Monday, September 28, 2015
Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage. Recall that the complaint challenged the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.
The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine. The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce." Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:
We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.
The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause. The Ninth Circuit panel concluded:
[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.
The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously. The Ninth Circuit applied the lowest form of rational basis scrutiny - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.
The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech" was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."
Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.
The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors. But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.
Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility. Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.
September 28, 2015 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US), Teaching Tips | Permalink | Comments (0)
Monday, August 3, 2015
Chief Judge B. Lynn Winmill for the United States District of Idaho today held Idaho's so-called "Ag-Gag" law, Idaho Code § 18-7042, unconstitutional in his opinion in Animal Defense League v. Otter. Judge Winmill found that the law violated both the First Amendment and the Equal Protection Clause.
The Idaho statute creates a new crime, “interference with agricultural production.” I.C. 18-7042. A person commits the crime of interference with agricultural production if the person knowingly:
(a) is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass;
(b) obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;
(c) obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility's operations . . .
(d) Enters an agricultural production facility that is not open to the public and, without the facility owner's express consent or pursuant to judicial
process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility's operations; or
(e) Intentionally causes physical damage or injury to the agricultural production facility's operations, livestock, crops, personnel, equipment, buildings or premises.
Chief Judge Winmill described the legislative history including statements that compared animal rights investigators to “marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission.” However, for Winmill, there is a better comparison:
The story of Upton Sinclair provides a clear illustration of how the First Amendment is implicated by the statute. Sinclair, in order to gather material for his novel, The Jungle, misrepresented his identity so he could get a job at a meat-packing plant in Chicago. William A. Bloodworth, Jr., UPTON SINCLAIR 45–48 (1977). Sinclair’s novel, a devastating exposé of the meat-packing industry that revealed the intolerable labor conditions and unsanitary working conditions in the Chicago stockyards in the early 20th century, “sparked an uproar” and led to the passage of the Federal Meat Inspection Act, as well as the Pure Food and Drug Act. National Meat Ass'n v. Harris, 132 S.Ct. 965 (2012). Today, however, Upton Sinclair’s conduct would expose him to criminal prosecution under § 18-7042.
On the First Amendment challenge, the judge found that Idaho's ag-gag statute is content based and merits strict scrutiny. The opinion revisits an earlier ruling so concluding to reiterate that the United States Supreme Court's opinion in United States v. Alvarez ("the stolen valor case"). Judge Winmill notes that any deception involved in the ag-gag violation would be not be harmful: "the most likely harm that would stem from an undercover investigator using deception to gain access to an agricultural facility would arise, say, from the publication of a story about the facility, and not the misrepresentations made to gain access to the facility." And "harm caused by the publication of true story is not the type of direct material harm that Alvarez contemplates." The judge also held that the recording provision is content-based.
Moreover, Judge Winmill implicitly determines that the law is viewpoint-based:
a review of § 18-7042’s legislative history leads to the inevitable conclusion that the law’s primary purpose is to protect agricultural facility owners by, in effect, suppressing speech critical of animal-agriculture practices.
Not surprisingly, the statute does not survive strict scrutiny. The judge is skeptical that the "property and privacy interests of agricultural production facilities" are sufficiently compelling given that food production is a heavily regulated industry. Even if the interests were compelling, however, the statute was not narrowly tailored:
Criminal and civil laws already exist that adequately protect those interests without impinging on free-speech rights. It is already illegal to steal documents or to trespass on private property. In addition, laws against fraud and defamation already exist to protect against false statements made to injure or malign an agricultural production facility.
The judge thus concludes that the law restricts more speech than is necessary to achieve its goals.
On the Equal Protection Clause issue, the court's conclusion does not depend on a strict scrutiny analysis. The judge finds that the ag-gag statute cannot satisfy even rational basis review. First, Judge Winmill finds that that state's purported interest is not legitimate:
The State argues that agricultural production facilities deserve more protection because agriculture plays such a central role in Idaho’s economy and culture and because animal production facilities are more often targets of undercover investigations. The State’s logic is perverse—in essence the State says that (1) powerful industries deserve more government protection than smaller industries, and (2) the more attention and criticism an industry draws, the more the government should protect that industry from negative publicity or other harms. Protecting the private interests of a powerful industry, which produces the public’s food supply, against public scrutiny is not a legitimate government interest.
Second, the judge finds that the actual interest is a “a bare congressional desire to harm a politically unpopular group" and thus "cannot constitute a legitimate governmental interest if equal protection of the laws is to mean anything,” quoting and relying on U. S. Dept. of Agriculture v. Moreno (1973). "As a result, a purpose to discriminate and silence animal welfare groups in an effort to protect a powerful industry cannot justify the passage" of the statute.
Judge Winmill's decision is ground-breaking. So-called "ag-gag" laws have proliferated and are being challenged, usually on First Amendment grounds. Undoubtedly the state will appeal and the Ninth Circuit will have a chance to decide whether Judge Winmill was correct that the Idaho law is similar to the day labor solicitation prohibition in Arizona's SB1070 that the Ninth Circuit held unconstitutional in Valle Del Sol Inc. v.Whiting.
UPDATE: Check out this analysis by ConLawProf Shaakirrah Sanders over at casetext and her pre-decision discussion about the case with Idaho Public Radio.
Wednesday, April 22, 2015
The issue of a federal regulatory scheme of raisins returned to the United States Supreme Court for another round of oral arguments today in Horne v. Department of Agriculture.
Recall that in a brief opinion in June 2013, the Court reversed the Ninth Circuit and held that the Hornes did state a claim for regulatory taking. The claim arises from a regulatory program under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., that mandates that a certain percentage of a raisins be put in "reserve" each year. By resisting the program, the Hornes have become "outlaws" or heroes of sorts.
While the Hornes continue to argue that the program constitutes a taking, in today's oral argument Michael McConnell representing the Hornes pressed the issue of the taking as a per se one rather than a regulatory one because the Department of Agriculture takes possession and title of the raisins.
The Deputy Solicitor General, Edwin Kneedler, rejected the Chief Justice's humorous suggestion that government would "come up with the truck and you get the shovels and you take their raisins, probably in the dark of night," by insisting that under the Order, the producer submits the raisins to the handler who divides them into two categories. The reserve raisins are separated for later sale, the proceeds of which are pooled and distributed back to the producers. However, Kneedler did admit that one can assume that the government committee takes title in order to sell the raisins.
There were also questions of even if there was a taking whether any "just compensation" was due. In other words, what if the government taking resulted in no loss - - - or even a benefit - - - to the Hornes?
But the Justices seemed bothered by the program, with Justice Scalia expressing this discomfort most blatantly: "Central planning was thought to work very well in 1937, and Russia tried it for a long time." Perhaps the program - - - and the 8 or 10 or maybe more programs that are similar - - - is simply a relic of another time.
However, as Justice Kagan made clear, whether the program was sensible or ridiculous was not for the Court to decide and, she implied, irrelevant to the taking analysis.
Thursday, June 19, 2014
In its opinion in Desertain v. City of Los Angeles, the Ninth Circuit held that a provision of the Los Angeles municipal code prohibiting using automobiles as living quarters was unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment.
Section 85.02 of the municipal code, entitled "Use of streets and public parking lots for habitation" provides:
No person shall use a vehicle parked or standing upon any City street, or upon any parking lot owned by the City of Los Angeles and under the control of the City of Los Angeles or under control of the Los Angeles County Department of Beaches and Harbors, as living quarters either overnight, day-by-day, or otherwise.
In finding the provision unconstitutionally vague, the court's opinion authored by Judge Harry Pregerson considered whether it gave adequate notice of the acts prohibited as required by City of Chicago v. Morales, 527 U.S. 41 (1999), and focused on the four plaintiffs and their arrests:
Plaintiffs are left guessing as to what behavior would subject them to citation and arrest by an officer. Is it impermissible to eat food in a vehicle? Is it illegal to keep a sleeping bag? Canned food? Books? What about speaking on a cell phone? Or staying in the car to get out of the rain? These are all actions Plaintiffs were taking when arrested for violation of the ordinance, all of which are otherwise perfectly legal. And despite Plaintiffs’ repeated attempts to comply with Section 85.02, there appears to be nothing they can do to avoid violating the statute short of discarding all of their possessions or their vehicles, or leaving Los Angeles entirely. All in all, this broad and cryptic statute criminalizes innocent behavior, making it impossible for citizens to know how to keep their conduct within the pale.
