I don’t think it’s fair to call the post misleading. After all, judgments, not opinions are what count. And here, no matter the reason, 11 judges of the Ninth Circuit said no to some do-gooder regulation.–that’s remarkable.

I agree with Mr. Olson’s assessment—that there will be appeal, and they’ll just dial it back a bit.

SF does, in my opinion, have the power, notwithstanding the First Amendment, to require warning labels on “sugary” drinks. And I don’t know that they have to be consistent, i.e., not requiring it on orange juice, but requiring it on Coca-Cola.

The problem, ultimately, is that SF doesn’t seem to care that there is a First Amendment. Whether that justifies courts’ taking a more skeptical eye at regulation is a knotty question.

Fair enough, but it seems likely that it will take some other future case (perhaps if SF re-enacts its ordinance to make it less aggressive) for the high court to review such fast-and-loosery. I find it hard to believe that the city would seek certiorari over this loss and thus invite a considerably more damaging rebuke at the high court.