In the 1950s, Big Tobacco advertised the safety of “Kent with the Micronite Filter,” which was unfortunately made with an exceptionally dangerous form of asbestos. After decades of advertising bans and mandatory disclosures, the battle over cigarette ads continues, leading most recently to R.J. Reynolds Tobacco Co. v. FDA – a First Amendment challenge to new, more graphic disclosures about the potential harms of smoking.

The Fifth Circuit rejected the challenge (reversing a contrary district-court opinion) and remanded for consideration of claims involving the Administrative Procedure Act. As to the First Amendment issues, the Court summarized:

When determining whether Zauderer applies, (1) images can be factual; (2) ideological or emotion-inducing statements are not per se controversial or non-factual; (3) “uncontroversial” means not subject to good-faith dispute about the accuracy of the factual statement; and (4) legitimate state interests other than the prevention of consumer deception are cognizable under Zauderer. For the reasons detailed above, the district court erred by finding Zauderer inapplicable to the FDA’s newest Warnings. Applying Zauderer, the Warnings survive constitutional muster against the First Amendment challenge.

No. 23-40076 (March 21, 2024).

The latest installment in the “Bar Wars” litigation about speech by compulsory bar associations is Boudreaux v. Louisiana State Bar Ass’n, holding:

[T]he majority of speech Boudreaux objects to is germane. Speech can be germane even if it is “controversial and ideological.” But the LSBA crossed the line when it promoted purely informational articles absent any tailoring to the legal profession. That includes the LSBA’s tweet about student-loan reform and its promotion of the History.com article through a pride flag icon. Advancing generic political and social messages in those ways violates the First Amendment rights of the LSBA’s dissenting members. 

No. 22-30564 (Nov. 13, 2023).

Turtle Island Foods (d/b/a Tofurky) makes plant-based food products, such as plant-based burgers, sausages, etc. It sued the Louisiana Agriculture Commissioner because of concerns about liability under that state’s Truth in Labeling of Food Products Act, which imposes civil penalties for “representing a food product as meat .. when the food product is not derived” from an animal.

The Fifth Circuit held as follows:

1. Standing. Tofurky had standing. It did not have to “establish that it openly intends to violate the Act”; only that “its intended action–continuing with its ‘plant-based’ labels that use meat-esque words–is arguably proscribed.”
2. Merits. Louisiana argued that by its terms, the law “applies only to ‘persons who intentionally misbrand or misrepresent” facts about a food product. In the context of a facial challenge, the Court was “required ‘to accept a narrowing construction of a state law in order to preserve its constitutionality.'”

With the issue so framed, the Court ruled for the state and reversed the trial court’s injunction against enforcement of the law. Turtle Island Foods v. Strain, No. 22-30236 (April 12, 2023) (citations omitted).

Austin’s regulation of large freeway billboards returned to the Fifth Circuit after an earlier opinion was reversed by the Supreme Court; on remand, a 2-1 majority cut to the chase and concluded: “Municipalities have traditionally been given wide discretion in the domain of sign regulations. Austin is entitled to that latitude. AFFIRMED.” A dissent read the signs given by the Supreme Court differently. Reagan National Adv. of Austin, Inc. v. City of Austin, No. 19-50354 (March 30, 2023).

The Supreme Court will review Reagan National Advertising v. City of Austin, 972 F.3d 696 (5th Cir. 2020). The court’s summary of the issue presented is below, and here is my discussion of the case on the Coale Mind podcast —

The “similar birds” case — Alliance for Good Government v. Coalition for Better  Government — returned to the Fifth Circuit to address attorneys’ fees. The panel majority affirmed the final fee award, over a strong dissent that questioned the application of the Lanham Act to what it saw as purely political speech. No. 20-30233 (May 19, 2021).

In 1971, the Five Man Electrical Band decried an overabundance of signs, complaining that they were “[b]locking out the scenery, breakin’ my mind.” Similarly, in recent years, the City of Austin grew weary of the many highway billboards in Central Texas. It enacted an ordinance that stopped a large number of them from being updated to a new, digital format, so long as the sign involved “off-premises” business activity. The Fifth Circuit found that the ordinance was unconstitutional in Reagan National Advertising of Austin v. City of Austin, No. 19-50354 (Aug. 25, 2020) (applying Reed v. Town of Gilbert, U.S. 155 (2015)).

The specific question was whether the regulation’s limit to “off-premises” businesses was a restriction on content, or one on time, place, or manner, under the framework established by the Supreme Court in Reed. The Court focused on a series of challenging hypotheticals it has posed to the City’s counsel at oral argument, including, inter alia:

• Could Barbara and Tom maintain a digital sign in their yard that says “We love hamburgers” that contained the logo and address to a Whataburger location two miles away?