As the court noted, the ordinance was "amorphous" enough to include "any vacationer who drives through Los Angeles in an RV."
However, the seeming reality that vacationers in RVs were not arrested led the court to its second reason for concluding the ordinance was unconstitutionally vague. The court found that the ordinance "promotes arbitrary enforcement that targets the homeless," as is inconsistent with Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). The ordinance is "broad enough to cover any driver in Los Angeles who eats food or transports personal belongings in his or her vehicle," yet "it appears to be applied only to the homeless." While the city might certainly have relied upon a limiting construction, its memo attempting to do so was "disfavored" by the law enforcement head of the homelessness task force and police officers did not follow it.In the first pages of the opinion, the court discussed four of the individual plaintiffs in detail. In its final paragraph, the court summarized their plight and its rationale:
For many homeless persons, their automobile may be their last major possession — the means by which they can look for work and seek social services. The City of Los Angeles has many options at its disposal to alleviate the plight and suffering of its homeless citizens. Selectively preventing the homeless and the poor from using their vehicles for activities many other citizens also conduct in their cars should not be one of those options.
Saturday, December 7, 2013
In Craig and Mullins v. Masterpiece Cakeshop, Inc., the subject is not the ACA ("Obamacare") as in the cases recently granted certiorari by the United States Supreme Court, or even a UK hotel or wedding photographs, both of which we discussed here, but a cake. But all these cases raise a similar question: can a secular for-profit corporation, or its owners, be exempted from a law by reason of a religious belief?
The 14 page opinion of the Administrative Law Judge (ALJ) in Masterpiece Cakeshop firmly rejects the arguments of the Cakeshop, reasoning that to accept its position would be to "allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage." The ALJ was not persuaded by the fact that Colorado, where the cakeshop is located, does not recognize same-sex weddings, because the cakeshop owner admitted he would feel similarly if it were a same-sex commitment ceremony or civil union, neither of which is forbidden by state law. Indeed, nothing compels the cakeshop or its owner "to recognize the legality of a same-sex wedding or to endorse such weddings," only, like "other actors in the marketplace serve same-sex couples in exactly the same way they would serve heterosexual ones."
The ALJ rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'"
As to the free exercise claim, the ALJ noted that the regulation at issue distinctly regulated conduct rather than belief. The ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test. The ALJ also rejected the argument "because the public accommodation law not only restricts their free exercise of religion, but also restricts their freedom of speech and amounts to an unconstitutional “taking” of their property without just compensation in violation of the Fifth and Fourteenth Amendments" a hybrid right meriting strict scrutiny was involved. For the ALJ, the "mere incantation" of other constitutional rights does not a hybrid claim create.
The remedy was a cease and desist order rather than damages.
[image: one of the cakes advertised on the Masterpiece Cakeshop website]
Sunday, September 15, 2013
Over at the New Yorker blog, Lincoln Caplan's piece, "Justice Ginsburg and Footnote Four" analyzes Ginsburg's discussion last week at the National Constitution Center, arguing that one of her statements "deserves more attention than it has gotten."
Ginsburg stated that her dissent last term in Fisher v. University of Texas Austin, regarding judicial review of affirmative-action plans of colleges and universities, "was inspired by a 1938 ruling not mentioned in the dissent—actually, by one of its footnotes." That most famous footnote - - - footnote four - - -of United States v. Carolene Products, is for many (including Caplan) the foundation of "a coherent justification for unelected justices to overturn legal decisions of elected officials when the fairness of the Constitution, and of democracy, is at stake."
