Warning sign for the First Amendment: safety signs unconstitutional?

PSEG Long Island LLC v. Town of North Hempstead, No.
15-cv-0222 (E.D.N.Y. Feb. 3, 2016)
Around the country, construction companies and similar
businesses are routinely required to post warning signs of various sorts in
order to proceed with their work.  Here,
the court holds that the First Amendment requires such sign requirements to
survive strict scrutiny, because they compel speech and aren’t triggered by
associated commercial speech; thus it’s not a commercial speech
disclosure.  It’s a troubling holding,
and could have benefited from some consideration of, among other things, Robert Post’s
useful work on the matter
 (link is to just one of his works).
The facts: North Hempstead, arguably for bad motives,
required public utility providers to post warning signs on wooden utility poles
that have been treated with certain chemical preservatives.  In 2014, PSEG (through LIPA, an entity that
is its public face) began replacing 23 utility poles in the town.  Wooden poles 40-45 feet high were replaced
with similar poles having a height of 80-85 feet, in order to accommodate a
higher-power transmission line.  Both the
shorter outgoing poles and the taller incoming poles were pre-treated with a
wood- preserving chemical known as Pentachlorophenol (penta).  Town officials objected to the appearance of
the new poles.  A report by a
hydrogeologist named described testing of Penta-treated utility poles in the
Town of East Hampton, and of a sampling of the soil adjacent to those poles. A
cover letter said:
The results indicate that
significantly elevated concentrations of penta were detected in the soil at
both shallow and deep locations at two of the three poles. . . . The penta
concentrations at [these] Poles [ ] ranged in concentration from 29,900
micrograms per kilogram (mcg/kg) to 250,000 mcg/kg. These concentrations
represent significant exceedances of the 
New York State Department of Environmental Conservation 6 NYCRR Part 375.6
Unrestricted Use Soil Cleanup Objective for penta of 800 mcg/kh.
The use of penta was banned in 26
countries. It was widely used in the United States until it was banned for
public use by EPA in 1987. Its use in the United States is now limited to wood
preservation of utility poles and railroad ties. The presence of penta on the
poles and in the soil in the vicinity of the poles appears to represent a
significant risk to human health and the environment.
As stated previously, the EPA
considers penta highly toxic and, therefore, its presence on utility poles
presents an inhalation and ingestion risk. Its presence in the soil presents a
dermal contact, ingestion, and inhalation risk. At the poles where penta is
present, there is also a high potential for the penta to leach downward through
the soil and contaminate the groundwater.
The hydrogeologist’s recommended precautions included:
installing fencing around the poles to prevent incidental contact by children,
pets, and wildlife; installing placards to warn residents not to touch or
otherwise make contact with the pole or the soil in its vicinity; notifying
residents in the area of the potential hazard associated with the new poles;
and instructing them to avoid the new poles to prevent inhaling or ingesting
the chemical.
The town suggested that PSEG affix warning signs to the
poles.  PSEG rejected this suggestion,
though its website contained information about penta, including a “Penta Poles
What should I do if I come into
contact with a Penta treated wood pole?
Common sense care should be taken
to limit prolonged skin contact with Penta treated poles or the soil at the
base of the pole, just as care should be taken to limit exposure to other
products containing pesticides like household garden and insect sprays. Avoid
prolonged direct contact with Penta treated wood poles and wash hands or other
exposed areas thoroughly.
Thomas B. Johnson, Ph.D., a research scientist in the Bureau
of Toxic Substance Assessment of the New York State Department of Health, wrote
a letter to James Tomarken, MD, the Commissioner of the Suffolk County
Department of Health Services.  The
letter said (setting aside questions about its admissibility):
[P]eople would be unlikely to
contact soil near the poles with sufficient duration and frequency to result in
a significant risk for adverse health effects. To further evaluate exposure to
this soil, we examined the potential for acute (short-term) health effects in a
child who might sit at the base of a pole and eat some of the soil. Even at the
highest pentachlorophenol soil concentration reported in the April 22, 2014
Dermody Consulting letter (250 milligrams per kilogram of soil), the exposures
that might result from this kind of activity are well below exposure levels
that might cause health effects.
Regarding the health risks to
people who might, for example, put their hands on the utility poles, there is
ample scientific information to indicate that direct contact with pentachlorophenol
can irritate the skin and eyes. Therefore, it is possible that people who have
direct skin contact with a utility pole treated with pentachlorophenol-
containing product could experience skin irritation. However,  we would not expect frequent, routine or long
duration skin contact with utility poles.
