Federal Regulators Shove First Amendment Down Slippery Slope With School Ad Ban Proposal

May 6 2014, 12:13pm CDT | by

Think of the children!

That phrase is a “tried-and-true debate stopper,” ethicist Jack Marshall writes, “because of its ability to inhibit rational thought.” It’s no wonder, then, that professional activists and government regulators often cloak actions which might otherwise be highly questionable (and unconstitutional) in the appealing mantle of safeguarding America’s youth.

For instance, government routinely invokes protection of children as a justification for restricting commercial speech. Three years ago, a triumvirate of federal agencies tried to limit kids’ exposure to food and beverage ads through an informal guidance document. Thankfully, that effort fell flat. But Washington’s appetite for limiting “disfavored” speech—in the interest of those ubiquitous children—is never sated, as a recently proposed U.S. Department of Agriculture (USDA) regulation reminds us.

The February 26 proposal dictates how local education agencies (i.e. school boards) are to devise “local school wellness policies.” The USDA Secretary, joined by First Lady Michelle Obama, announced the rule at a White House event and proudly touted the proposal’s unprecedented prohibition of advertising for selected foods and beverages on school property. That part of the proposal violates the First Amendment, a conclusion which WLF shared with USDA last week in its formal comments to the agency.

USDA asserts that its actions are necessary to improve child nutrition. The proposal advances that interest in several ways that are not constitutionally suspect. It requires that school boards end the sale of “competitive foods” (i.e. products that are not covered by subsidized school lunch programs) which fail to meet federal “Smart Snacks” guidelines (these flowcharts show what is “Smart”). The proposal also stresses the importance of “nutrition promotion” and encourages both private advertising for “Smart Snacks” and school education efforts such as integrating nutritional messages into classes (mandatory reading of “Ten Apples Up On Top” in math, perhaps) and posting of inspirational signage in dining areas (maybe “ Kale is for Kids!” or “Chia Pet Says: ‘Eat Chia Seeds!’”).

But these measures weren’t enough for USDA. The proposal also prohibits marketing of products that don’t measure up to Smart Snacks standards. USDA Secretary Vilsack justified the ban by remarking, “If you can’t sell it, you ought not to be able to market it.” That makes for a nice sound bite, but it’s not a winning constitutional argument. Non-Smart Snacks are not akin to tobacco or alcohol, which minors cannot purchase. Kids can lawfully buy these foods and beverages and bring them to school. So USDA cannot possibly argue that it is banning speech proposing an unlawful transaction, speech which the First Amendment does not protect. The proposal does, however, favor some speech over other speech based on the content of the advertisement. The First Amendment prohibits such discrimination, even for commercial speech. Also, the Supreme Court permits government to limit commercial speech only as a measure of last, not first, resort. USDA, in other words, must determine if its conduct ban (no sales of non-Smart Snacks) meets its nutrition promotion goal first, before it targets speech about “unhealthy” foods.

Why is the federal government risking a constitutional challenge if it’s already pursuing other measures like an in-school ban on disfavored foods and beverages? Perhaps the Obama Administration couldn’t resist another opportunity to establish an anti-commercial speech precedent while also pleasing its brethren in the public health community. The USDA proposal’s section on advertising reads as if it were ghostwritten by professional food activists. It cites “studies” done by such ad-ban proponents as ChangeLab Solutions, Public Citizen, and California Project LEAN. It seems to embrace everything advocated in this Center for Science in the Public Interest document. These organizations’ agendas are not limited to eliminating advertising from public schools. Successful implementation of the USDA proposal will lead to more ambitious speech ban campaigns, ones which an emboldened federal bureaucracy may openly advance.

An uncomplicated, but rather disconcerting, attitude underlies USDA’s proposal and public health activists’ support for it: We know better than you do. The federal government’s broader goal here is stated very plainly in the USDA proposal itself—”enhance and encourage participation in school meal programs.” Why? Because (seven-year-old) research indicates that “school meals are more healthful than what students eat as alternatives to school meals.” The justification for selectively banning food and beverage ads in school essentially boils down to “the ads will inspire unhealthy choices.” For the majority of children who might view “unhealthy” food ads, it’s their parents, not the kids, who do the food shopping. And for the older kids who might be able to make those purchases on their own, the Supreme Court has said very clearly,”the fear that people would make bad decisions if given truthful information cannot justify content-based burdens” on speech.

So when government takes action to influence the American diet, it can, of course, think about the children. But it must also remember the quintessentially American principles of personal responsibility and freedom of speech. We want our children to learn about those too.

 
 

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