On the Circuit

State Can't Compel Dairies To Disclose Use of Hormone, Second Circuit Rules
By Richard T. Kaplar

In a preliminary ruling, the U.S. Court of Appeals for the Second Circuit has told the State of Vermont it cannot compel dairy producers to inform consumers about the use of a synthetic growth hormone in cows.
The court's action Aug. 8 effectively bars enforcement of a Vermont labeling statute -- at least for the moment. Compelling dairy manufacturers to speak against their will would cause irreparable harm to their First Amendment rights, the court held.
The Second Circuit reversed and remanded a district court decision denying the injunction sought by several dairy and food trade associations (International Dairy Foods Association v. Amestoy). To grant such injunctive relief, the court had to find both irreparable harm to the plaintiffs and a likelihood that the plaintiffs would prevail on the merits of their First Amendment claim.
Citing the constitutional right not to speak articulated in Wooley and Barnette, the court found irreparable harm because the labeling statute "requires appellants to make an involuntary statement whenever they offer their products for sale."
At issue: whether the mandated product labeling comprised purely commercial speech (as Vermont and the district court contended) or elements of commercial and non-commercial speech (as the dairy manufacturers argued). In the former case, the less-strict Central Hudson test would apply.

International Dairy Foods Association, et al. v. Jeffrey L. Amestoy, et al., 898 F. Supp. 246 (D. Vt. 1995), No. 95-7819(2d Cir. 1996).
Wooley v. Maynard, 430 U.S. 705 (1977).
West Virginia Board. of Education. v. Barneffe, 319 U.S. 624 (1943).
Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557 (1980).
Paulsen v. County of Nassau, 925 F.2d 65 (2d Cir. 1991).

The Second Circuit chose not to resolve this question. "[E]ven assuming that the compelled disclosure is purely commercial speech, appellants have amply demonstrated that the First Amendment is sufficiently implicated to cause irreparable harm," the court held.
Why? "Because compelled speech contravene[s] core First Amendment values," the court said, citing Paulsen. Thus, the Second Circuit appears to be saying that commercial speech, if compelled, must be held to the strict Wooley/Barnette standard for non-commercial speech.
In assessing the likely success of the plaintiff's case on its merits, the court again dodged the commercial/non-commercial question and merely relied on the less-strict Central Hudson standard.
The Court found that Vermont failed the second prong of the four part Central Hudson test by failing to assert a substantial interest. Vermont had claimed "strong consumer interest and the public's 'right to know."' But as the court pointed out. "mere consumer concern is not, in itself, a substantial interest."
Because Vermont failed to meet the Central Hudson test, the court concluded the milk producers' case would likely succeed on its merits at trial. This finding, coupled with the finding of irreparable harm to the plaintiffs, permitted the court to reverse and remand, effectively granting injunctive relief.
In a spirited dissent, Judge Leval argued that the state's interest was in fact substantial, and that the dairy producers were attempting to withhold facts from consumers contrary to the informational value of commercial speech to the listener.
Thus, the Second Circuit's decision presents an interesting compelled-speech paradox: The majority opinion rejects compelled speech, even if commercial in nature, as contravening the First Amendment right of a speaker to remain silent; Judge Leval's dissent, on the other hand, embraces compelled commercial speech as furthering the right of the listener to receive information.