This paper proposes a principled means to resolve these questions by drawing on an innovative behavioral-science theory called Cultural Cognition to provide a system for categorizing forced commercial-speech regulations. By establishing which test applies to determine whether regulations violate the First Amendment, this framework should help bring consistency and predictability into a murky area of First Amendment law.

To combat this problem and promote public health, Congress enacted a federal menu-labeling law, which requires that restaurants post calorie information next to menu offerings. The constitutionality of this law has yet to be tested in court. But New York City’s law, enacted prior, has survived First Amendment scrutiny.

Like New York’s menu-labeling law, the federal law should withstand a First Amendment challenge. Though the federal law affects commercial speech, it is a reasonable means for accomplishing a legitimate government interest—the reduction of consumer deception and the promotion of public health. The skinny on the federal menu-labeling law is that it is an appropriate means to inform patrons’ menu choices at restaurants and help shrink America’s waistline.

To this end, Part II identifies the various harms that reality programming causes and argues that participating in reality programming is detrimental both to the individual children and to society. Part III surveys the current legal landscape by examining the federal law on point--the Fair Labor Standards Act--and numerous state laws, focusing heavily on those states with historic ties to the entertainment industry. Part III concludes that the current legal regime is unable to remedy this emerging problem and argues that state law is not the best vehicle to do so. Part IV posits that a national solution is necessary, canvasses the options, and then argues in favor of a federal statute providing a sliding scale of prohibition for children in reality programming. Finally, Part V maintains that such a statute will not violate the Constitution because it is within Congress’s Commerce Clause authority and violates neither parents’ due process rights nor the First Amendment.

Children deserve to experience the full richness of childhood and not to labor as spectacles for public amusement. A federal statute regulating employment in reality programming would prevent the sale of children’s privacy to the highest bidder.

Dayna B. Harmelin

Abstract

As the gun-control debate rages on, many states have begun enacting laws to protect individuals’ rights to store their guns in their vehicles while at work. These “guns-at-work” laws limit employers’ ability to prevent employees from storing their guns in their vehicles on employer property.

At least two courts have considered the legitimacy of these laws. One found the laws preempted by the Occupational Safety and Health Act of 1970 (“Act”), which was enacted to promote worker safety. The Northern District of Oklahoma held the laws create an obstacle to and conflict with the Act and cannot stand. The Northern District of Florida disagreed, finding an express provision in the Act permits states to regulate in this area.

In the face of numerous states enacting these laws, this article explores whether they are preempted by the Act and concludes they are not. Part I provides a preemption overview. Part II analyzes the Act including the specific relevant provisions. Part III surveys the various guns-at-work laws and provides a chart revealing noteworthy patterns. Part IV argues these laws do not conflict with the Act. Finally, Part V contends preemption requires promulgation of standards in accordance with the Act and maintains clear standards should be promulgated to address the issue.

The Occupational Safety and Health Administration may not continue to sit on the sidelines refusing to solidify its position on this contentious clash of workers’ safety and gun-owners’ rights. This dispute should be resolved by OSHA in accordance with the Act and not by the courts through preemption.