Infinite Liability For Speech: Can California Impose Liability On 80-Year-Old Speech For Not Conforming With The Latest Findings In Medical Science?

This case is of vital importance because it raises significant First Amendment issues regarding future liability for commercial speech that was truthful and non-deceptive at the time it was made. A California trial court and the California Court of Appeal held Sherwin-Williams and other paint manufacturers liable on (judicially innovative) “public nuisance” grounds based on an advertisement that Sherwin-Williams ran once in 1904 in the Los Angeles Times and the San Diego Union Tribune and $5,000 in donations to a trade organization — made between 1937-1941 — that the organization used to promote paint, including lead paint, for lumber products. This liability holding does not take into account who purchased lead paint and whether or not and to what extent they were actually harmed. 

At all times that Sherwin-Williams advertised lead paint in California, it was a legal product for interior residential use. Nevertheless, the California courts ruled that factually truthful promotion of lawful products has no First Amendment protection because those products were found decades later to be potentially hazardous. The federal government first regulated residential use of lead-based paint in 1971 and banned that use in 1978. In early 2000, several California cities and municipalities sued Sherwin-Williams using a novel legal theory, namely, that the company created a “public nuisance” by promoting lead paint. The California courts held that Sherwin-Williams was liable for commercial speech that was “inherently misleading” decades ago because its “promotion” of lead paint “necessarily implied that lead paint was safe.” The fact that at the time that the speech was made lead paint was not known to be hazardous did not protect Sherwin-Williams from liability. 

 

Issue Areas:

Free Enterprise, Limited Government

Case:

Sherwin-Williams v. California, No. 18-86 (Supreme Court) (petition-stage)

Read the Amicus Brief:
Question(s) Presented:

Does the First Amendment permit California to impose tort liability for truthfully promoting a lawful product that it finds to be hazardous in some uses decades after the alleged speech?


Additional Background:

This California ruling makes companies internalize the risk that the products they promote will be found to be possibly hazardous at some indefinite point in the future. This risk becomes an unknowable cost of advertising for companies which they will attempt to mitigate by advertising less and doing more research. Either way, information available to the public will be lessened as fewer companies compete in the market as they cannot bear the risk that becomes inherent in advertising their products even with the best information currently available. This chilling effect on speech will not benefit consumers as information becomes more expensive for them to obtain even about products that are currently thought to be safe. 

ALF’s Amicus Brief:

In an amicus brief ALF argues that certiorari should be granted because California’s “public nuisance” theory of liability assaults the First Amendment’s protection for commercial speech. This theory does not require that the plaintiffs show harm or reliance resulting from alleged speech. Promotion itself of a product later found to be hazardous is sufficient to create liability. If speech can lose its constitutional protection retroactively, based on later-discovered facts that do not negate the truth of the speech when uttered, protection for commercial speech is nugatory. Stripping speech of its First Amendment protection based on a retroactive assessment of its truthfulness (based on information that was not available when the speech was uttered) is bound to discourage all speech, whether clearly controversial or apparently innocuous. The First Amendment is designed to encourage both.

 

Status:

On October 15, 2018, the Supreme Court denied certiorari. 

Date Originally Posted: August 17, 2018

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