Here’s another one via Jack Greiner. According to the Los Angeles Times, officials in Santa Clara County, California have passed an ordinance that prohibits restaurants from offering toys and other promotions along with meals that fail to meet nutritional guidelines adopted by the county Board of Supervisors.

This raises two questions.  First, does the inclusion of a toy or promotion in a kid’s meal constitute “speech?”  And second, if so, is this restriction on speech constitutional under the First Amendment?

As to the first question, the answer is probably “yes.”  When a restaurant selects a toy or series of toys to include in its kid’s meals, it constitutes a form of advertising.  Most advertising constitutes “commercial speech” under the First Amendment, which means that a court considering the constitutionality of the Santa Clara County law would apply the Central Hudson test:

Under Central Hudson, a government restriction on advertisements or other commercial speech is permissible only on a showing that (1) the advertising is misleading, (2) the government interest in regulation is substantial, (3) the regulation directly advances that interest, and (4) the regulation is not more extensive than necessary.

Under this test, the restaurants affected by this ordinance would probably prevail in making the argument for its unconstitutionality.

Public Enemy Number One?

So, ultimately, the question really comes down to whether a kid’s meal toy is a form of speech.  Although my initial hunch is that it is a form of speech, namely advertising, I imagine there are good arguments on the other side.  In any case, it will be interesting to see where this goes.  Although the founding fathers may never have envisioned the “Hamburglar” as the focus of serious constitutional inquiry, we may see courts wrestling with these issues in the future.

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