“Justice” Jackson and Commercial Speech – Where Will She Stand?

By Chris Oswald and David Buzby

The nomination of Judge Ketanji Brown Jackson to serve on the U.S. Supreme Court appears headed toward a Senate vote, with nothing appearing to stand in the way of her confirmation as the first Black woman on the Nation’s highest court.  

In her confirmation hearing, little light was shed on what her service on the Court might mean for our industry. But then, commercial speech issues around advertising and marketing rarely come up in Supreme Court confirmation hearings. Sometimes broader First Amendment issues are discussed, as we saw when Senator Chuck Grassley (R-IA) asked Judge Jackson about the First Amendment rights of protesters. In addition, Senator Mike Lee (R-UT) asked a question about Section 230 and whether platforms can be required not to discriminate based on content (in response, Judge Jackson reaffirmed that the right to speak freely is a constitutional right, but would not comment on particular legislation). Senator Amy Klobuchar (D-MN) inquired about antitrust issues and technology company concentration; avoiding comment on particular legislation, Judge Jackson noted that antitrust law protects both consumers and the marketplace.  

But a recent case over which she presided may offer some hints. In her answers to a questionnaire from the Senate Judiciary Committee before her hearing, she identified a commercial speech case as one of the ten most significant cases over which she presided as a lower federal court judge.That case (American Meat Institute v. U.S. Department of Agriculture, 968 F. Supp. 2d 38 (D.D.C. 2013)) involved a USDA regulation requiring country of origin labeling (“COOL”) at point of sale indicating where the meat originated and was processed. The American Meat Institute sought a preliminary injunction to stop the rule, contending (among other issues) that the requirement violated the First Amendment by compelling speech.  

In most cases involving commercial speech, the U.S. Supreme Court’s test in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), applies. In order to be constitutionally permissible, governmental speech regulations must “directly advance” a “substantial” government interest and be “no more extensive than necessary” to meet that interest.  However, where the government seeks to regulate “purely factual and uncontroversial” commercial speech, the Supreme Court in a later case (Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)) held that a governmental regulation on speech only needed to be “reasonably related” to preventing deception of consumers. The First Amendment question involved in the American Meat case related to the level of scrutiny to be applied. In finding for the USDA, Judge Jackson employed the less rigorous Zauderer standard; she determined that the government had sufficiently tied the regulation to preventing consumer confusion and therefore the plaintiff’s constitutional arguments were unlikely to succeed. The Court of Appeals for the D.C. Circuit eventually agreed with her ruling, finding there was no reason for the information not to be disclosed on the label.

Whether this case signifies that a Justice Jackson will endorse commercial speech receiving less constitutional protection or it is merely her reasoning in one decision remains to be seen – and this is a complex area of the law. Since the U.S. Supreme Court’s decision in the Central Hudson case, commercial speech has received a very specific level of constitutional protection – not as broad as that given to political speech, but higher than other types of speech.  ANA has long sought to protect this right for our members – and will continue to do so.

Chris Oswald is Executive Vice President & Head of Government Relations for ANA. David Buzby is Senior Director, Government Relations for ANA.