Federal Regulators Shove Very first Amendment Down Slippery Slope With College Ad Ban Proposal

Consider of the kids!

That phrase is a “tried-and-correct debate stopper,” ethicist Jack Marshall writes, “because of its ability to inhibit rational considered.” It is no wonder, then, that skilled activists and government regulators usually cloak actions which may well otherwise be highly questionable (and unconstitutional) in the attractive mantle of safeguarding America’s youth.

For instance, government routinely invokes safety of youngsters as a justification for restricting industrial speech. Three many years in the past, a triumvirate of federal companies experimented with to limit kids’ publicity to foods and beverage advertisements by way of an informal guidance document. Fortunately, that work fell flat. But Washington’s appetite for limiting “disfavored” speech—in the curiosity of those ubiquitous children—is in no way sated, as a lately proposed U.S. Department of Agriculture (USDA) regulation reminds us.

The February 26 proposal dictates how nearby schooling companies (i.e. college boards) are to devise “local college wellness policies.” The USDA Secretary, joined by First Lady Michelle Obama, announced the rule at a White Property event and proudly touted the proposal’s unprecedented prohibition of advertising for picked food items and beverages on college house. That portion of the proposal violates the Very first Amendment, a conclusion which WLF shared with USDA last week in its formal remarks to the agency.

USDA asserts that its actions are required to boost little one nutrition. The proposal advances that interest in a number of ways that are not constitutionally suspect. It demands that school boards end the sale of “competitive foods” (i.e. items that are not covered by subsidized college lunch applications) which fail to meet federal “Smart Snacks” guidelines (these flowcharts demonstrate what is “Smart”). The proposal also stresses the significance of “nutrition promotion” and encourages the two private marketing for “Smart Snacks” and college training efforts such as integrating dietary messages into classes (necessary reading through of “Ten Apples Up On Top” in math, probably) and posting of inspirational signage in dining regions (possibly “ Kale is for Kids!” or “Chia Pet Says: ‘Eat Chia Seeds!’”).

USDA emblem (Photograph credit: Wikipedia)

But these measures weren’t enough for USDA. The proposal also prohibits marketing and advertising of items that do not measure up to Intelligent Snacks requirements. USDA Secretary Vilsack justified the ban by remarking, “If you cannot promote it, you ought not to be able to market place it.” That makes for a wonderful sound bite, but it’s not a winning constitutional argument. Non-Wise Snacks are not akin to tobacco or alcohol, which minors can’t buy. Little ones can lawfully get these food items and drinks and carry them to college. So USDA can’t potentially argue that it is banning speech proposing an unlawful transaction, speech which the First Amendment does not defend. The proposal does, nonetheless, favor some speech more than other speech based mostly on the articles of the advertisement. The First Amendment prohibits this kind of discrimination, even for commercial speech. Also, the Supreme Court permits government to restrict business speech only as a measure of last, not 1st, resort. USDA, in other phrases, should figure out if its carry out ban (no income of non-Smart Snacks) meets its nutrition promotion objective first, before it targets speech about “unhealthy” meals.

Federal Regulators Shove Very first Amendment Down Slippery Slope With College Ad Ban Proposal