Cross-posted at’s WLF contributor site

The U.S. Court of Appeals for the D.C. and Sixth Circuits have issued differing opinions regarding the Food & Drug Administration’s graphic warnings rule for tobacco, making Supreme Court review highly likely. The appropriate amount of First Amendment scrutiny courts should apply when reviewing such compelled speech regulations will be directly at issue.  If the Court agrees, as it should, with the D.C. Circuit’s approach, we hope the Justices take the opportunity to clarify a critical part of the so-called Central Hudson test courts use to examine commercial speech restrictions.

Zauderer or Central Hudson?  If a content-based compelled speech requirement involves “purely factual and uncontroversial” disclosures aimed at preventing consumer deception, the Supreme Court applies a relaxed “reasonableness” standard of review as set forth in Zauderer v. Office of Disciplinary Counsel.  The Sixth Circuit applied Zauderer in its Discount Tobacco City v. U.S. decision upholding the graphic warnings.

In contrast, D.C. Circuit Judge Janice Rogers Brown’s opinion in R.J. Reynolds v. FDA reasoned that the nature of FDA’s mandated warnings required the court to apply the more rigorous First Amendment scrutiny required by Central Hudson Gas & Elec. v. Pub. Serv. Comm’n.  To survive such scrutiny, a commercial speech regulation must “directly and materially advance” a “substantial government interest,” and be no more extensive than necessary in affecting speech.

“Directly and Materially Advancing”.  The linchpin of Judge Brown’s First Amendment analysis of the FDA warnings was the “third prong” of Central Hudson. She assessed whether FDA had provided “substantial evidence” that graphic warnings would “directly” reduce smoking to a “material degree.”  Judge Brown required that FDA show a direct, causal connection between lower tobacco consumption and the proposed graphic warnings.  She found that “FDA has not provided even a shred of evidence” that such warnings directly advance smoking cessation or reduction.  Under the third Central Hudson prong, she explained, data which are merely “suggestive” of a causal connection amount to “mere speculation and conjecture,” and thus are insufficient to justify compelled speech.

Such a demanding approach to the “advancing” part of Central Hudson is in stark contrast to Judge Rogers’s view of this prong in her dissent.  “History, consensus, and ‘simple common sense'” are enough, according to Judge Rogers, to find that FDA’s warnings constitutionally advance the government’s interest.  In a 2010 opinion, Educational Media Co. v. Swecker, the U.S. Court of Appeals for the Fourth Circuit relied on this same language to find that a Virginia rule restricting alcohol ads in college newspapers was constitutional.  Much to the chagrin of WLF and others (including the state’s ACLU chapter), the Supreme Court declined to review the decision.

This highly deferential perspective on Central Hudson’s “directly and materially advancing” language regretfully has its origins in Supreme Court speech jurisprudence. Having found that a Florida Bar regulation satisfied Central Hudson’s second prong in Florida Bar v. Went For It, Justice O’Connor responded to Justice Kennedy’s dissent by noting that the Court has permitted litigants, “in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and ‘simple common sense’.”  That “pure speech” case, Burson v. Freeman, was a 5-4 decision.  Although Justice Scalia concurred to provide the crucial fifth vote, he did not embrace the majority’s approach to upholding a state restriction on speech around polling places.

Justice O’Connor cited her own Went for It language again in 2001’s Lorilard v. Reilly, where she found that advertising restrictions passed muster under Central Hudson‘s “advancing” prong, but failed the third prong due to its overbreadth.  Justice Kennedy concurred in the result but explicitly disagreed with Justice O’Connor’s peculiar application of Central Hudson‘s second prong.

Other Supreme Court commercial speech opinions, however, don’t take Justice O’Connor’s permissive approach to evaluating “direct and material” advancement of the government’s interest.  Justice Thomas’s 1995 Rubin v. Coors opinion (released just two months before Went for It) stressed that Central Hudson‘s second prong required much more than “mere speculation and conjecture.” Justice Stevens’s 1996 44 Liquormart v. Rhode Island opinion agreed that “common sense” may well support the notion that less advertising will reduce alcohol consumption (the state’s interest).  But he went on to emphasize that without any findings of fact, Rhode Island couldn’t prove its ad ban would significantly advance its interest.  Justice Stevens’s 1999 Greater New Orleans Broadcasting v. U.S. opinion similarly rejected the government’s attempt to justify a speech restriction based on mere common sense notions.

Clarification Needed. The Court’s two most recent commercial speech-related opinions, Sorrell v. IMS Health and Thompson v. Western States, neither elaborated on nor relied upon the “direct and material advancement” prong of Central Hudson.  If the Court decides to resolve the split between the D.C. and Sixth Circuits on the tobacco warnings, it may have an ideal opportunity to clarify the meaning of that critical part of its commercial speech test. Rather than simply continue to ignore Justice O’Connor’s Went for It and Lorilard statements on the third prong, the Court should explicitly reject those views and speak as clearly and firmly on “direct and material advancement” as Judge Brown did in her R.J. Reynolds opinion.