Vaporizing Censorship at the Oregon Supreme Court

Paul Bates faced a real pickle: the products at his Oregon vape shop were perfectly legal to sell, but for baffling reasons, the government barred him from accurately describing them to his customers. With the help of the Goldwater Institute, Paul fought the unconstitutional restrictions in court—and won. But the case isn’t over yet.

The state appealed, so now Paul’s case is headed to the state’s highest court. On Oct. 8, attorneys from the Goldwater Institute will appear before the Oregon Supreme Court to defend one of the most basic rights protected by the Oregon Constitution: the freedom of speech.

At the heart of this case is a state law that bans e-cigarette businesses from using any packaging that the Oregon Health Authority (OHA) arbitrarily deems “attractive to minors.” Shortly after the law was enacted, the OHA issued a sweeping list of prohibited terms—words and phrases ranging from “cool,” “lit,” and “poppin’,” to “tart” and “tangy.” The state even forbids packaging from including flavors like “strawberry” and “apple,” even though those words are just factual descriptions of products that are legally sold to adults.

In practice, this has forced Paul and his employees to put censorship stickers over the flavors on his product labels. It’s a clear violation of free speech. What’s more, it does nothing to protect minors (who are already barred by law from buying these products or entering the stores that sell them), but harms business owners and consumers who rely on truthful information to make informed choices. In fact, Paul says many of his customers have used e-cigarettes to kick their real cigarette habits.

Oregon’s constitution, like many other states, recognizes that business owners are just as entitled to free speech as other Americans, and that “commercial speech” is critical not only for the business owners, but their customers, too.

After the Goldwater Institute sued on behalf of Paul and his business, the Oregon Court of Appeals ruled in their favor, recognizing that the government can’t ban lawful businesses from truthfully describing their products. The court struck down Oregon’s law, holding that the state constitution prohibits this kind of censorship of product packaging.

Now, the Oregon Supreme Court will have the final say. This will be the seventh state supreme court in which the Goldwater Institute has stood up for individual rights and government accountability. And just like in Arizona, Tennessee, and other states where we’ve fought and won, we’re confident that the Oregon Supreme Court will recognize that free speech doesn’t stop at the door of a law-abiding small business.

Read more about the case here.

John Thorpe is a Staff Attorney at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.