By: Ross Sempek

If you’ve read my posts (thank you, BTW), you’ve probably noted that I tend to focus on heavy topics: societal control, privacy violations, unwarranted surveillance. So while there is an unlimited amount of contemporary fodder for my traditional interests, I thought I would do something different. Something with a little more levity and an unassuming applicability to intellectual freedom. That’s right, you guessed it: commercial speech. I know it sounds dull, but it’s truly fascinating to me, and here’s why – within intellectual freedom we tend to hone-in on the expansive free speech rights engendered by our constitution. Great stuff, but what we are inclined to overlook are the legal limitations on free-speech – little of which gets applied to our individual liberties.

Commercial speech is under much more scrutiny when it comes to the truth, like…facts, ‘n stuff. Understandably so since the coercion of consumers garners more government interest than the practices of salespeople whose job it is to capitalize off of contextualizing information that makes their product seem superlative. This burden of proof necessitates many restrictions on commercial speech, and what’s intriguing to me is the way advertisers get around the “truth” by using ambiguous or misleading language. When I worked in retail, for example, I would see jewelry advertised as “10.0% silver.” Sly move, jewelry co., but I see that decimal point, and your crappy earrings. Much of this speech skirts stating truth by instead communicating what’s not untrue. And to do so within the confines of legality is nothing short of acrobatic; it involves information literacy, expected hyperbole (World’s best cup of coffee! Great job everybody!), and weaponized censorship.

It’s this latter facet of commercial speech that piqued my interest this past week while listening to a story about the vegetarian food industry’s use of a meat-based lexicon. My local NPR station, Oregon Public Broadcasting, ran a story about this topic which centralized around the Hood River-based company, Tofurky. But while your vegetarian grandma’s disappointing Thanksgiving dinner was the crux of this conversation, the national (and international) legal landscape for veg companies such as these is becoming uncommonly restrictive. I would apologize for the puns within this article, but they really help to flesh-out the narrative.

Meat industry bigwigs claim that using verbiage traditionally associated with animal products misleads consumers who would be indignant to learn that soyrizo, black-bean burgers, or tofu-dogs were actually *gasp!* meatless. So Tofurky and the ACLU are fighting back against industry giants (and, specifically, Arkansas) whose aim, they say, is to strip their right to free commercial speech so they must rely on less-appealing words to describe their products. This has huge implications for the veg food milieu and their potential profits, as well as their market-share of the commercial landscape.

When it comes to commercial speech, it turns out that the US Supreme Court uses a four-pronged line of reasoning, dubbed the Central Hudson test, to determine whether or not said speech is in violation of the law. According to Freedom of Speech and Press: Exceptions to the First Amendment, the four prongs are:

• whether the commercial speech at issue is protected by the First Amendment (that is, whether it concerns a lawful activity and is not misleading)
• whether the asserted governmental interest in restricting it is substantial. “If both inquiries yield positive answers,” then to be constitutional the restriction must:
  • “directly advance [ ] the governmental interest asserted,”
  • be “not more extensive than is necessary to serve that interest.”

However, this test isn’t an umbrella that covers all speech with commercial value. Applying these standards to novels, plays, and other forms of speech-made-profitable doesn’t apply. The limitations of commercial speech have to do with how the veritable qualities of a product susses-out in the real world. If a self-help book publisher were to claim that by reading its book you could eradicate your depression, then that might not be legally protected speech. However the book itself remains protected. Thus, consumers can rely on their autonomy to come to conclusions about the efficacy of a product.

So these veg companies make products that look and taste like meat – this in itself can’t be legally challenged since it would be a draconian restriction in a capitalist free-market. What can be challenged is the language the companies use to describe said products. But even so it’s remarkable that we’ve gotten this far. Especially considering that since 1993 no commercial speech has been successfully deemed illegal by the Supreme Court. The legislative odds favor the veg companies retaining their right to speech, yet this trend indicates a precipitous shift toward the US government valuing industry-led censorship over consumers’ self-determination.   

A reasonable person can recognize the difference between vegetarian and meat-based products, and it’s not as if they are poaching proprietary words. No one owns the words burger, patty, or sausage. And even if consumers do feel deceived by meat-like titles, the damages that ensue are negligible. Ostensibly the product is edible, and upon the consumer having a meat-piphany it can be shown in plain language that the product they bought was, in fact, not meat. A caveat emptor, but not something that necessitates a legislative coddling of consumers. Give us a little credit here. You think meat-eaters don’t already have their favorite brands? Why would they gamble with some product they saw in the produce section? What’s more, the crux of the argument against purveyors of fake-meat assumes the intent to deceive consumers, yet it’s corporate bodies such as the National Cattlemen’s Beef Association that support such measures. It is also interesting to note that these products have been on supermarket shelves for quite some time. So the current legislation isn’t an indication of the lethargic pace of law-making, rather it is an indication of the rising popularity of these products. What I can reason from these observations is that this to-do is not actually about commercial speech at all; it’s about the potential for the meat industry’s waning profitability.   

As the NPR article notes, the meat industry is looking at this legislation as a step in a long-game for its future battle against lab-produced meat. It’s a preemptive strike to fight the proliferation of petri-dish meat products. And if the growing popularity of plant-based “milk” is any indication, then this industry is in for a fight. So instead of meat companies altering their commercial practices, they want to neutralize the threat. Classically capitalist, but as it’s inferred in the article, consumers are the ones who ultimately wield the power of the purse. This may be a seminal moment for commercial speech, and I can see why Tofurky is fighting this. With the Arkansas law slapping a perpetrator with a maximum of $1000 per violation, prolific veg companies such as these stand to lose massive amounts of capital…all because of institutionalized censorship.

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Ross Sempek is a recent MLIS graduate and a Library Assistant at the Happy Valley Public Library just outside of Portland, Oregon. He comes from a blue-collar family that values art, literature, and an even consideration for all world-views. This informs his passion for intellectual freedom, which he considers to be the bedrock for blooming to one’s fullest potential. It defines this country’s unique freedoms and allows an unfettered fulfillment of one’s purpose in life. When he is not actively championing librarianship, he loves lounging with his cat, cycling, and doing crossword puzzles – He’s even written a handful of puzzles himself.