Speak For Yourself: An Update On Compelled Commercial Disclosure

Arnold & Porter has played a key role in developing First Amendment doctrine that protects the rights of businesses, highlighted by the firm's 2011 Supreme Court victory in Sorrell v. IMS Health Inc. To help guide our clients on this important issue, we also monitor cases throughout the United States to track emerging trends. The latest case, out of the Ninth Circuit Court of Appeals, illustrates some of the issues arising in the lower courts after the Supreme Court's recent decision in National Institute of Family & Life Advocates v. Becerra (or NIFLA). The Ninth Circuit unanimously halted enforcement of a San Francisco ordinance requiring certain warnings on beverage advertisements. The eleven judges on the en banc panel, however, split four ways in their reasoning, and they especially disagreed over how to apply NIFLA. The Ninth Circuit's decision could be claimed as a victory by both regulators and businesses. The majority's narrow interpretation of NIFLA may prove