, the Court struck down a California law that restricted the sale or rental of violent video games to minors, holding that the law violated the First Amendment. In his majority opinion, Justice Antonin Scalia stated: “Even where the protection of children is the object, the constitutional limits on governmental action apply.”

Also, the Supreme Court in Zauderer v. Disciplinary Council made clear that the government could only impose mandated disclosure in ads if the advertisement was false or deceptive and the disclosures neutral and uncontroversial. Unfortunately, the California ordinances and the Baltimore proposal completely fail to meet any of these tests.

Why does ANA work so hard to combat continuously these types of unconstitutional proposals? If we do not defeat these proposals at their outset, they will create the impetus for numerous other states and localities to propose their own equally unconstitutional rules. If ordinances like the one in San Francisco are upheld, there would be virtually no limit to similar efforts targeting other products and services at any level of government. Every sugary, fatty, salty, processed, or other food disfavored by the science of the moment – and every other product or service regulators view as creating a ‘risk’ – would be susceptible to having a significant portion of its advertising turned into a placard for government hectoring with which the advertiser not only disagrees, but for which there may be data controverting the government position. ANA will continue to fight for our members and the rest of the advertising community through our work on the San Francisco and Berkeley cases and other First Amendment cases in order to stop these threats to the Constitution.

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