KOALA WINS FIRST AMENDMENT BATTLE

To readers confused by the headline, this article does not concern a fuzzy, cute little koala.  It does concern a student publication at the University of California, San Diego.  The publication found its funding pulled after it ran an article that some folks found offensive.  It recently prevailed in its lawsuit challenging that action.

The Koala is a registered student organization (“RSO”) at the University of California, San Diego (“UCSD”).  It publishes a newspaper featuring art and satirical writing.  In 2015, The Koala published an article satirizing the concept of “safe spaces” on campus.  The article prompted students to file “Bias Incident Report Forms.”

Following the article’s publication, the Associated Students (the campus organization that administers the distribution of student activity fees) received numerous comments and complaints about its offensive language.

In the following days, UCSD released a statement by Chancellor Pradeep Khosla that “strongly denounce[d] [T]he Koala publication and the offensive and hurtful language it cho[se] to publish.” The statement described The Koala as “profoundly repugnant, repulsive, attacking[,] and cruel,” . . . and “call[ed] on all students, faculty, staff[,] and community members to join [the administration] in condemning [The Koala’s] publication and other hurtful acts.”

The Associated Students held a regularly scheduled meeting on the same day the Chancellor issued his statement. The Vice Chancellor of Student Affairs attended the meeting and read Chancellor Khosla’s statement. A member of the Associated Students introduced the Media Act. Consideration of the Media Act was not listed on the Associated Students’ agenda prior to the day of the meeting, but after some discussion and debate, it was approved. The Media Act eliminated the media funds category from the student activity funding available to RSOs.

The Koala filed its lawsuit seeking an injunction to prevent the enforcement of the Media Act.  The trial court dismissed the Koala’s complaint, deciding that UCSD didn’t violate the Koala’s rights, because it withdrew funding for all print media. So in the trial court’s view, the action was content neutral.  This is like the passage in Catch 22 where the pilot Yossarin complains that the enemy is shooting at him, but one of his colleagues says they aren’t shooting at him, they’re shooting at everybody.

The U.S. Eleventh Circuit Appellate Court disagreed.  In deciding in favor of The Koala, the appellate court first considered whether withholding a subsidy was roughly equivalent to imposing a tax. Case law is clear that the First Amendment prohibits imposing a “press only” tax on a publication.  But it’s not so clear on whether a government entity can withhold a subsidy.  The appellate court determined, however, that if the subsidy is withheld as a means to censor offensive speech, it violates the First Amendment just as much as a tax.

The appellate Court also concluded that The Koala adequately pled a First Amendment retaliation claim.  First off, despite the University’s argument that the cut off of funds was some sort of broad based, content neutral policy, the fact is that it applied only to funds for print media.  It was anything but an across the board act.

Second, the timing of the move was just too obvious of a red flag.  Students and administrators almost instantaneously denounced the Koala, and passed the Media Act within days, despite the fact that it wasn’t even originally on the agenda.  Unlike the trial court, the appellate court was unwilling to ignore the obvious cause and effect.

It is apparently human nature to silence speech we don’t like.  Thank goodness for the people who wrote our Constitution who had the wisdom to include a check on that impulse.

IS A TOFU BURGER A BURGER? ARKANSAS SAYS NO

The Tofurky Company filed a federal lawsuit in Arkansas earlier this month asking the court to strike down a recently enacted Arkansas statute that cracks down on the ability of plant based products to market their goods as “hot dogs,” “bacon” or “burgers.”  Tofurky contends the statute violates the First Amendment.

Tofurky develops, produces, markets and sells plant-based food products nationwide, including in Arkansas.  Included in its product offerings are “hot dogs, “ham roast” and “sausage.”  The packaging makes it clear that the products are plant-based, i.e. vegetarian versions of meat products.

Arkansas legislators who have way too much time on their hands are concerned with consumer confusion recently enacted legislation that prohibits sellers of plant-based foods from referring to their products with “meat’ related terms.  The statute explicitly includes the terms “bacon,” “bratwurst” and “sausage.”  If there’s no pork, the product can’t be described with those terms.  And if there’s no beef, the products can’t use terms like “beef jerky,” “hamburger” and “roast.”

Tofurky argues that it has First Amendment rights, and a statute that prohibits it from using specific terms is a clear First Amendment violation.  Arkansas contends, though, that it is entitled to regulate false and misleading commercial speech.  And to an extent, both of them are correct.

One issue that will no doubt be vigorously litigated is whether Tofurky is misleading anyone.  Tofurky points to its own labeling, which explicitly states the products are plant-based.  It is hard to imagine anyone buying a plant based hot dog thinking it was made from a pig, unless they think pigs are grown in the ground.  Tofurky also points out that it is subject to federal regulation from both the Food and Drug Administration and the Federal Trade Commission – both of whom have authority over deceptive labeling.  Tofurky has never been sanctioned by either agency.

Another interesting issue will be which level of scrutiny the court will adopt when assessing the statute.  Traditionally, regulations on commercial speech have been subject to something called “intermediate scrutiny.”   That means the state has to show it has a “substantial” interest in the regulation, that the regulation directly advances that interest and the regulation is no more extensive than necessary to serve that interest.  That is a fairly tough standard, but not nearly as demanding as “strict scrutiny,” which courts typically apply when considering regulations on non-commercial speech.

When courts apply strict scrutiny, the state needs to establish a “compelling interest” and demonstrate that the regulation is narrowly tailored to achieve it.  The distinction may seem subtle, but it’s not.  It is very rare for a regulation to satisfy strict scrutiny, but not so rare to survive intermediate scrutiny.  The U.S. Supreme Court has hinted, however, that commercial speech regulation should be subjected to strict scrutiny, rather than the less stringent intermediate scrutiny.  It will be interesting if the Arkansas Court adopts that approach.

But the consequences for Tofurky are substantial.  The statute establishes a civil penalty of $1000 for each violation.  That means every box of Tofurky hot dogs sold could cost the company $1000. Imagine how many packages the company sells in Arkansas each year and do the math.  As Tofurky points out in its complaint, its choices are to pay the fines, abandon Arkansas, or completely redesign its packaging.  No good options. And, given that it sells products on the internet, it almost can’t stop selling to Arkansas customers even if it wanted to.

This seems like a solution in search of a problem.  And while I am not a fan of the plant-based products, I am a fan of the First Amendment.   So I will be rooting for Tofurky in this one.