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Can You Handle the Truth? Compelled Commercial Speech and the First Amendment

103 Pages Posted: 19 Jun 2012 Last revised: 4 Jul 2012

Jennifer M. Keighley

Yale Law School

Date Written: June 18, 2012

Abstract

As information disclosure policies become a more popular and widespread regulatory tool, speakers are increasingly challenging such policies as a violation of their freedom of speech. The First Amendment limits on compelled commercial speech, however, have received little elaboration since the Supreme Court’s 1985 decision in Zauderer v. Office of Disciplinary Council. The new challenges to information disclosure policies threaten to unsettle the compelled commercial speech doctrine without appropriate recognition of the First Amendment values at stake, and to impose significant limits on the state’s ability to compel the inclusion of factual information in commercial speech in the service of the substantial state interests. While Zauderer indicates that compelled commercial disclosures are subject to rational basis review, questions remain about what interests can justify such disclosures, the types of disclosures that can be compelled, and what forms of speech qualify as commercial speech. I conclude that compelled factual disclosures affecting speech whose context and content is commercial should be subject to rational basis scrutiny as long as (1) the disclosure serves the state’s interest in an informed public, and (2) the disclosure informs the audience instead of spreading the government’s normative message. I will develop this conclusion by looking to recent First Amendment challenges to (1) the FDA’s Final Rule requiring tobacco packages and advertisements to include warning labels that have graphic images of the consequences of tobacco addition, and (2) city laws requiring organizations providing services to pregnant women to disclose the scope of their services. These recent legal challenges illustrate the need for a new test for compelled commercial speech that adequately protects speakers’ First Amendment rights, as well as the audience’s informational interests.

Keywords: First Amendment, Commercial Speech, Compelled Speech, Disclosures

Suggested Citation

Keighley, Jennifer M., Can You Handle the Truth? Compelled Commercial Speech and the First Amendment (June 18, 2012). University of Pennsylvania Journal of Constitutional Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2086859

Jennifer M. Keighley (Contact Author)

Yale Law School ( email )

New Haven, CT 06520
United States

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