Recall that the 1938 case of Carolene Products involved a federal statute regulating the shipment of "filled milk" (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream). It may be that this case was also on Ginsburg's mind during the oral arguments of another one of last term's cases: In her questioning of Paul Clement, who represented BLAG, in United States v. Windsor about the constitutionality of DOMA, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage." As we noted at the time, Ginsburg's allusion would have special resonance for those who recalled Carolene Products.
September 15, 2013 in Affirmative Action, Courts and Judging, Fifth Amendment, Food and Drink, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Sunday, July 8, 2012
In its opinion in Curves LLC v. Spalding County, Georgia, the Eleventh Circuit upheld the county's ordinance prohibiting nude dancing in places where alcohol is sold.
The precise questions before the court were a bit muddled, since there were two original ordinances - - - the Adult Ordinance and the Alcohol Ordinance - - - and two amended ordinances - - - the Amended Adult Ordinance and the Amended Alcohol Ordinance. Essentially, the court focused on the Amended Alcohol Ordinance, finding a resolution to that challenge would resolve all constitutional claims.
The panel rejected the First Amendment challenge, stating that the Amended Alcohol Ordinance "targets the undesirable secondary effects of nude dancing and alcohol sales" and thus is content-neutral and subject to the O'Brien test. The per curiam opinion found the ordinance easily passed O'Brien and also that the ordinance was not overbroad.
One problematic aspect was the Ordinance's so-called “mainstream exception” that exempts
the premises of any mainstream theater, which means a theater, concert hall, museum, educational institution or similar establishment which regularly features live performances which are not distinguished or characterized by an emphasis on the depiction, display, or description or the featuring of ‘specified anatomical areas’ or ‘specified sexual activities’ in that the depiction, display, description or featuring is incidental to the primary purpose of any performance.”
The opinion concluded that the exemption did not introduce overbreadth into the ordinance, but declined to consider whether it rendered the ordinance vague, concluding that issue was not squarely before it.
Another problematic aspect of the appeal was the request that Federal District Judge Jack Kemp's Camp's judgment be vacated and he be retroactively recused as judge. As the per curiam opinion explains:
After Judge Camp’s rulings in this case, federal law officers arrested Judge Camp and charged him with crimes. That Judge Camp -- around the time he was deciding this case -- frequented Atlanta-area, nude-dancing clubs has become known. Judge Camp’s conduct was, in fact, unrelated to this case. No one contends that Judge Camp had visited the Curves club. Judge Camp ultimately pleaded guilty to criminal charges and resigned his office.
Judicial bias can be difficult to sustain, as we discussed in conjunction with the Proposition 8 litigation. However, in Judge Camp's situation, Curves is not the only litigant seeking review of the judge's actions; in addition to his drug and prostitution offenses, he claimed to have bipolar disorder and there were also claims of racial bias derived from statements to his paramour.
Wednesday, July 27, 2011
The raisins so prominent in morning cereal and children's snacks are "heavily regulated" agricultural commodities under marketing orders promulgated by the USDA (United States Department of Agriculture) under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq.
In its opinion in Horne v. USDA, the Ninth Circuit upheld the imposition of civil assessments under the regulations and upheld the constitutionality of the regulatory scheme. The central requirement at issue mandates that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices.
The Hornes' administrative and statutory claim was that they had reorganized their raisin business and were no longer subject to the regulations because they were no longer "handlers" but only "producers."
Their major constitutional claim was that even if subject to the regulations, "the requirement that they contribute a specified percentage of their annual raisin crop to the government-controlled reserve pool constitutes an uncompensated per se taking in violation of the Fifth Amendment." They also claimed that the penalities imposed for their “self-help” noncompliance (caused by their reorganization in an attempt to escape from the regulations) violated the Eighth Amendment's Excessive Fines Clause.
The Ninth Circuit panel opinion has an excellent rehearsal of regulatory takings doctrine, which clearly does not support the Hornes' claim. However, as the opinion notes,the Hornes claim that the Ransin Marketing Order is a physical taking because there is an annual “direct appropriation” of their reserve-tonnage raisins. The panel rejected this construction: "Though the simplicity of their logic has some understandable appeal—their raisins are personal property, personal property is protected by the Fifth Amendment, and each year the RAC “takes” some of their raisins, at least in the colloquial sense—their argument rests on a fundamental misunderstanding of the nature of property rights and instead clings to a phrase divorced from context."
