Kavanaugh and Commercial Speech

Following one of the most bruising series of hearings in recent memory, the United States Senate confirmed Associate Justice Brett Kavanaugh to the Supreme Court on Saturday, October 6. Justice Kavanaugh was confirmed in a final Senate vote of 50-48, mostly along party lines, making for one of the slimmest approval margins ever for a Supreme Court Justice.

While the fall-out from the rancorous hearings will likely ripple-forward in expected and unexpected ways, one thing is for certain – Associate Justice Kavanaugh, just 53 years old, has decades ahead of him to shape the direction of our nation’s most powerful judicial body. A more important consideration for the advertising and marketing community – what can we expect to see from our newest Associate Justice on the topic of commercial speech? While his record of opinions is not extensive enough to draw a clear conclusion, it does suggest that Justice Kavanaugh will be inclined to side with the government, but not to extremes.

Prior to his confirmation to the Supreme Court, Kavanaugh spent twelve years on the United States Court of Appeals, District of Columbia. It’s probably no surprise to learn that despite its rather small geographic area of coverage, the D.C. Court of Appeals punches far above its weight in terms of importance – it tends to make the final rulings in cases involving the power of U.S. regulatory agencies. (The D.C. Court of Appeals also has a reputation as a de-facto breeding ground for Supreme Court Justices – current Justices Roberts, Thomas and Ginsburg are all alumni). It’s in this context that we can see perhaps Kavanaugh’s most important ruling on commercial speech to date, in American Meat Institute vs. U.S. Department of Agriculture.

The facts of American Meat Instituteare fairly straight-forward. A group of livestock owners, feedlot operators and meat packers challenged the USDA’s authority to require them to include country-of-origin labels on their products because it amounted to “compelled speech” in violation of a previous Supreme Court ruling,Zauderer vs. Office of Disciplinarian Counsel of the Ohio Supreme Court. (While the Central Hudsontest is more well-known when it comes to evaluating the permissiveness of commercial speech, Central Hudsonis sometimes thought to be more applicable to evaluating restrictions on commercial speech, while Zaudereris more often thought to be applicable to the narrower issue of compelled speech. There’s clearly overlap between the two decisions, and they’re often interpreted differently by different jurisdictions, and used in tandem.)

In Zauderer, the Supreme Court had reasoned that compelled speech was allowable, as long as it advanced the State’s interest in preventing the deception of consumers, and if the compelled speech was factual and uncontroversial. In American Meat Institute, the plaintiffs contended that requiring country-of-origin labeling was compelled speech that did not satisfy the Zauderertest.

In American Meat Institute,the D.C. Court of Appeals found that the mandatory country-of-origin labeling requirement was justified because there was a permissible regulatory goal in the form of the USDA’s interest in ensuring consumers could make informed purchases, particularly in the context of a spate of food-borne illnesses that had recently taken place. Many court watchers argued that this ruling greatly expanded the scope of Zauderer(and weakened protections against compelled commercial speech) by going beyond the deception standard, to one of allowing compelled speech for any government purpose as long as the compelled speech was “factual and uncontroversial.”

In his concurring opinion on American Meat Institute, Kavanaugh concluded that while the USDA could not advance a “traditional anti-deception, health or safety interest” in this case, the country-of-origin labeling requirement was still permissible, because of the “Government’s historically rooted interest in supporting American manufacturers, farmers and ranchers as they compete with foreign manufacturers, farmers and ranchers.”

In other words, Kavanaugh’s ruling in American Meat Institute suggests that a regulatory agency’s ability to compel speech could be predicated on a general “economic interest” beyond the Zaudererstandard of requiring that compelled speech be to prevent consumer deception in addition to the compelled speech being factual and uncontroversial– not exactly a comforting thought to commercial speech rights advocates.

However, Kavanaugh did go on to state that “the First Amendment protects commercial speech,” and also interpreted Zaudereras denying Government “a free pass to spread their preferred messages on the backs of others.” So whether or not Kavanaugh’s concurring opinion in American Meat Institute turns out to be an aberration remains to be seen – at this point, there really isn’t enough of a record of Kavanaugh’s views on commercial speech to draw any concrete conclusions.

It’s unlikely the October Term of the Supreme Court will shed much light on Kavanaugh’s views on commercial speech, – of the 33 cases currently scheduled for argument, none really touch directly on commercial speech.  But what will potentially develop is an inkling into Kavanaugh’s views on governmental powers, and how these insights might be applied to protections for commercial speech. It should make for an interesting show.