D.C. Circuit In (Irons?) Footnote Calls For En Banc Review

March 31st, 2014

In a commercial speech case concerning the First Amendment implications of a labeling requirement, we see this footnote by Judge Williams, joined by Chief Judge Garland and Judge Srinivasan:

Finding that Zauderer is best read as applying not only to mandates aimed at curing deception but also to ones for other purposes, and that neither Reynolds nor NAM represents a holding to the contrary, we adopt that reading, with the incidental advantage of avoiding the creation of a split with the First and Second Circuits.1

We recognize that reasonable judges may read Reynolds as holding that Zauderer can apply only where the government’s interest is in correcting deception. Accordingly, we suggest that the full court hear this case en banc to resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate that compels firms to disclose purely factual and non-controversial information.

This seems a shoe-in for en banc review.

Update: Adam White notes that this may be a proposed Irons Footnote. From the D.C. Circuit’s “POLICY STATEMENT ON EN BANC ENDORSEMENT OF PANEL DECISIONS” (1/17/96):

As the court has long recognized, see, e.g., Irons v. Diamond, 670 F.2d 265, 267-68 and n.11 (D.C. Cir. 1981), cases occasionally arise in which action by the court en banc may be called for, but the circumstances of the case or the importance of the legal questions presented do not warrant the heavy administrative burdens of full en banc hearing. The members of the court continue to subscribe to the view that, provided that certain safeguards are maintained, a panel of the court may seek for its proposed decision the endorsement of the en banc court, and announce that endorsement in a footnote to the panel’s opinion.

That is, the panel had suggested an Irons footnote, but not an actual Irons footnote that has been endorsed by the entire en banc court.