Compelled Commercial Speech and the Consumer 'Right to Know'

Abstract

Compelled commercial speech, including mandatory labeling and the disclosure of factually true information, should not be seen as a separate category of speech under the First Amendment. Rather, compelled commercial speech should be subject to the same level of protection as commercial speech generally. This means commercial speech compulsions, such as mandatory disclosures and labeling requirements, must be supported by a substantial government interest. The assertion of a consumer “right to know” does not constitute such an interest and cannot, by itself, justify compelled commercial speech. Allowing such a justification for compelled commercial speech would eviscerate any meaningful First Amendment protection against compelled commercial speech and, threaten core First Amendment values. Such protection against speech compulsions will not inhibit government efforts to protect consumers nor prevent consumers from obtaining desired information about products and services. A dynamic market discovery process, with only limited and targeted government interventions, is a more effective way to serve the consumer interest in more complete information about goods and services. Most existing compelled disclosure requirements are consistent with this approach to compelled commercial speech, but some new and proposed disclosure requirements, including those for genetically modified organisms, are likely unconstitutional.

Keywords: First Amendment, Compelled speech, commercial speech, compelled commercial speech, labeling, mandatory labeling, mandatory disclosure

JEL Classification: K10, K23, K32