What Free Speech Has To Do With Skim Milk, Condoms And Corporate Political Spending

Apr 5, 2018

The concept of free speech is frequently heard in courtrooms across the country. Advocates on all kinds of issues try to tie their legal and policy arguments to a constitutional right most Americans hold as fundamental. Consider recent debates over net neutrality, for example, or abortion rights.

The impetus for the First Amendment — granting Americans the freedom of speech, religion and the press and the right to petition and peacefully protest — stemmed from the view that the Constitution granted a lot of power to the federal government without much protection for citizens' rights, historians say. But many of the modern cases have less to do with citizens speaking to federal power than with the boundaries of businesses and organizations reaching into Americans' lives.

Below are a few of the cases from the 21st century that highlight both the versatility and the limitations of what the right to free speech has come to embody, at least in the U.S. justice system.

Abortion protest buffer zones

McCullen v. Coakley, 2014

In 2007, the Massachusetts state legislature created a 35-foot buffer zone around abortion clinics that could be crossed only by people entering the facilities. Protesters and "pro-life counselors" who try to dissuade women from receiving abortions were barred from being inside the buffer zone.

Anti-abortion-rights activist Eleanor McCullen, who stood outside the same Planned Parenthood in Boston every Tuesday and Wednesday for over a decade, argued that the buffer zones were an unconstitutional infringement on free speech. "It's America," she said. "I should be able to walk and talk gently, lovingly, anywhere with anybody."

The U.S. Supreme Court justices unanimously ruled in her favor, finding that the buffer zones infringed on protesters' First Amendment rights. Massachusetts took "the extreme step of closing a substantial portion of a traditional public forum to all speakers," Chief Justice John Roberts wrote in his opinion. To curb harassment, he noted, the state could follow the lead of New York City, which made it "a crime 'to follow and harass another person within 15 feet of the premises of a reproductive health care facility.' "

Censoring skim milk

Ocheesee Creamery LLC v. Putnam, 2017

Most of the vitamin A that is found naturally in milk is contained in its cream — which is removed when milk is skimmed. Under Florida law, milk can only be labeled "skim milk" if it has the same amount of vitamin A as whole milk.

That was a problem for Ocheesee Creamery owner Mary Lou Wesselhoeft, who wanted to sell pure skim milk. If the creamery artificially added enough vitamin A, the product would meet Florida's skim milk label requirement, but Wesselhoeft didn't want additives of any kind in her product.

Wesselhoeft, represented by the Institute For Justice, filed a free speech lawsuit on the basis that the First Amendment "protects the right of businesses to tell the truth." The case made it to the U.S. Court of Appeals for the 11th Circuit, where a three-judge panel ruled in her favor, saying: "The Creamery's use of the words 'skim milk' to describe its skim milk is not inherently misleading."

Condoms as art

California Proposition 60, 2016

Proposition 60 would have allowed the California Occupational Safety and Health Administration to prosecute producers anytime a condom is not visible in a pornographic film. The AIDS Healthcare Foundation and its president sponsored the proposition amid a 20-year high of sexually transmitted infections in the state.

Pornographic producers and performers cited artistic freedom of speech and noted that performers were subject to mandatory testing. Member station KALW reported that "performers also worry that if Prop 60 passes, the industry would go underground — something they argue would ultimately make them less safe."

California voters rejected the proposition by a margin of 54 percent to 46 percent.

Corporations are people, too

Citizens United v. Federal Election Commission, 2010

In a landmark case that restructured American campaign finance, the U.S. Supreme Court ruled that political donations amount to a form of speech protected under the First Amendment, even when the spending is done by corporations and unions instead of individual people.

Though companies can't directly donate to campaigns, the ruling gave them power to freely spend money in support or opposition of political candidates on the federal, state or local level. This led to the creation of a new type of political fundraising vehicle called superPACs, which contributed to the explosive growth of campaign spending. They now outspend the national political parties.

As NPR's Nina Totenberg put it, Citizens United represented one of the key cases showing how the Supreme Court has over time "extended some — but not all — of the rights guaranteed to individuals in the Bill of Rights" to corporations.

Words that "inflict great pain"

Snyder v. Phelps, 2011

The Supreme Court took on a case brought by the family of a deceased Marine against members of the Westboro Baptist Church, who picketed his funeral with signs such as "Thank God for Dead Soldiers." As NPR reported, the "church members have traveled the country for years, picketing hundreds of military funerals to communicate their belief that 'God hates the USA' for its tolerance of homosexuality, particularly in the military."

The Marine's father sued the fundamentalist church for intentional infliction of emotional distress. But the Supreme Court ruled that the First Amendment protected the protesters from liability because the signs were about the country in general. Roberts wrote in the majority opinion:

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

Violent video games

Brown v. Entertainment Merchants Association, 2011

The gaming industry challenged a California ban on the sale or rental of violent video games to people under 18. The U.S. Supreme Court considered whether the ban violated the Constitution and indeed ruled that the First Amendment protected video games the same way it protects books, plays and movies.

Writing for the majority, Justice Antonin Scalia wrote that the government did not have "a free-floating power to restrict the ideas to which children may be exposed" just because lawmakers think that ideas or images "are unsuitable for them."

Scalia drew a parallel between violent video games and books like Grimm's Fairy Tales and pointed out that while the United States does often shield children from depictions of sex — the country had no such tradition for violence.

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