“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – The First Amendment to the U.S. Constitution
The First Amendment to the United States Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press.” This language restricts the government’s ability to limit the speech of citizens. However, the prohibition is not absolute. Over time, the courts have found that the government has the authority to prohibit or restrict certain types of speech. These restrictions can be based either on the content of the speech or on the location where the speech takes place. Laws affecting agriculture are subject to the same free speech parameters as any other industry, so it is important to have a working knowledge of both the freedoms and restrictions that accompany the First Amendment.
Unprotected Speech
The United States Supreme Court (“USSC”) has identified categories of speech that are not protected by the First Amendment and may be prohibited entirely. Those categories are obscenity, defamation, fraud, incitement, fighting words, true threats, speech integral to criminal conduct, and child pornography.
In 2010, the USSC considered a case that would have added another category of speech excluded from First Amendment protection. This case considered whether depictions (videos, pictures, recordings) of animal cruelty should be protected. The court, in U.S. v. Stevens, ruled that these depictions were within the scope of the First Amendment, and thus entitled to its protections.
Protected Speech
The First Amendment protects almost all types of speech from being regulated by the government. The government is considered to be federal, state, and local officials and public schools and public employers. The First Amendment does not protect speech from being regulated by private citizens or entities. For example, this means that private corporations or schools can punish employees or students for their speech.
When the government regulates speech, specific judicial standards apply to determine if the type of speech being restricted is allowed under the First Amendment. The standard that applies to the law depends upon the type of speech being restricted, which can be broken up into different categories. This blog post focuses on four: content-based restrictions, content-neutral restrictions, commercial speech, and government speech.
Content-Based Restrictions
The First Amendment requires that laws regulating speech be content and viewpoint neutral. Content and viewpoint neutral refer to laws that apply to speech without regard to the substance or message of the speech. Content-neutral restrictions are explored more below. Laws that target speech based on content or viewpoint are presumptively unconstitutional and may be justified only if they pass strict scrutiny. Strict scrutiny is a legal test that requires the government to prove that the law at issue is narrowly tailored to serve compelling state interests. Courts are likely to strike down laws that discriminate based on what is said or expressed.
An example in an agricultural context includes so-called “ag-gag” laws. The term “ag-gag” refers to laws that restrict free speech in agricultural facilities. While ag-gag laws vary in structure and specificity, they typically criminalize undercover investigations of any agricultural operations, such as dairy, poultry, and pork farms. Ag-gag laws focus on preventing dishonesty in the job-application process and photographing or videotaping agricultural facilities. “Ag-gag” laws are vulnerable to attack as content-based restrictions because they specifically censor speech that arises in an agricultural context.
The recent decision in Animal Legal Defense Fund v. Reynolds highlights content-based restrictions. The case centered on an Iowa law that attempted to prohibit undercover investigations in agricultural facilities by criminalizing the use of “deception” to gain access to an agricultural facility. The plaintiffs argued that the law violated the First Amendment by singling out specific individuals for punishment based on their disfavored viewpoint of agricultural facilities. Because of the content-based restrictions, strict scrutiny was applied. The court agreed with the plaintiffs and held that the State of Iowa could not single out individuals for special punishment based on their critical viewpoint of agricultural practices.
The law failed the strict scrutiny standard because it was not narrowly tailored to the stated purpose of protecting private property rights, proprietary information, and biosecurity from someone who might want to harm the facility. The court found that the law would also implicate persons who had lied to gain access to an agricultural facility, for example, by lying about their abilities on a job application, but who had no intent to harm the agricultural facility. Because the court found that the law did not satisfy strict scrutiny, the law was found to be unconstitutional and in violation of the First Amendment. For a more in-depth look at various states’ ag-gag laws and recent legal developments, check out “Ag-gag” Laws: An Update of Recent Legal Developments, available here.
Content Neutral Restrictions
Suppose the government limits speech, but its purpose in doing so is not based on the content of the speech. In that case, the limitation on speech could still potentially violate the First Amendment, but it is less likely than a content-based restriction to do so. Content-neutral regulations include time, place, and manner restrictions. These time, place, and manner restrictions are constitutional because they do not limit any particular type of speech but instead regulate the circumstances under which the speech may take place. These types of laws include imposing limits on the noise level of speech, restricting the size or placement of signs on government property, and capping the number of protestors who can be in a particular location.
For content-neutral restrictions, the USSC does not apply the strict scrutiny standard of judicial review. Instead, the USSC has created a separate test for surviving a First Amendment challenge. The law must regulate speech without reference to the speech’s substance, be narrowly tailored, and leave open alternative avenues of expression. The narrowly tailored requirement is satisfied for content-neutral laws as long as the law promotes a substantial government interest that, without the law, would not be achieved as effectively.
In Animal Legal Defense Fund v. Herbert, Utah attempted to defend its ag-gag law provision that criminalized the recording of agricultural operations. The state argued that the law did not restrict what was said but rather where it was said. If that had been the case, the law would have been considered a permissible content-neutral, location-based restriction. A location-based restriction would fall into the time, place, and manner type of restrictions and could potentially pass the content-neutral test. However, the court held that the action the ag-gag law criminalized was recording an image “of” rather than “at” an agricultural facility. This distinction led the court to hold that the law was content-based as opposed to location-based, which required the higher judicial review of strict scrutiny to be applied.
Commercial Speech
Commercial speech is speech that “proposes a commercial transaction.” The most typical example of commercial speech is an advertisement. However, other speech related to commercial transactions may be regulated as commercial speech. For example, food labels are generally considered commercial speech.
Commercial speech may be banned if it is false or misleading or advertises an illegal product or service. Even if the commercial speech does not fit into one of these categories, the USSC has created the Central Hudson test that allows the regulation of commercial speech in certain situations. The government may regulate it if the regulation directly advances the governmental interest and if the regulation is narrowly tailored for that government interest.
In an agricultural context, the regulation of food labels has been challenged by various food companies alleging that regulations were in violation of the First Amendment. To determine whether the government could regulate a company’s food labels, the USSC has two tests that are applied depending on whether the regulation is a limitation or a requirement. For a more in-depth look at food labeling issues see Focus on Food: Understanding Labeling and the First Amendment, found here.
Government Speech
Under the government speech doctrine, the government has its own rights as a speaker to be immune from First Amendment free speech challenges. It can assert its own ideas and messages without being subject to First Amendment claims of viewpoint discrimination. The government speech doctrine has been used by the USSC to reject First Amendment-based challenges to government programs, such as agricultural check-off programs.
Check-off programs have come under constitutional scrutiny due to allegations that the programs violate the First Amendment. Check-off programs are created by the government and require producers to fund the research and promotion of various agricultural products. Challengers claim that check-off programs, which fund generic advertisements created by the government such as “Got Milk?” and “Beef: It’s What’s For Dinner,” require subsidizing speech from private producers who might disagree with the message. For a check-off program to be considered constitutional governmental speech, the USSC has held that the government must exercise sufficient control over the content of the check-off, and the check-off program must be associated with a governmental purpose. For a more thorough discussion on First Amendment challenges to check-off programs, see Legal Checkup on Checkoffs: R-CALF in the Ninth Circuit, available here.
Conclusion
Laws that implicate the First Amendment are subject to high levels of legal and judicial scrutiny. In many cases, they end up being ruled unconstitutional. Agricultural laws are not immune from First Amendment-based challenges when it comes to ag-gag, food labeling, and check-off programs.
To view more about recent ag-gag laws, click here.
To read more about food labels and the First Amendment, click here.
To learn more about check-off programs, click here.