It appears that various conservative news analysts are miffed at the children's film Happy Feet for failing to disclose to parents that it contains a message about the harmful effects of human activity on penguin habitat in Antarctica. "An animated version of An Inconvenient Truth" is how at least two such analysts described the film. Contained within this preposterous complaint is an actual interesting legal question about regluation of speech.
The particular complaint is preposterous, of course, because Happy Feet is no more (or less) a message movie than standard children's fare. Pocahontas (noble savage), Finding Nemo (persevere for family), Shrek & Shrek 2 (it's inner beauty that counts), and the Lion King (lions good, hyenas bad) (okay, maybe not the Lion King), contain messages. Indeed, even the penguin flick much beloved of the right, March of the Penguins, was political in its failure to address global warming as a threat to the penguin way of life. To be sure, I haven't yet seen Happy Feet. I'll have the pleasure of accompanying my eager daughters to view it tomorrow, and if it turns out that the film is appreciably more political (a kind of Fahrenheit -11, if you will), I'll recant afterwards. Don't hold your breath.
Meanwhile, the interesting legal issue is when, if ever, the government can require labeling of speech on truth-in-advertising grounds. In the 1987 case of Meese v. Keene, the Supreme Court upheld a federal law classifying as "political propaganda" material produced by foreign governments. The case was decided by a 5-3 margin, with Justice Stevens, then not yet a reliable liberal, writing for the majority, and I regard the decision as highly problematic. But even if one thinks, as I do, that Meese v. Keene was wrongly decided and that any government effort to label Happy Feet as political propaganda would violate the First Amendment, there are stronger cases for requiring disclosures. The FTC regularly and appropriately regulates the content of speech known as advertising, for example. Arguably, an intermediate case may be presented by Kevin Trudeau's run-ins with the FTC. Trudeau is the author of a book of "Natural Cures 'They' Don't Want You to Know About," to which the FTC objected on the grounds that his "cures" were in fact, well, not cures at all. What makes Trudeau's case a bit tricky is that it involves the double regulation of speech: Not only is the FTC going after what Trudeau says to sell his product, but the product itself, a book, is speech.