The town ultimately passed a new rule with an explicit
legislative finding that “wood utility poles that are treated with hazardous
chemicals such as pentachlorophenol, creosote, inorganic  arsenic, 
or other similar chemicals constitute a potential danger to the public
and that the public should be informed of such potential danger.”  Thus:
In a line of utility poles, the
public utility shall post a sign on every fourth pole. The sign shall be posted
in a conspicuous location at least four feet and no more than five feet from
the base of the pole. The sign shall contain the following warning: “NOTICE –
MADE.”   The sign shall be oriented
towards pedestrian traffic wherever possible. The text of the sign shall be of
a font size that is no less than 36 point. The text of the sign shall be black
on a white background.
This provision defined the term “hazardous chemical” as
“[a]ny chemical compound used as a wood preservative to treat wood utility
poles to protect them from fungal decay and wood-destroying pests.”
A scientist with 28 years of experience in environmental
consulting, environmental and analytical chemistry, and undertaking human and
ecological risk assessments, opined that the Town did not perform an adequate
assessment of the risk posed by the Penta-treated utility poles, failing to use
EPA-approved methods and reaching a conclusion about risk that was contrary to
the EPA’s own findings that “assuming all pentachlorophenol exposure results
from pentachlorophenol treated poles . . . the total risks result in no unreasonable
adverse effects from the currently registered wood preservative use.”  Although the Town didn’t dispute these
findings, it offered contrary information from the National Pesticide
Information Center, which stated that Penta is “considered a probable human
carcinogen and exposure to high levels can also have other health risks.”  (There were similar factual issues with
another wood preservative, chromated copper arsenate, also implicated by the
PSEG also submitted evidence that approximately 60 million
chemically-treated wooden utility poles were in service across the United
States.  In addition to the 23 utility
poles at issue in this case, PSEG also owned more than 25,000
chemically-treated utility poles throughout the Town, to which warning signs
would also have to be added, at great cost. Also, PSEG submitted evidence that
there were a number of wooden structures, other than utility poles, treated
with similar chemical compounds and involving higher risks of extended human
contact, such as dock walkways comprising wood flooring, guard rails, and hand
rails.  The Town did not require warning
signs for these.
The court noted that the right not to speak is highly
protected by the First Amendment, except in the commercial speech context.  The court first noted that the facts of this
case weren’t similar to other cases that it or the parties had identified.  (In part this is because it is such a radical
argument—lots of companies have disagreed with lots of safety warnings, but
it’s only in recent years that First Amendment compelled speech arguments
against them became “on the wall,” to borrow a phrase.)  However, the court looked at common
definitions of commercial speech as speech proposing a commercial transaction,
or speech related solely to the economic interests of the speaker and its
National Electric Manufacturers Association v. Sorrell, 272
F.3d 104 (2d Cir. 2001), upheld a Vermont statute requiring manufacturers of
mercury-containing products to place labels on their packaging to inform
consumers that the products should be recycled or disposed of as hazardous
waste. The law was intended “to better inform consumers about the products they
purchase” and was thus “inextricably intertwined with the goal of increasing
consumer awareness of the presence of mercury in a variety of products.”  Commercial speakers had no fundamental right
not to disclose truthful information about their products.
By contrast, Safelite Group v. Jepsen, 764 F.3d 258, 264 (2d
Cir. 2014), struck down a Connecticut statute that prohibited insurance
companies and claims administrators from referring insureds to affiliated glass
companies for repairs, unless they also gave the name of a competing glass
company in the area.  Forcing Safelite to
promote competitors deterred commercial speech without furthering consumer
information goals:
The law does not mandate disclosure
of any information about products or services of affiliated glass companies or
of the competitor’s products or services. Instead, it requires that insurance
companies or claims administrators choose between silence about the products
and services of their affiliates or give a (random) free advertisement for a
competitor. This is a regulation of content going beyond disclosure about the
product or services offered by the would-be speaker.
From these precedents, the court here concluded that, “in
order to qualify as commercial speech, the message sought to be regulated must
necessarily bear some discernible connection to the commercial interests of the
speaker.”  The mandated warning signs
here weren’t commercial speech under that standard, because they bore “no
discernible relationship to the Plaintiffs’ products, services, or other
commercial interests.”  The signs didn’t
propose a commercial transaction, and PSEG was a local monopoly with no
competitors, which is why it doesn’t bother to promote the sale or transmission
of energy.  And even if they did, “the
warning signs would serve no commercial purpose in an open market for
electricity because they relate solely to the chemical treatment of the utility
poles, which the Plaintiffs neither make nor sell.”  Nor could the information cause consumer
behavior in terms of purchasing electricity to change.
