Last week, Judge Seibel dismissed a First Amendment challenge to a Dutchess County law requiring retail supermarkets to clearly post prices on each item using a sticker, tag, or other label. The plaintiff claimed that changing the price tags on items each time the store held a sale was an improper burden on the store’s First Amendment free speech rights. Judge Seibel disagreed – and questioned whether price tags on grocery items constituted speech at all.
Even if the price tags implicated the First Amendment, Judge Seibel noted that laws requiring the disclosure of factual consumer information are routinely upheld under the more lenient standards applied to the regulation of commercial speech. She also rejected the plaintiff’s argument that the legislative intent (to encourage price disclosure via tag or label) had become pretextual and served only to create an additional burden in an age of computer-based checkout machines. In doing so, Judge Seibel noted that a First Amendment claim is not the proper way to address a law that has outlived its usefulness:
Similarly, Plaintiff argues that the legislative intent is now pretextual, and that the true reason for the continued enforcement of the law is to collect penalty payments and force retail food stores to employ more people. This argument does not help Plaintiff to state a claim . . . . Plaintiff provides no authority, and the Court has found none, for the proposition that in conducting First Amendment rational-basis review, a court should disregard the legislature’s initial, rational intent and instead inquire whether the passage of time has rendered its reasoning less powerful. Indeed, if a statute that had a rational basis for its enactment were subject to challenge and possible judicial invalidation whenever a plaintiff, or a judge, believes it has outlived its usefulness, that would be the sort of legislation from the bench that is widely and rightfully condemned. Once a law is enacted and passes constitutional muster, it is the political process that must change it if its costs no longer exceed its benefits, at least where, as here, its continued enforcement is not arbitrary or irrational.