First amendment implications of restricting food and beverage marketing in schools

Annals of the American Academy of Political and Social Science

Volumn 615, Issue 1, 2008, Pages 158-177

  Graff, Samantha K ^a  

^a PUBLIC HEALTH INSTITUTE   (United States)

Author keywords

Commercial speech; Commercialization of childhood; First Amendment; In school advertising; Junk food and soda; Marketing to children; Nutrition; Obesity

Indexed keywords

EID: 37349103354     PISSN: 00027162     EISSN: 15523349     Source Type: Journal    
DOI: 10.1177/0002716207308398     Document Type: Review

References (101)

1. See Adler v. Bd. of Educ. of City of New York, 342 U.S. 485, 508 (1952) (J. Douglas, dissenting); James v. Bd. of Educ., 461 F.2d 566, 568 (2d Cir. 1972).
2. Ambach v. Norwick, 441 U.S. 68, 77-78 (1979).
3. See Public Health Institute, Food Advertising to Children and Youth: Do They Influence Unhealthy Food Purchases? (2004), available at http://www.californiaprojectlean.org/Assets/1019/files/Brief_2.pdf (accessed June 21, 2007);
4. Council for Corporate and School Partnerships, School Beverage Guidelines, http://www.corpschoolpartners.org/bev_guidelines.shtml (accessed June 21, 2007).
5. MICHELE SIMON, APPETITE FOR PROFIT: HOW THE FOOD INDUSTRY UNDERMINES OUR HEALTH AND HOW TO FIGHT BACK 245-73 (2006).
6. See SUSAN LINN, CONSUMING KIDS: PROTECTING OUR CHILDREN FROM THE ONSLAUGHT OF MARKETING & ADVERTISING 77-78 (2004);
7. Steven Manning, Students for Sale, THE NATION (Sept. 27, 1999);
8. Lawrence Hardy, The Lure of School Marketing, AM. SCH. BOARD J. (Oct. 1999), available at http://www.asbj.com/199910/ 1099coverstory.html.
9. See Alex Molnar, Commercialism in Education Research Unit, NINTH ANNUAL REPORT ON SCHOOLHOUSE COMMERCIALISM TRENDS 6-27 (2006), available at http://epsl.asu.edu/ceru/Annual%20reports/EPSL-0611-220-CERU.pdf (accessed June 21, 2007).
10. See Alex Molnar et al., COMMERCIALISM IN EDUCATION RESEARCH UNIT, EXECUTIVE SUMMARY: A NATIONAL SURVEY OF THE TYPES AND EXTENT OF THE MARKETING OF FOODS OF MINIMAL NUTRITIONAL VALUE IN SCHOOLS 2-3 (2006), available at http://epsl.asu.edu/ceru/Documents/EPSL-0609-211-CERU-EXEC.doc (accessed June 17, 2007).
11. See id.; Linn, supra note 5, at 75-76.
12. See Kim Hacket, Coke's Reading Program Can Leave a Funny Taste, SARASOTA HERALD TRIBUNE (Aug. 19, 2003).
13. See Michelle Simon, Junk Food's Health Crusade: How Ronald McDonald Became a Health Ambassador, and Other Stories, 26 MULTINATIONAL MONITOR (2005), available at http://multinationalmonitor.org/mm2005/032005/simon.html (accessed June 18, 2007).
14. See Centers for Disease Control and Prevention, Guidelines for School Health Programs to Promote Lifelong Healthy Eating, 45(RR-9) MMWR 1 (June 14, 1996).
15. See, e.g., Martha Y. Kubik et al., The Association of the School Food Environment with Dietary Behaviors of Young Adolescents, 93 AM. J. OF PUB. HEALTH 1168, 1168 (2003);
16. Martha Y. Kubik et al., Schoolwide Food Practices Are Associated with Body Mass Index in Middle School Students, 159 ARCHIVES OF PEDIATRICS & ADOLESCENT MED. 1111, 1111 (2005).
17. See ALEX MOLNAR, COMMERCIALISM IN EDUCATION RESEARCH UNIT, SCHOOL COMMERCIALISM, STUDENT HEALTH, AND THE PRESSURE TO DO MORE WITH LESS (2003), available at http://epsl.asu.edu/ceru/Documents/ EPSL-0307-105-CERU.doc (accessed June 18, 2007).
18. This article presumes that a school district will be the level of government targeted for policy intervention, but the analysis would apply equally to laws and regulations adopted at the state level.
19. This article focuses on First Amendment issues and does not analyze all of the causes of action that might be brought against a school district for attempting to control food and beverage marketing in schools.
20. See Valentine v. Chrestensen, 316 U.S. 52, 54 (1942) (setting a thirty-year precedent for the principle that the First Amendment does not protect commercial advertising).
