Tonight in Con Law we started on nonverbal conduct as speech warranting First Amendment protection and finished up the classes of speech that can be regulated with a quick overview of commercial speech.
Because one of the examples our professor used as a permissible regulation was burning things in your fireplace, I got to thinking on the way home about Subway.
You know what I’m talking about. Subway bakes its own fresh bread. If you walk by one of their restaurants at various times during the day your nostrils inhale that sweet, sweet smell of fresh baked bread. I swear it’s not really bread baking but a commercially produced scent that they vent into the air. Either way, it’s gotten me thinking about whether a city could regulate the release of such wondrous odors into the air.
Initially I’d think the answer is yes, but I’m interested in taking my learning for test-drive here. Feel free to critique. Could Subway argue that it is engaging in a constitutionally-protected form of commercial speech?
Now I’m just taking my learning for test drive here, but to do so I think because it is not actually using verbal or written words, Subway would need to argue that such nonverbal conduct was intended to communicate a message and that its audience understood Subway to be communicate some sort of message.
Then Subway would need to show that the ordinance was related to supression of the company’s intended expression. To show that Subway would argue that the city’s interest – presumably preventing the use of undue influence over unsuspecting passers-by who can’t help but stop and buy a $5 footlong – is threatened by the communicative impact of the expression. Here, Subway would say that the intended impact is to tell potential customers they can expect fresh baked bread, certainly a major selling point for choosing to eat there.
Assuming we got that far, the speech at issue would need to be inviting the audience to enter into a commercial transaction with Subway. The restaurant’s stated intent is to create a more welcoming atmosphere for its customers so as to make money. That seems pretty clear-cut to me.
Next, the court would be unlikely to uphold a blanket ban on such speech if, indeed, it is inviting customers to enter into a lawful commercial transaction. As far as a I can tell, there’s no law against eating a Subway sandwich. (Though one could argue that the Chicken Bacon Ranch on wheat is so good it should be illegal.)
So the city would need to argue that its limited ban on certain bakery-induced emanations from culinary establishments create some sort of harm that the city is justified in remedying. Specifically the city would need to argue that it has enacted a narrowly tailored ordinance that directly advances a substantial interest.
The substantial interest can’t be such that it seeks to save consumers from themselves, but could include preventing minors from smoking or preventing deception by attorneys marketing legal services, for instance. This ordinance would likely be struck down on this point. But for sake of argument, let’s say it’s not.
To directly advance a substantial interest the ordinance would need to materially alleviate the harm. I’m not sure there’s even a real harm here, unless the city has developed a body of research that suggests that odors contain a harmful chemical or is otherwise harmful by, let’s say, inducing consumers would otherwise avoid buying a sandwich at Subway into buying sandwiches thus creating vast financial and health problems in the area because there’s no way to resist the temptation. (Kind of like The Colonel with his wee-beedy eyes and his secret addictive ingredient.)
We’re really reaching now on the narrow tailoring issue, but the city could argue that it has made a reasonable request of Subway to combat what is either deceptive marketing practices or the cause of childhood obesity and diabetes. Though if we assume that Subway is deliberately venting this odor into the air who’s to say the ovens don’t naturally give off such scents, making any effort to completely curtail the release of such odors into the air nearly impossible without designing a specialized oven and airtight restaurant.
So, in my brief and admittedly rough sketch here, Subway could probably prevail on a claim against such an ordinance. Anyone care to take another view?
No related posts.
I can’t engage the First Amendment arguments directly because at my school, you can take a 4-hour Con Law class and never even talk about the First Amendment.
That being said, let me put on my Scalia hat and answer with a resounding no. Of course, I should probably say “my originalist hat” because I don’t actually know what Scalia would say. But generally, I disdain the increasing propensity of the Court to expand the Constitution to the point that it no longer means what it says anymore. Calling the smell of bread “speech” is probably a good example of such absurdity.
Yeah, for some reason our class deals with speech and the First Amendment, but not the religion clauses. Strange.
Calling the smell of bread speech could indeed be absurd. This is a blog after all. But your point is well-taken. My post takes for granted that the current First Amendment jurisprudence is correct, or prudent, in assuming a rather expansive definition of conduct as constitutionally-protected speech. Specifically the actor needs to intend that the conduct be communicative and the viewer or onlooker understand that that the actor is being communicative. There is no consideration of the substance of the communicative conduct (i.e. that the conduct is attempting to communicate a political message or a commercial message and the like). That can be problematic primarily, in my estimation, to the extent that these decisions are being made apart from the democratic process.
I must say, though, that I’m not real sure of what an originalist definition of speech would be. In order to consider it in my analysis of regulation of Subway’s bread smell, it would be nice to know, for instance, whether the Framers would protect commercial speech and if any forms of conduct would be considered “speech.”
Even then, I’m not really convinced we should return to that definition, despite my originalist inclinations on many things. Assuming the original definition–to the extent we acertain it–is narrower than the contemporary one, the latter might be preferable in situations like this where we essentially establish a presumption in favor of protecting the speech in order to help private entities maximize economic opportunity and protect them from broad-reaching efforts to use government regulation to regulate, as an outlawed form of advertising, something as trivial as the smell emanating from an oven at a restaurant in order to suit some specious ends.
This is a case that kind of shows why a strict originalist interpretation flat out doesn’t work.
Marching on the steps and yelling “I hate the President!” would be protected.
Marching on the steps and ripping a picture of the president in half could not be protected?
What an utter nonsensical outcome.