On February 26, 2019, in Nutraceutical Corp. v. Lambert, the Supreme Court of the United States held that Federal Rule of Civil Procedure 23(f)’s 14-day deadline to request permission to appeal a district court’s order regarding class certification cannot be equitably tolled.
The state and federal governments tax a wide variety of growers of agricultural products to fund generic advertising – e.g., beef producers to fund “Beef: It’s What’s For Dinner” or pork producers to fund “Pork: The Other White Meat.” Many growers would prefer not to fund these programs, but the Supreme Court has generally upheld them as long as the content was dictated or approved by a government agency.
These kinds of marketing efforts date to the 1930’s at the state level and the mid-1960’s at the federal level. They can cost large growers several hundred thousand dollars a year. The rationale is that all growers benefit from the increased demand supposedly generated by generic advertising, so the program must be compulsory to avoid free riders from benefiting from the advertising without sharing its costs. Not all growers agree with this proposition. Some of them argue that generic advertising is harmful to their interests, because they market their product on the basis that they are different from, and better quality than, generic products.
In 1976, the Supreme Court decided Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. 425 U.S. 748 (1976). Virginia Citizens held that the First Amendment protects commercial speech such as advertising, at least so long as the advertising is truthful and not deceptive. And the Court has long held that the First Amendment also largely protects people from compelled speech – being forced to support speech with which they disagree.
In 1988, a California fruit grower challenged the marketing tax on First Amendment grounds. In Glickman v. Wileman Bros. & Elliott, 531 U.S. 457 (1997), by a 5-4 vote, the Supreme Court upheld the program. The majority held that the program did not compel Wileman to engage in speech, merely to contribute money to fund it. Because the end product contained no ideological or political message, it did not run afoul of the First Amendment. Continue Reading Compelled Speech
The Supreme Court recently granted certiorari to review an opinion of the Sixth Circuit on constitutional limits on states’ ability to regulate the distribution of alcohol beverages. Tennessee Wine & Spirits Retailers Ass’n v. Byrd, No. 18-96.
With the advent of the 21st Amendment in 1933, which turned control of alcohol beverage regulation over to the states, temperance groups insisted on a rigid, three-tier system for the distribution of alcohol. Typically, under state laws a manufacturer of alcohol beverages can only sell to a distributor and it may not have any ownership interest in the distributor. The distributor in turn sells to retailers who sell to the general public. Neither the manufacturer nor the distributor may have any ownership interest in the retailer. Consumers can only purchase alcohol beverages from retailers.
The rise of the internet and direct delivery companies such as Amazon has undermined this rigid distribution system. The State of Michigan amended its statute to permit wineries located in Michigan to sell directly to consumers. Out-of-state wineries, however, could only sell to Michigan distributors. In Granholm v. Heald, 544 U.S. 460 (2005), a surprisingly divided Supreme Court held, 5-4, that its anti-discrimination holdings under the Commerce Clause trumped the states’ residual authority under the 21st Amendment. It also held that the direct-sale statute impermissibly discriminated in favor of in-state wineries.
Granholm settled the question of whether states could discriminate against out-of-state manufacturers. It left open the question of whether the Commerce Clause also protected wholesalers and retailers and the lower courts are divided on that point. Granholm clearly held that the three-tier system is not a per se violation of the Commerce Clause. Based on that holding, the Second, Fourth and Eighth Circuits have all held that Granholm does not apply to wholesalers and retailers. The Fifth and Sixth Circuits have reached the opposite result. Continue Reading Constitutional Requirements For Distribution Of Alcohol
On June 22, 2017, we blogged about the Wyoming “ag gag” statute designed to discourage undercover reporting in animal facilities. The statute prohibited persons from (1) trespassing on private land for the purpose of collecting data; (2) trespassing to collect data; or (3) trespassing to obtain access to public land for such purposes. The District Court held that the statute implicated no First Amendment concerns, as it merely prohibited trespassing, although the penalties for violation were substantially greater than under the general trespass law.
Last week the Tenth Circuit reversed and remanded the case for further proceedings, including the proper standard of review and a decision on he merits. The appellate court held the act of collecting information on public lands was protected by the First Amendment, because obtaining information is a necessary prerequisite to disseminating it. It relied on several cases holding that the First Amendment protects the recording of public officials’ public conduct.