21. Roth v. United States , 354 U.S. 476, 484 (1957). The Court had allowed clear and narrow content-based restrictions on specified categories of speech that are considered to trigger immediate danger or to be of a low social value. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) (announcing a test for judging laws that restrict speech inciting imminent lawless action); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (setting forth a standard for recovery for an alleged defamatory falsehood relating to a public official); Roth v. United States, 354 U.S. 476 (1957) (finding obscenity to be outside the arena of constitutionally protected speech); Chaplinsky v. New Hampshire , 315 U.S. 568 (1942) (upholding a statute banning words that trigger an automatic violent response).
22. See, e.g., Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984) ("Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment."); Street v. New York, 394 U.S. 576, 592 (1969) ("It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.").
23. See Alex Kozinski & Stuart Banner, The Anti-history and Pre-history of Commercial Speech , 71 TEX. L. REV. 747 (1993) (arguing that prior to 1975, the Court construed advertising as a form of economic activity and did not consider or reject the notion that advertising might be speech subject to First Amendment protection).
24. Valentine, 316 U.S. at 54-55.
25. Williamson v. Lee Optical Co., 348 U.S. 483 (1955).
26. Breard v. Alexandria , 341 U.S. 622 (1951).
27. 425 U.S. 748 (1976).
28. The Court first considered whether the plaintiffs had the right to assert a First Amendment claim when they were mere consumers seeking access to drug price information. The Court granted the plaintiffs standing, holding that "if there is a right to advertise, there is a reciprocal right to receive the advertising." Id. at 757.
29. Id. at 762 (quoting Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 385 [1973]).
30. Id. at 763. 27. Id. at 765.
31. Id. at 770.
32. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 781 (1976) (J. Rehnquist, dissenting).
33. Id.
34. Id. at 788-89.
35. See Randolph Kline et al., Beyond Advertising Controls: Influencing Junk-Food Marketing and Consumption with Policy Innovations Developed in Tobacco Control, 39 LOY. L.A. L. REV. 603, 608-612 (2006).
36. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461 (1981).
37. See Gregory v. Ashcroft , 501 U.S. 452, 471 (1991).
38. See FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).
39. See Jacobson v. Massachusetts, 197 U.S. 11, 29, 38 (1905); Prince v. Massachusetts, 321 U.S. 158, 168 (1944).
40. FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).
41. See Lorillard v. Reilly, 533 U.S. 525, 570 (2001) (declining to rule on the issue because it was not sufficiently briefed and argued before the Court). In another example of the murky distinction between product and advertising regulation, the Supreme Court recognized in Lorillard that a regulation of the way products are displayed may involve a speech interest that triggers First Amendment review. See id. at 569-70.
42. See Curtis Publishing Co. v. Butts, 388 U.S. 130, 145 (1967) (addressing the waiver of First Amendment rights); Erie Telecomm. Inc. v. City of Erie, 853 F.2d 1084, 1094 (3d Cir. 1988) (listing Supreme Court cases recognizing that constitutional rights may be waived under particular circumstances); Leonard v. Clark, 12 F.3d 885 (9th Cir. 1993) (recognizing that First Amendment rights may be waived via contract).
43. D.H. Overmyer Co., Inc. v. Frick Co., 405 U.S. 174, 187 (1972) (discussing requirements for waiver); Fuentes v. Shevin, 407 U.S. 67, 95 (1972) (discussing requirements for waiver).
44. Erie Telecomm., 853 F.2d at 1096.
45. See, e.g., Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) (describing when individual government actions, taken together, become a government policy subject in and of itself to legal challenge); Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (same).
46. Boos v. Barry, 485 U.S. 312, 321 (1988) (noting that a content-based speech restriction "focuses only on the content of the speech and the direct impact that speech has on its listeners").
47. 460 U.S. 37 (1983).
48. Id. at 45.
49. Id.
50. Id. (citing City of Madison Joint Sch. Dist. v. Wisconsin Pub. Employment Relations Comm'n, 429 U.S. 167 (1976); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975)).
51. Id. at 46.
52. See U.S. v. Kokinda, 497 U.S. 720, 730 (1990) (holding that a post office is a non-public forum); Greer v. Spock 424 U.S. 828, 838 (1976) (finding an army post to be a non-public forum).
53. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). Note that the Supreme Court has allowed clear and narrow content-based restrictions on specified categories of speech that are considered to trigger immediate danger or to be of a low social value. See note 17, supra, for examples of such cases.
54. Id. at 46.
55. Id.
56. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988).
57. Id.
58. Id.
59. Id. at 266 (internal quotations marks, citations omitted).
60. Id. at 267 (internal quotations marks, citations omitted; emphasis added). See also DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 968 (9th Cir. 1999) (holding that advertising space on school's baseball field fence was a non-public forum); Williams v. Vidmar, 367 F. Supp. 2d 1265, 1273 (N.D. Cal. 2005) ("a K-12 classroom in a public elementary school is a nonpublic forum"); Hedges v. Wauconda Cmty. Unit Sch. Dist., 9 F.3d 1295, 1302 (7th Cir. 1993) ("a junior high school is a nonpublic forum, which may forbid or regulate many kinds of speech").
61. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 47 (1983) (holding that teacher mailboxes in an Indiana public school district were a non-public forum even though outside civic groups were allowed to place flyers in the boxes, since the school required permission to place the flyers and did not allow the public indiscriminate access to the boxes); Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817, 824 (9th Cir. 1991) (en banc) (finding that a school-sponsored publication was not a public forum even though the school solicited advertisements from certain businesses, including casinos, bars, churches, and political candidates, because the school did not open its publications, including advertising space, to "indiscriminate use").
62. See Lehman v. City of Shaker Heights, 418 U.S. 298, 303 (1974) (holding advertising space on a public transit system to be a non-public forum); DiLoreto, 196 F.3d at 966 ("where the government acts in a proprietary capacity to raise money or to facilitate the conduct of its internal business, the Supreme Court generally has found a nonpublic forum, subject only to the requirements of reasonableness and viewpoint neutrality").
63. 447 U.S. 557 (1980).
64. Id. at 563-64.
65. Id. at 564.
66. Id. at 562-63 (describing the commercial speech analysis as an intermediate standard of review).
67. See, e.g., Bd. of Trs. of State Univ. v. Fox, 492 U.S. 469, 474 n.2 (1989) (considering a public university's ban on Tupperware parties in student dorms and implying that the application of the commercial speech test in the case depended on the assumption that the dorms constituted a public forum).
68. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996); see, e.g., Lorillard v. Reilly, 533 U.S. 525, 565 (2001) (discussing the importance of advertising to adults for retailers).
69. See Alan E. Garfield, Protecting Children from Speech, 57 FLA. L. REV. 565 (2005).
70. 321 U.S. 158 (1944)
71. Id. at 168.
72. Ginsberg v. State of N.Y., 390 U.S. 629, 636 (1968) (internal quotations omitted).
73. Hazelwood Sch. District v. Kuhlmeier, 484 U.S. 260, 266 (1988); cf. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986) (holding that the First Amendment rights of students in public schools "are not automatically coextensive with the rights of adults in other settings").
74. See Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817 (9th Cir. 1991) (en banc). Note that the Ninth Circuit is the largest court of appeals in the country, and its decisions are binding in nine western states and the Territory of Guam.
75. 941 F.2d 817 (9th Cir. 1991) (en banc).
76. Id. at 828; cf. DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 964-65 (9th Cir. 1999) (applying a non-public forum analysis to a district's refusal to post a religious advertisement on the high school's baseball field).
77. Planned Parenthood, 941 F.2d at 819-20 (quoting Hazelwood, 484 U.S. at 273).
78. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983).
79. Id. at 50-51 (internal quotations omitted). In assessing the reasonableness prong in non-public forum cases, the Supreme Court has also considered whether the policy leaves open alternative channels of communication to the target audience. See id. at 53-54; Greer v. Spock, 424 U.S. 828, 839 (1976); Pell v. Procunier, 417 U.S. 817, 827-28 (1974). However, it is questionable whether courts would apply this consideration when the target audience is children, who have lesser First Amendment rights to receive information than adults. See, e.g., Ginsberg v. State of N.Y., 390 U.S. 629, 636 (1968).
80. Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 683 (1992) (internal quotations, citations omitted; emphasis in original).
81. Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817, 825-26 (9th Cir. 1991) (en banc).
82. Id. at 829.
83. See id. at 827 (finding a school district's decision to exclude particular advertisements to be reasonable in light of the school's pedagogical interests in "dissociating itself from speech inconsistent with its educational mission and avoiding the appearance of endorsing views"); cf. Bd. of Trs. of State Univ. v. Fox, 492 U.S. 468, 475 (1989) (applying the more rigorous commercial speech analysis and noting that a university has a substantial interest in "promoting an educational rather than commercial atmosphere" and "preventing commercial exploitation of students").
84. See, e.g., Lorillard v. Reilly, 533 U.S. 525, 567-70 (2001) (upholding a government regulation requiring a vendor to place tobacco products behind the counter while presuming that the vendor still may communicate about the product by placing empty tobacco packaging on open display).
85. Note that in Hazelwood School District v. Kuhlmeier, the Supreme Court arguably dropped the viewpoint neutrality requirement for speech "that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school." 484 U.S. 260, 271, 273 (1988). The Hazelwood Court upheld a school's decision to censor certain newspaper articles, determining that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." Id. at 273. The Court did not address whether the decision was viewpoint neutral. In the wake of Hazelwood, the circuits are divided on whether a restriction on third-party speech that bears a school's "imprimatur" in a non-public forum must be viewpoint neutral. See Fleming v. Jefferson County Sch. Dist., 298 F.3d 918 (10th Cir. 2002) (noting that the Third and Tenth Circuits interpret Hazelwood to eliminate the viewpoint neutrality requirement for "imprimatur" speech while the Ninth and Eleventh Circuits continue to require viewpoint neutrality for such speech).
86. Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. at 672, 679 (1992).
87. See, e.g., Marjorie Heins, Viewpoint Discrimination, 24 HASTINGS CONST. L.Q. 99, 101 (1996) (noting that "the Supreme Court . . . has not been a model of clarity" with regard to defining "viewpoint neutrality").
88. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 49 (1983).
89. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112 (2001).
90. See Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817, 829 (9th Cir. 1991).
91. See, e.g., Hills v. Scottsdale Unified Sch. Dist., 329 F.3d 1044, 1053 (9th Cir. 2003) (finding that a school violated the viewpoint neutrality standard when it distributed literature about summer programs but excluded a brochure for a religious summer camp); PMG Intern. Div. L.L.C. v. Rumsfeld, 303 F.3d 1163, 1171 (9th Cir. 2002) (holding that a military base's ban on the sale of sexually explicit material was viewpoint neutral because it would eviscerate the line between content and viewpoint to characterize the ban as targeting the viewpoint that the human sexual response is positive and healthy).
92. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001) ("Viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker."); Rust v. Sullivan, 500 U.S. 173, 192-93 (1991).
93. See, e.g., Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1011-13 (9th Cir. 2000) (upholding the decision of school officials to remove a teacher's bulletin board that posted objections to the school's Gay and Lesbian Awareness Month bulletin board and listing cases holding that when the government is the speaker, it may advance a particular viewpoint).
94. Compare Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) with Hazelwood Sch. District v. Kuhlmeier, 484 U.S. 260, 270 (1988).
95. 383 U.S. 503 (1969).
96. Id. at 514.
97. Id. at 513.
98. No. 06-278 (U.S. June 25, 2007).
99. Id. at 15.
100. Id. at 14.
101. See id. (differentiating between student speech that is merely offensive and student speech that appears to promote illegal drug use).