‘Divine right’: Warnings on beer, but not on uranium?


It is widely known adage that the First Amendment provides constitutional protection of speech but does not protect someone who causes a riot by falsely yelling “fire!” in a crowded theater. Similarly, the First Amendment does not protect those who would rather not provide legally required warnings.

For example, local building codes require theater owners install fire alarms and detectors to warn moviegoers of a fire. Where there is smoke, these electronic mechanisms “yell fire!” and illuminate marked escape routes equipped with unlocked doors that open outward. The tragic death of 602 people in the 1903 Chicago Iroquois Theater fire helped prompt widely accepted and common-sense code provisions that require theater owners to warn and protect moviegoers.

Similarly, the federal Community Right to Know Act requires polluting industries – except most oil-and-gas facilities – to warn people through annual reporting of the tonnage of pollution each facility emits into the air we breathe.

Near the other end of the spectrum, federal statutes and regulations require our local breweries to warn us the adult beverages contained in beer cans and bottles may cause intoxication. Requiring brewers to print warnings might be more of a hangover from prohibition than a needful warning, but it is allowable under the First Amendment.

The public, courts, legislatures and cable news still debate what warrants a warning. However, there is no debate modern American law recognizes legal duties of property owners, Realtors, businesses and others to warn people about potential and known hazards.

When it comes to dangers and hazards involving government activities, the divine rights of kings excuse the United States and Colorado governments from legal duties to warn of known hazards. For example, uranium companies, federal officials and Colorado’s health department knew about the deadly effects of uranium mining in the 1940s and 1950s but did not warn the workers or the public.

The Department of Energy’s 1994 Advisory Committee on Human Radiation Experiments documents some of the most striking examples. Chapter 12 details government activities involved with sending unwary uranium miners down into the mines despite full knowledge of all involved, except the miners, that uranium mining involved special dangers. Government studies in the 1940s and 1950s confirmed what state regulators and federal officials suspected. However, uranium miners were not provided warnings until the 1960s.

The Advisory Committee’s conclusion was stark: “Because the federal government did not take the necessary action, the product it purchased (uranium) was at the price of hundreds of deaths.” The most remarkable component of the uranium miners’ tragedy was “so much of it took place in the open; so many federal and state agencies were participants.” The government knew, but did not warn.

Injured uranium miners and surviving family members went to the courts to remedy what one judge termed a “tragedy of the nuclear age.” The tragedy involved modern application of the divine rights of kings to allow government to evade responsibility. Based on a monarchal judicial doctrine that somehow survived the American Revolution – known as sovereign immunity – the courts provided no compensation and no justice to uranium miners who were not warned of the dangers they faced. Sovereign immunity requires the government to consent to judicial oversight. As a result, our government can withhold warnings and not worry about courts awarding compensation to citizens. Legislation can remove the remnants of the divine rights of kings, but sovereign immunity remains a pervasive and perverse incentive against the government warning the people about hazardous governmental activities.

Uranium miners were eventually, but marginally, addressed by congressional action in 1989 with the passage of the Radiation Exposure Compensation Act. Driving into many Southwest towns, billboards advertise nursing and other services related to these federal RECA payments. However, Congress called these payments “voluntary” to preserve government immunity handed down from kings.

It may seem ridiculous a government President Lincoln described as “of the people, by the people, and for the people” suffers no consequence when it does not warn the people of known, imminent dangers. The reasons the monarchal doctrines displace modern democratic principles are many, but none are worth the human cost borne of a governmental lacking legal duty to warn people of imminent danger.

Modern environmental laws, congressional waivers and democratic values may someday displace the right of kings enshrined into American law. However, for now, breweries must print label warnings on beer cans, but our government does not warn the people about ongoing hazards posed by Cold War uranium production.

Travis Stills is a public interest and environmental attorney with Energy & Conservation Law in Durango. Reach him at Stills@frontier.net.

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