JURIST Guest Columnist Ruthann Robson of the CUNY School of Law argues that requiring manufacturers to label clothing as “sweat-free” is feasible under the First Amendment…

Buying a shirt is an ethically fraught endeavor. This is nothing new: the production of clothes has long been interwoven with slavery, indentured servitude, “wage slavery,” immigrant labor, and child labor. But domestic change did occur, albeit gradually and incompletely, despite powerful forces of resistance. Today, regulation of working conditions, while still contested in specific instances, is legal orthodoxy.

Global free trade, however, is a reiteration of the once-dominant domestic acceptance of complete laissez-faire. Just as we once believed there was no national power to regulate state and local working conditions, we now accept that there is no national power to regulate foreign working conditions. It is possible, although unlikely, that the US could use trade policies to address situations such as the Rana Plaza building collapse in Dhaka, Bangladesh that killed over 1,000 people, almost all of them garment workers.

Instead, it is more comfortable to exhort consumers and corporations to be “ethical.” Yet, even this exhortation is wedded to legal action. The ability to be ethical, even if we agreed about what that might mean, is stymied by the lack of information about the clothes we wear.

In 1918, the US Supreme Court revealed the heart of this problem in Hammer v. Dagenhart. In striking down the Keating-Owen Act curtailing child labor, the Court accepted the argument of the Southern Cotton Manufacturers that there was nothing inherently “evil” in the textiles children milled. Retrofitted to a federalism argument, the Court contrasted the “evil” of a lottery ticket in the earlier Champion v. Ames (the “Lottery Case”) with the “child-made goods” in Hammer that were themselves “harmless.” Indeed, a person buying such textiles would not be able to discern the conditions of their manufacture.

For consumers in 2013, this obstacle persists. The current labels reveal little, even when they purport to identify the country of origin. Instead, the law should require retailers to certify that each item of apparel offered for sale is sweat-free, or to disclose by a prominent label that it is not, and thus provide consumers with the type of information they require to exercise ethical choices.

Corporations would undoubtedly challenge any such regulations, including arguing that the labeling is compelled speech in violation of the First Amendment. Although commercial speech is less highly valued than political speech, this argument has achieved varying levels of success in assorted circumstances involving labeling requirements.

Take cigarette packages. For almost half of a century, Congress has required tobacco products to include a label that cigarette smoking can be harmful to one’s health. While the label has changed over the years, recent attempts to require more graphic labeling provoked challenges by tobacco companies. In R.J. Reynolds Tobacco Co. v. Food & Drug Administration, a divided panel applied the intermediate scrutiny standard to commercial speech, but nevertheless held that the government did not meet its burden of showing that the graphic warnings would accomplish the purpose of reducing smoking.

In a case awaiting a ruling from the Second Circuit for over a year since oral argument, at issue is New York City’s Local Law 17 requiring pregnancy services centers to disclose whether they have medical personnel and whether they make referrals for abortion or emergency contraception. A district judge held that the fact that Local Law 17 mandated only factual disclosures did not save it from strict scrutiny and held it unconstitutional in Evergreen Association v. City of New York [PDF]. And in a case currently being litigated in the US Court of Appeals for the DC Circuit, the National Association of Manufacturers and other trade groups challenge a provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act requiring disclosures of the use “conflict minerals:” tin, tantalum, tungsten, and gold in SEC filings. The argument is that these disclosures would not necessarily impact the conflict in the Democratic Republic of the Congo.

Central to these and similar controversies, such as those involving the labeling of genetically modified food, is not only the question of government’s ability to interfere in laissez-faire economics, but the government’s power to persuade and inform consumers. Perhaps persuasion is too much, but information is certainly not. Requiring labels on garments that provide the necessary details of their production should survive the First Amendment under the doctrines of commercial, and even compelled, speech.

Today, we cannot determine how our clothes were made. Before we can choose to be ethical consumers, we require more information on our labels.

Ruthann Robson is Professor of Law and Distinguished Professor at the CUNY School of Law in New York City, NY. She is an expert on constitutional law and sexuality issues and is the co-editor of the Constitutional Law Professors Blog. Her forthcoming book, Dressing Unconstitutionally: Hierarchy, Sexuality, and Democracy, considers legal issues surrounding clothes, including their production.

Suggested citation: Ruthann Robson, Mandating Sweat-Free Garment Labels: Feasible Under the First Amendment, JURIST – Forum, June 10, 2013, http://jurist.org/forum/2013/06/ruthann-robson-clothing-constitution.php