Don't buy my product!

Can the government force the seller of a perfectly legal product to discourage the public from buying that product - in the seller's own advertising and at the seller's own expense? That is the question the 9th U.S. Circuit Court of Appeals will take up at oral argument Monday in American Beverage Association v. City and County of San Francisco.

The case arises from a constitutional challenge to San Francisco Ordinance No. 100-15, which (subject to certain limited exceptions) mandates that "any advertisement" for sugar-sweetened beverages displayed within San Francisco must devote at least 20 percent of the advertisement's space to displaying the following message: "WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco."

Because the First Amendment protects not only the right to speak, but also the right not to speak, beverage manufacturers challenged the city's ordinance on First Amendment grounds, asserting that the mandated warning violates their free speech rights by compelling them to convey and subsidize speech that they do not wish to make and that they do not believe is true.

Emphasizing that the challengers' First Amendment claim focused primarily on infringement of commercial speech rights, the federal trial court mistakenly applied a highly deferential standard of review to uphold the ordinance. But the U.S. Supreme Court has long recognized that the economic motivation of speech, standing alone, does not render it less-protected speech, and that some "of our most valued forms of fully protected speech are uttered for profit." On appeal, the 9th Circuit now has a chance to get it right.

No one disputes that state and local governments may adopt broadly applicable laws that require sellers to disclose purely factual, uncontroversial information about their goods and services so that consumers are not misled by a seller's advertisements. But settled First Amendment precedent also makes clear that the government's interest in compelling such disclosures is at its nadir when the targeted advertisements are neither fraudulent nor misleading.

Here, the warning required by the ordinance cannot plausibly be viewed as information designed to prevent consumer deception. When Gatorade invites you to "quench your thirst," it really means it. And when Coca-Cola invites you to "share a Coke," it isn't lying. Indeed, San Francisco does not even allege that the targeted advertisements are deceptive or misleading in any way.

What's more, the information contained in the mandated warning is not even true, because there is no scientific evidence that occasional consumption of sugar-sweetened beverages in moderation causes obesity, diabetes or tooth decay. Of course, everyone understands that drinking an excessive amount of sugar-sweetened beverages can increase one's risk of poor health, just as can consuming excessive amounts of any food containing sugar (or for that matter, consuming excess calories period). But the city's mandated warning implies that any consumption of sugar-sweetened beverages is dangerous, and (by singling them out) that consuming the sugar found in sugar-sweetened beverages somehow poses greater health risks than the sugar found in any other food.

Far from preventing deception, then, the warning is itself misleading. So however well intentioned it is, the mandated warning does not contain the kind of "purely factual, uncontroversial information" that the Supreme Court has upheld under the First Amendment solely to prevent consumer deception. Simply put, the government has no legitimate interest in compelling commercial speakers to utter misleading speech.

Nor can the ordinance's First Amendment deficiencies be salvaged by adding "This is a message from the City and County of San Francisco" to the end of the mandated warning. If merely adding the government's imprimatur on otherwise compulsory speech sufficed to satisfy the First Amendment, then little would remain of the Supreme Court's longstanding prohibition against the government's requiring citizens to "use their private property as a 'mobile billboard' for the State's ideological message."

Here, it is all well and good that the city wants consumers to know that the words contained in the mandated warning were chosen by the government, but that admission does not entitle the city to force beverage sellers to both convey and subsidize the government's message.

Of course, the city is perfectly free to convey its "don't-drink-sugar-sweetened-beverages" viewpoint on its own property, at its own expense. But the First Amendment does not permit the city to regulate others' truthful commercial speech based on little more than the bare desire to vilify a popular product - not even for the paternalistic purpose of preventing consumers from making "bad decisions."

Let's hope that the 9th Circuit judges haven't forgotten that in an open, free-market society, truthful commercial speakers should be free to decide for themselves what not to say, just as consumers are still free to decide what lawful products they wish to consume.