Instead, as the panel reasoned,
the Raisin Marketing Order applies to the Hornes only insofar as they voluntarily choose to send their raisins into the stream of interstate commerce. Simply put, it is a use restriction, not a direct appropriation. The Secretary of Agriculture did not authorize a forced seizure of forty-seven percent of the Hornes’ 2002-03 crops and thirty percent of their 2003-04 crops, but rather imposed a condition on the Hornes’ use of their crops by regulating their sale.
The panel then cited a Ninth Circuit opinion from 1938 - - - Wallace v. Hudson-Duncan & Co., 98 F.2d 985 - - - rejecting a takings challenge to a reserve requirement under the walnut marketing order. The panel therefore joined the Court of Federal Claims, which not long ago decided the same question under the Raisin Marketing Order, Evans v. United States, 74 Fed. Cl. 554 (2006), aff’d, 250 Fed. Appx. 321 (Fed. Cir. 2007); in accord with a smiliar case rejecting a challenge to the reserve program under the almond marketing order, Cal-Almond, Inc. v. United States, 30 Fed. Cl. 244 (1994).
On the Eighth Amendment claim, the panel applied the test from United States v. Bajakajian, 524 U.S. 321(1998), considering whether the assessment is imposed, at least in part, for punitive and not merely remedial purposes, and whether the fine is grossly disproportional to the gravity of the offense for which it is imposed. Affirming the district judge, the panel found the fine was remedial and the infractions serious. It also noted that the fines were not as "steep" as those authorized by the statute.
The panel's conclusion notes the Hornes' frustration with the raisin regulatory scheme, but observes that the judicial role "is limited to reviewing the constitutionality and not the wisdom of the current regulation." The Hornes' remedy, the opinion suggests, is with the Secretary of Agriculture.
Tuesday, April 12, 2011
The en banc Eleventh Circuit has agreed with the panel that an Orlando, Florida ordinance prohibiting the provision of food to large groups is constitutional. The panel opinion, which we discussed here, reversed the district judge, over a vigorous dissent by Judge Rosemary Barkett.
The en banc Eleventh Circuit's relatively brief (15 page) opinion - - - joined by Judge Barkett and without dissent - - - sidestepped the issue of "expressive conduct":
The resolution of this appeal does not require us to determine whether the feeding of homeless persons by Orlando Food Not Bombs in public parks is expressive conduct entitled to protection under the First Amendment. We will assume, without deciding, that this conduct is expressive and entitled to some protection under the First Amendment. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). But even when we assume that the feeding of homeless persons by Orlando Food Not Bombs is expressive conduct, we cannot conclude that the ordinance that regulates that conduct violates the Free Speech Clause of the First Amendment.
The en banc court ruled that it would "uphold the ordinance of the City of Orlando both as a
reasonable time, place, or manner restriction of speech and as a reasonable regulation of expressive conduct." It easily concluded that the test of United States v. O’Brien, 391 U.S. 367 (1968) was satisfied:
The ordinance is a valid regulation of expressive conduct that satisfies all four requirements of O’Brien. First, Orlando Food Not Bombs does not contest that it is within the power of the City to enact ordinances that regulate park usage. Second, the City has a substantial interest in managing park property and spreading the burden of large group feedings throughout a greater area and those interests are plainly served by the ordinance. Third, the interest of the City in managing parks and spreading large group feedings to a larger number of parks is unrelated to the suppression of speech. Fourth, the incidental restriction of alleged freedoms under the First Amendment is not greater than necessary to further the interest of the City.
