The opinion
NOONAN, Circuit Judge,
dissenting:
I accept the majority’s conclusion that the speech made criminal by this statute is commercial speech. I follow the doctrine of the Supreme Court that commercial speech is, ordinarily, more subject to state regulation than noncommercial speech. I have no doubt at all that untrue or deceptive advertising can be outlawed. I see no problem in the government prescribing precise labels for what cures our bodies or goes into them, or goes into a gas tank. But I have great difficulty in seeing this statute as anything other than a zealous and unconstitutional intrusion by a state government into an area where technologies are developing, the free play of ideas is important, and the free speech of everyone, including manufacturers and distributors, is essential to the development of a healthy environment. Tested by our Bill of Rights, the statute is defective.
*738 To begin with, several of the definitions imposed on manufacturers and distributors under criminal penalties are unconstitutionally vague. Three definitions have a common deficiency: the use of nature as an intelligible standard in an environment and economy where there is scarcely any “nature” independent of human intervention. “Ozone-friendly” and “any like term” (a bit of extra vagueness) are defined as a chemical or material that “will not migrate to the stratosphere and cause unnatural and accelerated deterioration of the ozone.” California Bus. and Prof.Code § 17508.5(a). What is unnatural deterioration of the ozone? How is unnaturalness to be determined? What state of the universe is assumed to be the natural state as far as ozone is concerned? The statute affords no guidance. It compels the advertiser to determine at the peril of criminal penalties that the product advertised does not have this elusive metaphysical quality-
Less obviously, because “natural” may seem less problematic than “unnatural,” but just as effectively, the statutory definitions of biodegradable and photodegradable are vague in their use of nature as the standard for the products advertised. To be biodegradable under the criminal law of California the product must be decomposable through “natural processes.” What is a “natural process”? Is it one in which there is no human intervention? Is the implicit assumption of the statute that nature is one thing and human activity another, so that if human intelligence intervenes the process is no longer natural? The same questions are latent in the definition of photodegradable in terms of ability to decompose by “physical processes, such as exposure to heat and light,” where “physical” is a stand-in for “natural.” The advertiser is left to speculate what degree of human intervention will sully the natural and so lead to noncompliance with the statutory command.
As for “recyclable” and “recycled”, what is recyclable should eventually be recycled. One would expect the definition of the two terms to be in tandem. The statute, however, adopts one definition of “recyclable” and another of “recycled”, so that what is “recyclable” will not necessarily be “recycled” when re-use is made. “Recyclable” has now been held to be defined in a fashion incomprehensible to a manufacturer or distributor of ordinary intelligence. Does striking it from the statute make “recycled” more intelligible by removing the statute’s inconsistency? Arguably, yes, although a lingering doubt remains about the surviving definition which in its origin was so flawed.
There is an additional flaw. “Recycled” is not completely defined by the statute at issue but by cross-reference to the Public Contract Code § 12200(b). The difficulty with this definition is as follows: For the regulation of commercial speech to be sustainable under the First Amendment there must be at least a reasonable fit between the statute and the state’s goal. United States v. Edge Broadcasting Co., — U.S. -, -, 113 S.Ct. 2696, 2703-05 , 125 L.Ed.2d 345 (1993). The Public Contract Code’s definition of “postcon-sumer waste” takes no account of the differences among the principal materials subject to recycling — glass, metal, paper, and plastic — nor the different technologies by which recycling of these materials may be accomplished. As the Environmental Protection Agency has observed: “it is not clear that a commonly accepted, sound basis exists setting content percentages across many products.” EPA, Request for Comments; Guidance for Use of the Term ‘Recycled’ and ‘Recyclable’ and the Recycling Emblem in Environmental Marketing Claims, 56 Fed. Reg. 49,992 , 49,996 (1991). In the statutory definition of recycled, the vagueness inheres not in the definition but in the fit between the definition and the state’s interest. At best it is a speculation that there is any connection between protection of the environment, encouragement of environmentally sensitive advertisers, and protection of environmentally conscious consumers and the blunderbuss definition of “postconsumer waste” which serves as a crude guide in public purchasing.