• Could Sarah place a digital sign in her yard that said “Vote for Kathy” if Kathy did not live at Sarah’s house?

• How could one determine whether a digital bilboard that said “God Loves You” is on-premises or off-premises?

Finding these hypotheticals as challenging as the City’s counsel did, the Court concluded that the regulation forced a consideration of content to determine its applicability, making it a content restriction under Reed.

In Vizaline, LLC v. Tracy, the Fifth Circuit formally implemented NIFLA v. Becerra, 138 S.Ct. 2361 (2018), in the context of Mississippi’s licensing of surveyors: “The Supreme Court has recently disavowed the notion that occupational licensing regulations are exempt from First Amendment scrutiny. In overturning the “professional speech” doctrine deployed by some circuits, including ours, the Court rejected any theory of the First Amendment that ‘gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.’ The district court’s ruling in this case—that Mississippi’s licensing requirements for surveyors do not trigger any First Amendment scrutiny—was inconsistent with NIFLA. We therefore reverse and remand for further proceedings.” No. 19-60053 (Feb. 14, 2020) (citations omitted, emphasis added).

A Mississippi regulatory board for engineers sought to ban the use of the phrase “Tire Engineers” by an oil-change business (right); the Fifth Circuit disagreed with it: “Evidence offered by both parties, particularly when viewed in the light most favorable to Express as the non-moving party, demonstrates that other states with similar statutes have not challenged the use of the trademark. Thus, despite claims to the contrary, the Board is an outlier in this respect, and it fails to address why alternative, less-restrictive means, such as a disclaimer, would not accomplish its stated goal of protecting the public. The Board thereby fails to satisfy the required burden of demonstrating a reasonable fit between its regulation and the constitutionally-protected speech.” Express Oil Change LLC v. Mississippi Board of Licensure for Profesional Engineers & Surveyors, No. 18-60144 (Feb. 19, 2019).

Longtime Texas practitioners will remember when lawyer ads had to contain a cumbersome notice that the attorney was “NOT BOARD CERTIFIED – TEXAS BOARD OF LEGAL SPECIALIZATION” if he or she did not have a TBLS certification.  The dental field bit into a similar regulation in American Academy of Implant Dentistry v. Parke, which prohibited claims of specialization in areas not recognized by the American Dental Association. The Fifth Circuit panel majority, after chewing on the First Amendment framework for the regulation of commercial speech, found a poor bridge between the asserted government interest and the scope of the regulation, making it unconstitutional. A dissent would have affirmed the regulation as addressing “inherently misleading” speech, which is rooted in a different First Amendment framework. No. 16-50157 (June 19, 2017).

The attorney general of Mississippi served Google with a broad administrative subpoena about Google’s efforts to reduce copyright infringement, drug trafficking, and other undesirable uses of its search technology. Google responded with a federal lawsuit seeking an injunction against the subpoena and further proceedings about it. The Fifth Circuit found federal jurisdiction, as “Google’s claims seeking to enjoin a state officer’s alleged violations of federal law invoke federal-question jurisdiction,” and found no reason to abstain under Younger v. Harris. But the Court went on to find that the action was not yet ripe: “there is no current consequence for resisting the subpoena and the same challenges raised in the federal suit could be litigated in state court.”  Google, Inc. v. Hood, No. 15-60205 (April 8, 2016).  Accordingly, it vacated the injunction granted by the trial court, and remanded with instructions to dismiss.

Rowell v. Pettijohn confronted the surprisingly subtle question of whether a Texas statute, which proscribes surcharges by merchants for credit-card purchases, violates the First Amendment.  The panel majority concluded that it did not, as “prices, although necessarily communicated through language, do not rank as ‘speech’ within the meaning of the First Amendment.”  A dissent saw matters differently: “[T]he Texas law does not regulate the difference between prices . . . .  All that it regulates is what merchants can tell customers about their prices.”  Other circuits have also reached different conclusions about similar statutes in other states.  No. 15-50168 (March 2, 2016).

Despite the combined starpower of Danny Trejo, Lady Gaga, and Mel Gibson, the movie “Machete Kills” holds a 29% rating on Rotten Tomatoes.  That site’s “Critical Consensus” says: “While possessed with the same schlocky lunacy as its far superior predecessor, Machete Kills loses the first installment’s spark in a less deftly assembled sequel.”  Perhaps motivated by one of the worst theater openings of all time, the makers of this movie raised constitutional claims about the denial of funding by Texas’s filmmaker incentive program.

The Fifth Circuit affirmed dismissal on the pleadings: “Despite the denial of an Incentive Program grant, Machete Kills was still filmed in Texas, produced, and released. Machete does not dispute that it was free to engage in protected First Amendment activity without the benefit of an Incentive Program grant, and in fact did engage in such activity by making the film. Machete has not shown that it is clearly established that the First Amendment requires a state which has an incentive program like this one to fund films casting the state in a negative light.”  Machete Productions LLC v. Page, No. 15-50120 (Dec. 28, 2015).

In St. Joseph Abbey v. Castille, the Fifth Circuit affirmed a substantive due process challenge to a state law that stopped a group of monks from making funeral caskets. The Court explained the limits of that holding and noted: “Nor is the ghost of Lochner lurking about.”  712 F.3d 215, 227 (5th Cir. 2013). Confirming that such a phantom still does not haunt the Circuit, the Court rejected First Amendment and due process challenges to a Texas law that requires a veterinarian to physically examine an animal before treating it (and which thus prohibits “distance” treatment via the Internet.) The Court found a rational connection between the law and quality animal care, and noted: “The idea that content-neutral regulation of the professional-client relationship does not violate the First Amendment has deep roots, and has been embraced by many circuits.”  Hines v. Alldredge, No. 14-40403 (March 27, 2015).

In Department of Texas, Veterans of Foreign Wars v. Texas Lottery Commission, the en banc Fifth Circuit reversed a 2013 panel opinion and reinstated a permanent injunction against the Texas Bingo Enabling Act, which “allow[ed] charitable organizations to raise money by holding bingo games on the condition that the money is used only for the organizations’ charitable purpose.”  No. 11-50932 (July 28, 2014).  The Court found that this restriction imposed an unconstitutional condition on those organizations’ First Amendment rights, and distinguished Rust v. Sullivan on the grounds that “the government  may attach certain speech restrictions to funds linked to the public treasury — when either granting cash subsidies directly from the public coffers or approving the withholding of funds that would otherwise go to the public treasury. . . . The bingo program in Texas is wholly distinguishable . . . simply because no public monies or ‘spending’ by the state are involved.”  (citations omitted).

A law firm argued that the Texas “anti-SLAPP” statute protected its efforts to solicit former patients of a dental clinic as clients.  NCDR, LLC v. Mauze & Bagby PLLC, No. 12-41243 (March 11, 2014).  (This statute has led to a great deal of litigation about communication-related disputes, often in areas that the Legislature may not have fully anticipated — this blog’s sister details such litigation in the Dallas Court of Appeals.)  In a detailed analysis, the Fifth Circuit agreed that the district court’s ruling against the firm was appealable as a collateral order.  The Court then sidestepped an issue as to whether the anti-SLAPP statute was procedural and thus inapplicable in federal court, finding it had not been adequately raised below.  Finally, on the merits, the Court affirmed the ruling that the law firm’s activity fell within the “commercial speech” exception to the statute:  “Ultimately, we conclude that the Supreme Court of Texas would most likely hold that M&B’s ads and other client solicitation are exempted from the TCPA’s protection because M&B’s speech arose from the sale of services where the intended audience was an actual or potential customer.”

Texas allows charitable bingo if the sponsoring organization does not use the proceeds for political advocacy; several charities challenged that restriction on First Amendment grounds.  Department of Texas, VFW v. Texas Lottery Commission, No. 11-50932 (August 21, 2013).  In a new opinion issued on panel rehearing, the Fifth Circuit rejected a standing challenge based on the interplay of the relevant law with other gambling laws (which the state argued made the lawsuit irrelevant), and then reversed an injunction against the law.  The Court saw the case as controlled by Rust v. Sullivan, 500 U.S. 173 (1991), noting: “The challenged provisions in this case do nothing to restrict speech outside the scope of the State’s bingo program. Charities are free to participate in the bingo program and engage in political advocacy; they simply must not use bingo proceeds to do so.”  For similar reasons, it distinguished Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010).  A dissent argued that Rust did not control and the law was invalid under the “unconstitutional conditions” doctrine.

In Gibson v. Texas Department of Insurance, a state regulator sought to prohibit an attorney from using the domain: “texasworkerscomplaw.com.”  No. 11-11136 (Oct. 30, 2012). Even assuming the domain name was only commercial speech, the Fifth Circuit reasoned that Texas failed to show that the name was inherently deceptive, and also “made no serious attempt to justify” its regulation as an effort to “prevent misuse of the DWC’s names and symbols.”  Id. at 9-10.  The Court thus reversed and remanded for consideration of the “misuse” issue and to allow Gibson to show that the domain was “ordinary, communicative speech, and not merely . . . commercial speech.”  Its analysis reviewed several cases about trademark issues in the domain name context.  Id. at 8 & n.1.