Sunday, March 20, 2011
The regulation of food and its consumption have always posed constitutional issues - - - recall the "wheat case" of Wickard v. Filburn (1942) - - - and for the last several years, public health advocates, now prominently joined by First Lady Michelle Obama, have highlighted the need for vigorous public policy solutions to the increasing costs of obesity in America. One of the most well-known policies aimed at adjusting Americans’ eating habits is the mandatory disclosure of nutritional information by restaurants. Leading the way on such mandates include several of America’s largest cities, including New York, where Mayor Bloomberg has successfully advocated for the posting of calorie information in many of the city’s eateries; this policy ultimately survived a constitutional challenge.
In West Virginia, the efforts to mandate caloric information have been less successful. During the 2009 Regular Session of the WV State Legislature, a bill was introduced and recommended for passage in the House of Delegates that would have required the posting of calorie counts of menu items in most restaurants throughout the state. The bill died before making it to the House floor, perhaps because of the efforts of former state senator and statewide restaurateur, Oshel Cragio. Craigo, who owns a popular fast-food chain of home-style breakfast restaurants named “Tudor’s Biscuit World,” buttered-up House committee members with free biscuit-style breakfast entrees on the morning in which the nutritional posting bill was being debated. Perhaps unsurprisingly, members chose the biscuits over the bill. However, a provision in the federal health care reform bill will likely require Cragio’s restaurants to post calorie counts.
Mandatory calorie disclosures typically provoke the anti-government sentiments often shared by members of the modern Tea Party, a movement we’ve covered here. The rhetoric often invokes an originalist imagining of Revolutionary-era politics as championing individual liberty against government policies.
Professor Alison Peck at the WVU College of Law challenges the symbolism used by modern day Tea Party by arguing that early-American political groups associated with the Founding Fathers actually had more in common with contemporary advocates of food-consumption regulation than with the small-government Tea Party activists of today.
Peck has posted an abstract of her article, Revisiting the Original “Tea Party”: The Historical Roots of Regulating Food Consumption in America, on ssrn here, but we've had a chance to read the entire draft manuscript. It's a stellar argument supporting her central assertion that “opponents of modern food-consumer regulation misapprehend Revolutionary history. . . .” Manuscript at 5.
Specifically, the "non-importation and non-consumption agreements suggest that the colonists considered private consumption decisions to be fair subjects of coordinated public action where those decisions had negative public consequences.” Id. at 7. Indeed, Peck argues that a close examination of those non-importation agreements and their context suggests that they arose, in principle, from many of the same forces driving food-consumer regulation today. These forces include shared public costs attributable to private consumption decisions; popular rhetoric linking private choices and public costs; sponsorship of restrictions by community leaders and elites; and collectively-enforced consequences for failure to conform. Id.
While the author admits the obvious difference between the modern regulations and the Revolution-era non-importation and non-consumption agreements—that the latter agreements had no force of law—Peck claims that the “disenfranchised colonists came as close as they could to replicating that effect: The increasingly coercive mechanisms of outing and ostracizing free riders, seizing and holding offending goods, and even using violence against offenders gradually served to raise the cost of non-compliance.” Id at 50. Indeed, Professor Peck believes that it was “likely that the colonists would have given their agreements the force of law if they had had the constitutional power to do so.” Id. Supporting this assertion, the author briefly discusses the imposition of the federal excise tax on whiskey in 1791—a tax that led to a brief but serious rebellion in the young nation.
Peck concludes by chiding the modern Tea Party for their claims that food-consumer regulation are “unprecedented or un-American,” as such regulatory forces are “far from novel.” Id. at 54. She writes:
The idea that a society may regulate individual consumption choices in the name of the collective good was expressed as early as the pre-Revolutionary non-consumption and non-importation agreements. Although those agreements were quasi-legal instruments organized and enforced by the colonists outside of formal legislative bodies, their purpose was equivalent: to force accountability for private consumption decisions that had shared social costs.
The powers of governments (federal, state, and local) and individual liberties has been an ongoing balancing act in US legal history. Peck's article will be an important contribution to our assessment of our understanding of that history.
with J. Zak Ritchie
[image: Mary Cassat, American artist, "Afternoon Tea Party," 1891, via]
March 20, 2011 in Commerce Clause, Congressional Authority, Current Affairs, Due Process (Substantive), Food and Drink, Fundamental Rights, History, Scholarship, State Constitutional Law, Theory | Permalink | Comments (0) | TrackBack (0)
Thursday, August 12, 2010
Another packaged salad has been recalled by Fresh Express. This may not seem as if it presents a constitutional issue, but perhaps it does.
