Digesting an opinion by The Honorable Sandra Segal Ikuta, U.S. Court of Appeals for the Ninth Circuit (Judge Ikuta had no role in WLF’s selecting or editing this opinion for this publication). Judge Ikuta was confirmed to the Ninth Circuit on June 19, 2006.

U.S. Court of Appeals for the Ninth Circuit, Case No. 16-16072

Introduction to the Opinion: A San Francisco ordinance required that all outdoor advertisements for sugar-sweetened beverages display the warning that “Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay,” so that it occupies at least 20% of the ad space. On January 31, 2019, an 11-judge en banc panel of the court, per Judge Graber, unanimously held that the ordinance violates the First Amendment. In her separate concurrence, digested below, Judge Ikuta details the majority’s failure to properly apply a 2018 U.S. Supreme Court precedent and offers a compelling alternative analysis that deserves a wide audience.

IKUTA, Circuit Judge, dissenting from most of the reasoning, concurring in the result:

In National Institute of Family & Life Advocates v. Becerra (NIFLA), the Supreme Court provided a framework for analyzing First Amendment challenges to government-compelled speech. 138 S.Ct. 2361 (2018). Under this framework, a government regulation that compels a disclosure (like the San Francisco ordinance in this case) is a content-based regulation of speech, which is subject to heightened scrutiny under the First Amendment unless the Zauderer exception applies. The majority fails to follow this analytical framework and makes several crucial errors. I therefore dissent.


NIFLA broke new ground on several key issues. Although the Court has previously considered the constitutionality of government regulations requiring lawyers to disclose certain information in their advertisements, see Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 650–51 (1985); see also Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 250–52 (2010); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 457–59 (1978), NIFLA is the first Supreme Court case to apply Zauderer to commercial speech more generally.

NIFLA considered the constitutionality of a California statute that required [licensed and unlicensed] clinics that primarily served pregnant women to post government-drafted notices. NIFLA, 138 S.Ct. at 2368. ***

NIFLA began by making two important contributions to First Amendment jurisprudence. First, in its consideration of the two government disclosure requirements, NIFLA established, for the first time, that government-compelled speech is a content-based regulation of speech. The Court explained that “[b]y compelling individuals to speak a particular message,” the licensed notices “alter[ed] the content of [their] speech” and thus were content-based regulations. Id. at 2371. Such content-based regulations “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Id.