Compelled Commercial Speech as Compelled Consent Speech

Abstract

This piece argues that rather than grouping compelled commercial speech cases as a class to themselves, it is useful to recognize that most of these cases involve government compelled speech in connection with a sale transaction, and that compelled disclosures in the context of sale transactions are part of a broader group of compelled disclosures in interpersonal transactions. Viewing the cases this way makes a number of points clear. First, governments effectively require communication between parties to commercial transactions all the time as a routine, ordinary and accepted exercise of state police power or of the federal government's Commerce Clause power. Second, there is no basis in the Constitution to limit the deferential review of commercial disclosure requirements to disclosure requirements aimed at correcting deceptive or misleading commercial speech. Rather, those instances are properly viewed as part of a subset of broader government authority to define the facts material to the consent that makes an interpersonal transaction legal and enforceable. Third, recognizing the inherent government power to define the facts material to valid consent makes sense of the subset of compelled commercial speech cases. It identifies the few disclosure requirements that fall out of bounds, and it makes clear that the primary work to be done in the compelled speech jurisprudence is to identify what limits the Constitution places on the types of information governments require commercial speakers to present and how they must present it, not to argue over whether the government has the authority to require disclosures at all - it clearly does.

Keywords: Constitution, First Amendment, Free Speech, Compelled Speech, Commercial Speech, Disclosure Requirements