Suppose I think three recalls in four months is pretty extreme and I start saying things like
"packaged salad is inherently unhealthy."
I am not really saying that; it is a hypothetical!
And I want to make it clear that it is a hypothetical because of the continuing existence of those notorious veggie-libel statutes. There are more than a dozen, including an Ohio statute that provides:
Any producer of perishable agricultural or aquacultural food products that suffers damage as a result of another person’s disparagement of any such perishable agricultural or aquacultural food product or any association representing producers of perishable agricultural or aquacultural food products that have suffered damage as a result of another person’s disparagement of any such perishable agricultural or aquacultural food product may bring an action for damages and for any other relief a court having jurisdiction considers appropriate. If the plaintiff establishes that the disseminator knew or should have known that the information was false, damages may be awarded, including compensatory and punitive damages, reasonable attorney’s fees, and costs of the action.
I might be able to argue, of course, that "packaged salad is inherently unhealthy" is only my opinion. And perhaps I might even be able to prevail on a "falsity" standard. And of course I'd raise the First Amendment.
But I'd be worried that I might not prevail, and if I don't, I would be paying punitive damages and attorneys fees, not to mention my own litigation fees.
And if I did start talking about unhealthy packaged salads - - - which I am not! - - - it might be that I'd be contacted by an attorney representing salad packagers who would advise me about the pertinent statutes. Would that really happen? While there are some documented incidents from a decade ago, the present situation is less well known. A group called "Signal Interference" is collecting "any threats of litigation using food disparagement laws as their premise," more here.
Meanwhile, I don't have a thing to say about my dinner.
Saturday, August 29, 2009
After documenting the emphasis on attractiveness, including matters of weight, Rhode tackles the legal arguments. She states that the "clearest argument for banning discrimination based on appearance is that it offends principles of equal opportunity and individual dignity." Id. at 1048. Additionally, another
reason for prohibiting discrimination based on appearance is that it reinforces group disadvantages. As constitutional scholars including Cass Sunstein and J.M. Balkin have argued, practices that systematically stigmatize and subordinate groups prevent members from developing their full capacities. The perpetuation of hierarchies also jeopardizes perceptions of fairness and legitimacy on which well-functioning democracies depend. Like many other forms of discrimination, prejudice based on appearance compounds the disadvantages of already disadvantaged groups, particularly those based on class, gender, race, ethnicity, disability, and sexual orientation.
Id. at 1052. Her third and final rationale supporting the argument for prohibiting appearance discrimination is "that it restricts individuals’ right to self-expression." Id. at 1058. One of her arguments refuting criticisms is that there is an
assumption that prejudice based on appearance is more natural and harder to eradicate than other forms of bias. In fact, considerable evidence suggests that in-group favoritism—the preferences that individuals feel for those who are like them in salient respects, such as race, sex, and ethnicity—are also deeply rooted. Plessy v. Ferguson, the shameful 1896 Supreme Court decision that affirmed “separate but equal” racial policies, was built on the assumption that segregation was a natural desire. Yet that desire has proven open to change, partly through legal interventions. A half-century ago, a majority of Americans surveyed thought that the Supreme Court’s ruling in Brown v. Board of Education prohibiting school segregation had “caused a lot more trouble than it was worth.” Today, only 11% share that view and the ruling is widely regarded as one of the Court’s finest moments.
Id. at 1069-1070 (citations omitted). Rhode's point is that law can affect societal change (and she provides other examples). She is not arguing that appearance should be a suspect or even quasi-suspect classification for equal protection purposes. However, she does provide a concluding section on "Directions for Reform," including a research agenda and calls for activism, including state and local action.
I first saw a mention of this article on Feminist Law Professors in an entry from Ann Bartow. Thanks to Ann, I've read an engaging thought-provoking piece. And it might even be the basis of a Constitutional Law hypothetical in next week's class.