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The Health of Children and Consumers Is Threatened by Conservative Push for Corporate Speech Rights

Some pro-business federal judges have shockingly approved a constitutional right for big companies to avoid revealing product dangers on labels.

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Leon also agreed with tobacco lawyers, finding the photographic images—not the printed warnings—would “confiscate the front and back portions of cigarette packaging” and went beyond “purely factual and uncontroversial information,” the legal standard that he cited for government-compelled speech such as warning labels. “The Court concludes that plaintiffs have demonstrated a substantial likelihood that they will prevail… and that they will suffer irreparable harm.”

Who is Harmed?

Courts often look for middle ground balancing interests—often frustrating advocates on either side of a fight. The question of who is being harmed—and harmed more, the public or private commercial interests—shows how citizens have lost ground to corporations as fervent federal judges have expanded and elevated corporate speech.

Judge Leon’s order suspended a political process that included state attorneys general from both political parties, Congress, the Justice Department under a Democratic and Republican president, and other federal court rulings from judges appointed by three presidents. None of that mattered to Leon. “I would remind the Government that even decisions from other district courts in our Circuit have no binding effect on this Court,” the activist judge wrote.

In Judge Leon’s discussion of the “harm that is more than simply irretrievable,” he said that the tobacco companies will have to spend “tens of millions of dollars” redesigning cigarette packaging to comply with the FDA rules. He said the FDA-required images would use too much space on cigarette boxes, which also was unconstitutional.

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” he wrote, quoting the 1971 Supreme Court ruling that protected the New York Times and Washington Post from retaliation from the federal government after they published the Pentagon Papers, which detailed the military’s failures in the Vietnam War.

Think about that comparison: the tobacco companies’ rights to avoid putting photographs on cigarette box warning labels—after losing a major racketeering case and being ordered to change their labels by Congress—are comparable in Leon’s courtroom to the media’s right to print information about an unpopular war that killed 45,000 Americans by 1971.

An Uphill Fight

Another recent federal ruling where public-interest concerns have been thwarted concerns the first-in-the nation’s cell phone radiation labeling law.

In late October, U.S. District Judge William Alsup suspended a San Francisco ordinance requiring cell phone makers to include health warnings about radiation from the devices. These were to include an in-store poster and sticker, and fact-sheet given to buyers. The national trade association for the wireless industry sued to block the law, arguing that it violated their First Amendment rights to not speak about their products.  

Like Judge Leval’s dissent in the Vermont milk labeling case, Judge Alsup found “that a government may impose, out of caution, at least some disclosure requirements based on nothing more than the possibility that an agent may (or may not) turn out to be harmful.”  That statement appeared to be a public interest victory; but was not the end of the Court’s remarks. Judge Alsup found the fact-sheet was “misleading and must be corrected.”

He said the city’s fact-sheet could easily prompt buyers to “misunderstand this as more dangerous than it really is.” Like Judge Leon in the FDA tobacco case, he also rejected images that the city wanted to use in its poster. Further, Alsup ruled the poster was “not reasonably necessary and would unduly intrude on the retailers’ wall space.” The judge also said that the “sticker requirement is also unconstitutional” because “stickers will unduly intrude upon the retailers’ own message.”