The Tenth Circuit recognized that not all regulations that incidentally restrict collection or dissemination of information necessarily implicate the First Amendment. For example, the Supreme Court has upheld restrictions on the right to travel to Cuba even though that would interfere with the acquisition of information about the island. The Court suggested that the application of Wyoming’s general trespass statute to trespassers in search of information might not implicate the First Amendment. But the substantially higher penalties in the ag-gag law did.
The appellants in Wyoming did not appeal from the ruling that trespassing with the purpose or effect of collecting information satisfied the First Amendment, so those parts of the statute will remain in effect. The Ninth Circuit has not yet ruled on the successful challenge to Idaho‘s ag-gag law nor the Fourth Circuit on the unsuccessful challenge to North Carolina’s law.
Given the number of these statutes and the inconsistent results reached by the lower courts to date, a successful cert. petition may be in the works.
For years, animal rights activists have employed various subterfuges to gain access to animal facilities to film or video animal abuses. For example, a reporter will apply for a job at an animal facility and use his/her I-phone to record mistreatment of animals. The adverse publicity generated by these undercover activities has cost many entities millions of dollars and resulted in some bankruptcies.
Several states have enacted so-called “ag gag” laws that attempt in one way or another to limit these underground efforts. These laws typically prohibit film or video of animal or research facilities. Others prohibit submitting a false employment application as a means of gaining access to such facilities. These laws have met with varying results in court.
Idaho was the first state to enact a modern ag gag law in 2014, following release of a video demonstrating animal abuse at a dairy. The statute creates a new crime: interference with agricultural production. Such interference consists of:
Violation is a felony punishable by a year in jail. In addition, the statute provides a private right of action to recover twice the economic injury sustained by the facility.
The Animal Legal Defense Fund sued to enjoin the statute, arguing that it violated both the First Amendment and equal protection. The District Court agreed with both arguments. It rejected the State’s argument that the First Amendment does not protect false statements. The correct rule, the Court held, is that it does not protect false statements that cause legally cognizable harm. Here, false statements to obtain employment or access do not cause material harm. Disclosure of animal mistreatment may cause material harm, but that is not the direct product of the alleged misrepresentations. The false statements actually serve First Amendment values by exposing misconduct and fostering public debate. Continue Reading “Ag Gag” Laws
In a split decision announced earlier today (Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146, slip op. (June 23, 2014)) the United States Supreme Court ruled the Environmental Protection Agency exceeded its authority in requiring sources of air pollution to comply with the Clean Air Act’s prevention of significant deterioration (PSD) and Title V major source permitting programs solely because of a source’s greenhouse gas emissions. Further, the Court held that EPA is permitted to include greenhouse gas emissions in determining best available control technology (BACT) for sources that would be subject to PSD on the basis of emissions other than greenhouse gas emissions is a permissible interpretation of the Act.
The Court ruled that its earlier decision (Massachusetts v. EPA, 549 U.S. 497 (2007)), holding that the Clean Air Act’s definition of “air pollution” includes greenhouse gas emissions for general Act-wide purposes, does not compel EPA to change its long standing interpretation of that term for purposes of specific programs required under the Act. Nor does the Act permit the EPA to include greenhouse gas emissions in the PSD and Title permitting programs. The Court noted that the PSD and Title V programs were designed by Congress to apply to a limited number of larger sources of air pollution and that EPA’s greenhouse gas interpretations constitute an attempted expansion of the agency’s authority without clear congressional authorization. Furthermore, EPA’s attempt to “tailor” the statutory thresholds that apply to the permitting programs was unauthorized as executive agencies are required to give effect to the clearly expressed will of Congress.
This decision is limited to two specific permitting programs. The impact of the decision on additional attempts to regulate greenhouse gas emissions under other Clean Air Act programs is, for the moment, uncertain. What is certain, however, is that the interplay between the Supreme Court’s Massachusetts and UARG decisions will continue to spark further litigation and discussion of the limits of EPA’s authority to regulate greenhouse gas emissions from stationary sources.