Comment: what a bizarre conclusion.  The poles transmit
the energy, and (at least as found by the relevant legislative body) pose some
health hazard.  In order to provide the
service, then, PSEG uses the poles—it’s not like PSEG erected them for some
reason unrelated to the provision of the electricity it sells.  Indeed, as the court pointed out for other
reasons, the poles are used instead of underground lines because that makes the
electricity cheaper.  The poles are an
integral part of the service PSEG sells. 
Although the poles aren’t sold to customers, so what?  The electricity provided via the poles is. 
Under this reasoning, here are other things that should also
be subjected to strict scrutiny (and probably fail, given the analysis applied
below): regulations requiring that delivery trucks bear clear markings warning
consumers to stay back, as applied to a company that delivers vegetables to
grocery stores and doesn’t sell trucks. 
Regulations requiring construction companies to post warnings to
passers-by about watching for falling material and staying back from the
construction site, as applied to construction companies that only build big
projects.  Regulations requiring
airplanes (or for that matter commercial buildings) to have clearly marked
exits and other safety information. 
The court thought that it mattered that “it appears to be
wholly immaterial to Chapter 64B’s objective that the wooden poles happen to carry
electric transmission wires, or any commodity for that matter.”  True, but so what?  If the problem is caused by the delivery
method, then the regulation makes sense applied to anything using that delivery
method, just as with required markings on delivery trucks.  And the electricity is in fact both carried
via the poles and sold into the market. 
Obviously, the real problem with this regulation is that it is, on the
evidence, both burdensome and not particularly well-justified in singling
utility poles out for the burden.  But
that’s Lochner.  The legislature is generally allowed to make
stupid laws—unless the plaintiff succeeds, as here, in using the First
Amendment to resurrect Lochner.
Likewise, the court found the information required to be
disclosed—that people who come into contact with the pole should wash their
hands—unconnected to the economic interests of PSEG or the people reading the
signs.  First of all, the “solely” part
of “expression related solely to the economic interests of the speaker and its
audience” could never be taken literally, because advertising is almost always
about non-economic interests, aka preferences—my preferences for cereal that
tastes good, or coffee that is sustainably harvested, or ice cream made by
crunchy Vermont liberals.  PSEG’s
interest in having the poles is
solely commercial: the poles enable it to sell electricity at a price less than
it would have to charge without poles. 
True, it’s not speaking at all via the poles until required to make the
disclosure, but that just means that this particular framing of the commercial
speech test doesn’t work, not that the poles are noncommercial speech or that
PSEG’s silence on the matter is noncommercial silence.
(As for the bit about there’s no possible change of consumer
behavior here, and the court’s related point that consumers don’t have a choice
about getting their electricity from the local monopoly, consider this: the
Court in Central Hudson and Virginia Pharmacy defended truthful
commercial speech as useful to consumers both in helping them find the products
they wanted and in helping them make decisions about important matters of
economic regulation.  To the extent that
the signs inform consumers of the danger of preservative-treated poles, they
definitely help people make decisions about the relative value of cheaper
energy and utility poles v. more expensive energy and underground wires.  Most likely, most people will choose to live
with the tradeoff.  But it’s still information
that is potentially relevant to them.)
Having found that this wasn’t commercial speech, the court
quickly determined that it wasn’t government speech either, because the
government wasn’t the speaker and wasn’t appropriating public funds to transmit
its message through private speakers.
With that out of the way, strict scrutiny applied.  Even assuming that the risk of exposure to
the poles constituted a compelling government interest—something the court
seemed dubious about—there were less restrictive means of addressing the
problem, such as signs on public property or a public education campaign funded
by the Town itself.  The Town’s argument
that this was less likely to reach people who were about to lean on poles was
insufficient to survive strict scrutiny. First, the Town didn’t prove that
warning signs were most likely to be effective; common sense wasn’t  enough to justify the Town’s argument.  Plus, the Town failed to explain why it
didn’t choose less restrictive means, such as creating and displaying the same
warning signs on any and all Town property, “of which there is far more than
the 23 privately-owned utility poles at issue in this case.”  It could also send mail to residents about
the issue.
H/T Mark McKenna.

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