Cross-posted by on WLF contributor site

Imagine a law requiring cupcake shops to display a large sign near their cupcake display informing their sweet-toothed customers: “Eating Cupcakes Can Lead to Obesity and Diabetes.  Stop Eating Cupcakes Today.”  Or a law requiring car dealers to display the following sign in their showrooms:  “Automobile accidents kill over 35,000 people each year.  Stop Driving Cars Today.”

However well-intentioned such a law might be, the notion of forcing retailers to actively participate in encouraging their customers not to purchase their own products seems not only unfair, but unthinkable.  Given the importance the Supreme Court has placed on the First Amendment right to speak and to refrain from speaking, it would be surprising for the Government to attempt to uphold and enforce such a law.  But that’s precisely what New York City is asking the U.S. Court of Appeals for the Second Circuit to do in the case of 23-34 94th St. Grocery, Corp. v. New York City Board of Health.

The case involves a challenge to a new provision of the New York City Health Code that requires all tobacco retailers within the City to display gory, anti-smoking signs in their stores.  Many tobacco retailers understandably object to the signs, which urge their customers not to use tobacco products.  Each sign includes warnings about the adverse effects of tobacco use (e.g., “Smoking Causes Lung Cancer”) and the directive “Quit Smoking Today—For Help, Call 311 Or 1-866-NYQUITS,” as well as one of three graphic, color images depicting the potential effects of tobacco use:  a brain-damaged by a stroke, decaying teeth and gums, or a diseased lung.

The U.S District Court for the Southern District of New York struck down the requirement under the Supremacy Clause as preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-1341, and that holding is currently on appeal.  But the First Amendment implications of the case are even more astonishing.

Attorneys representing New York City claim that the warnings constitute “government speech,” which is exempted altogether from First Amendment scrutiny.  But if the “government speech” doctrine is really as broad as the City claims it to be, then governments everywhere have been given an easily followed roadmap to defeat any and all compelled speech claims.  If the government wishes to convey a message, it should do so on its own property, not by commandeering the private property of others who disagree with that message.

WLF’s Legal Studies Division recently published two papers focusing on graphic health warnings and compelled government speech: