Restaurants lose First Amendment challenge to calories regulation

New York City enacted a regulation requiring chain restaurants to conspicuously post the nutritional content of their food. The resturant industry challenged those rules in court, claiming among other things that they violate the First Amendment rights of resturants who do not want to government to coerce their speech. The restaurants lose the case.

The case is New York State Restaurant Association v. New York City Board of Health, 08 Civ. 1000 (RJH), decided on April 17, 2008. (No Lexis cite yet).

Generally, the government cannot coerce you to adopt speech with which you disagree. The classic cases in this respect were the Pledge of Allegience case of the early 1950's, when the Supreme Court ruled that the government cannot force children to salute the flag, and also the "Live Free or Die" case of the 1970's, when the Supreme Court held that the State of Vermont cannot force motorists to drive around with that slogan on their license plates. But this this case involves commercial speech, the government has greater leeway to regulate the corporate speech here.

The opening for the restaurants in this case is the legal principle that the government cannot force businesses to subsidize messages that they disagree with. The restaurants argued that the regulation forces them to promote the message that "patrons must consider the caloric content of food when ordering in a resturant, and that calories are the only nutritional criterion that patrons need to consider." The Court disagrees with this novel proposition because the regulation does not require the restaurants to take a position in any ongoing debate. It only requires the restaurants to post non-controversial information: the caloric content of their food.