The statute has other constitutional infirmities. The district court noted that to avoid the reach of the First Amendment the words that the statute defined must be “sufficiently deceptive.” As to whether the words were in *739 fact “sufficiently deceptive,” the district court candidly acknowledged that it found “no easy answer.” The strongest thing the district court could say about the restricted words was that, without the state’s help, they were “potentially misleading.” To substantiate that characterization the district court cited a letter from the attorney general’s office to the governor which “opined” that there had been “an increase” in “questionable ‘environmental’ advertising.” No actual instances of deception were cited; the letter was written as advocacy for enactment of the statute. The district court also cited a letter from the sponsor of the legislation to the governor. This letter did indeed give two examples, one involving the use of “biodegradable,” the other of “recyclable.” The second example, however, led nowhere, because the district court removed “recyclable” from the statute; so that only one instance of one word, cited by a partisan of the statute and unproved in court, is the factual basis for the conclusion that all four words are potentially misleading. The true basis for this far-reaching conclusion, on which the majority opinion so heavily relies, is speculation. Speculation is no basis on which to support a criminal law licensing speech. Edenfield v. Fane, — U.S. -, -, 113 S.Ct. 1792, 1800 , 123 L.Ed.2d 543 (1993).
Even if, contrary to the record in this case, the presumption were indulged that a factual predicate of potential deceptiveness had been established, such facts would not justify the state’s invasion of freedom of speech. A variety of words are commonly used in American advertising, all of which are potentially misleading. For example:
antique
bargain
economical
environmentally sound
naturally good
A paternalistic government might decide to protect consumers by criminalizing all advertising containing these words if the product advertised failed to conform with the state’s own definition. That the terms defined were capable of misleading use would be incontestable. That a criminal law of this character would violate the First Amendment would be equally incontestable. Potential misuse “does not satisfy the State’s heavy burden of justifying a categorical prohibition against the dissemination of accurate factual information.” Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91, 109 , 110 S.Ct. 2281, 2292 , 110 L.Ed.2d 83 (1990). The difference between this hypothetical statute and the California criminal law at issue here is not a difference in kind or in degree. The only difference is that the California law has chosen a different set of speculatively misleading words to define and criminalize.
Why have these particular words been made the subject of legislation? Why have Californians Against Waste and the Environmental Defense Fund been allowed to enter the case on the side of the state with the status of intervenors? Why do these interve-nors defend the district court’s decision with such skill, tenacity and vigor? Plainly because, as the intervenors declare, the words defined are “key environmental terms”. In the Green Movement the words are powerful, evocative, almost sacred. There is a sense that they should not be profaned by casual usage. The legislation embodies a clear conviction that there are those who can be trusted to use them and those who cannot be trusted; for the legislation singles out commercial advertisers as the untrustworthy and leaves unregulated and trusted the nonprofits who believe the terms are key.
Such a distinction between speakers, made by a legislature, has a name: viewpoint discrimination. Such a distinction has a constitutional destiny, to be held a violation of the First Amendment unless, strictly scrutinized, it is shown to be narrowly tailored to serve a compelling state interest. R.A.V. v. City of St. Paul, — U.S. -, -, 112 S.Ct. 2538, 2547 , 120 L.Ed.2d 305 (1992). A legislature cannot privilege one set of speakers as the good guys, while restraining another set of speakers as the baddies. When the speakers use the same language, it’s not difference *740 enough that one speaks for profit and the other for “nature.”
This broad-brush, speculatively-justified statute cannot survive the test of rationality, let alone strict scrutiny. To the state’s present embarrassment, the state argued in its Points and Authorities to the district court that the plaintiffs would not violate the statute if their advertising qualified the restricted terms appropriately. This argument, of course, rewrote the statute, was ignored by the district court, and is abandoned by the state on this appeal. But the abandoned argument does point to the obvious, that with a minimum of effort the legislature could have provided that qualified use of the terms was acceptable. The legislature tacitly conceded as much by accepting in the statute itself any definitions “established in trade rules adopted by the Federal Trade Commission.” If potential misuse was the problem, it would have been possible to do as the FTC may sometime do and as Maine in fact does do, provide a governmental definition of “recycled content,” but permit any “properly qualified statement of fact” addressed to consumers. Maine Rev.Stat.Ann., Title 38, § 2141.2. When such means could be used to attain the legislative end, the present fit is too rough to be rational.
In summary, the statute in question, criminalizing the use of specific words in commercial speech, is vague in the standard set; has a rough and speculative relation to the interests of the state; and discriminates among speakers. The statute is incompatible with the freedom assured by the First Amendment.