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The American Beverage Association is suing the city of San Francisco over a law requiring warning labels on sugary beverages. The lawsuit relies on a unique argument: the First Amendment.
This raises the question: can you use free speech principles to shut somebody up?
The ABA is saying that San Francisco's bans on sugary soda ads on city property and mandatory warning labels are an attempt "to ensure that there is no free marketplace of ideas, but instead only a government-imposed, one-sided public 'dialogue' on the topic -- in violation of the First Amendment."
The two ordinances were passed by the city's Board of Supervisors by a unanimous vote last month. The warning label, required on advertisements for drinks but not the drinks themselves, would read: "WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes and tooth decay."
Free Speech or Forced Speech
The first problem with San Francisco's warning labels is they're missing the Oxford Comma. The second problem is that it might be unconstitutional. While the First Amendment guarantees the freedom of speech (with certain, limited exceptions), it also guarantees a freedom from forced speech.
In most cases where the Supreme Court looked at commercial speech, it was in relation to state restrictions on advertisements. Commercial speech generally gets less protection than, say, political speech, and states are permitted to regulate commercial speech in order to prevent misleading and deceptive advertising.
But warning labels are a little trickier. While we've all seen parental advisories on explicit music and the Surgeon General's warning on packs of cigarettes, some warnings can go too far. In fact, the Food and Drug Administration wanted to have more graphic warning labels on cigarettes, but a judge shot them down, saying, "The government's interest in advocating a message cannot and does not outweigh plaintiff's First Amendment right to not be the government's messenger."
Whether SF's anti-sugar campaign is too much of a message will be up to the California courts to decide.