On Wed, 22 Mar 2000 19:59:41 -0800, William Evans wrote:
>Can a farmer just say what he uses /doesn't use on his farm?
>There is stilll freedom of speech in this country.
You have touched on the fascinating issue of commercial free speech.
There are a number of interesting court cases that can help you
understand that while government has *some* right to restrict speech
(you can't yell 'FIRE' in a crowded concert hall without getting into
trouble --- unless there really is a fire), it's chances of stopping
the kind of legitimate speech you describe are relatively small.
Here is a brief overview ...
There are a number of private programs out there, providing
certification for things like `organic,' `IPM,' `kosher,' and such. All
these labels have to be treated in a consistent manner, in that if it
would be inappropriate to a apply a restriction in the case of `kosher'
programs, it would be considered equally unacceptable to apply a
restriction of that nature in the case of `organic,' `IPM,' or similar
The certification seals of several private programs are registered
*trademarks*. The USDA would appear unable to demonstrate sufficiently
*compelling interest* (important legal concept here) to justify
preventing physical or corporate persons from using any legally
registered trademark, nor from making *true* statements regarding
requirements satisfied to earn the right to use it.
The First Amendment right of commercial free speech has been described,
defined, and elaborated in a number of court decisions over the last
twenty years or so. To wit:
The government may freely suppress commercial speech that is NOT
ACCURATE [Central Hudson Gas & Electric Co. v. Public Service
Commission, 447US 557, 563, 564 (1980)] as well as regulate DECEPTION
in the form of trade names [Friedman v. Rogers, 440 US 1 (1979)].
Accurate commercial speech is generally protected against government
restriction unless the State can establish that there exists some
SUBSTANTIAL INTEREST to be achieved by such restriction [Central
Hudson, 557, 564,568-69]. One example of interest ruled "substantial"
has been protection of an organization against deceptive promotional
practices implying sponsorship and/or association [San Francisco Arts &
Athletics, Inc. v. US Olympic Committee, 483US 522 (1987)]. An example
of interest ruled "insubstantial" was the government's purported
interest in protecting postal patrons against material deemed offensive
but not obscene [Bolger v. Youngs Drug Products Corp., 463US 60 (1983).
Restrictions on commercial free speech must provide direct and
effective SUPPORT for the ASSERTED PURPOSE [Virginia State Board of
Pharmacy v. Virginia Citizens Consumer Council, 425US 748 (1976) and
Bates v. State Bar of Arizona, 433US 350 (1977)]. Furthermore, in
Bolger, not only was the interest judged insubstantial, but the
restraint was deemed to be indirect and/or ineffectual.
The means of restriction must be NARROWLY TAILORED TO ACHIEVE THE
DESIRED OBJECTIVE [Board of Trustees v. Fox, 492US 469,480 (1989)]. It
is difficult to see how restricting the use of legally registered
trademarks, as well as prohibiting a range of *true* statements about
how a product was produced could possibly pass this test.
Government has a clearly established right to regulate the form of
commercial free speech in order to prevent deception. Similarly, it can
require warnings and/or complete statements in order to prevent
deception by means of partial truths [Bates, 383-84].
Government may not regulate commercial speech on the basis of time,
place, or manner of said commercial speech unless there exist AMPLE
ALTERNATIVE CHANNELS to convey the same message, and the regulation
does not limit the content of such commercial speech [Linmark
Associates v. Township of Willingboro, 431US 85,93-94 (1977)].
The US Supreme Court has furthermore entrenched the rights of
commercial speech in two recent decisions. In Rubin v. Coors, the Court
ruled 9-0 that government regulators did not have the right to prevent
Coors from providing accurate information (in this case, alcohol
content) on the principal display panel of its products. In LiquorMart
44 v. State of Rhode Island, the Court held 7-2 that the First
Amendment right of ### commercial free speech took precedence over
even another section of the Constitution ### interpreted as granting a
State the right to restrict such speech in certain situations.
It would consequently seem highly unlikely (in view of even this
cursory overview of the pertinent decisions) that any attempted
restriction (by the USDA or other agency) on use of trademarks or
statements to convey true and accurate commercial information
(including how you produce your food) would stand up to the inevitable
If you've read this far, you will by now also probably understand that
any regulatory attempt to restrict *political* speech by controlling
political advertising (the core of McCain--Feingold) is
constitutionally doomed, unless the Court gets packed with people
having absolutely zero respect for the Constitution as it was written.
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