Zauderer and Compelled Editorial Transparency
24 Pages Posted: 18 Oct 2022 Last revised: 9 Dec 2022
Date Written: October 24, 2022
A 1985 Supreme Court opinion, Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, holds the key to the Internet’s future. Zauderer provides a relaxed level of scrutiny for Constitutional challenges to some compelled commercial speech disclosure laws. Regulators throughout the country are adopting “transparency” laws to force Internet services to disclose information about their editorial operations or decisions when they publish third-party content, based on their assumption that Zauderer permits such compelled disclosures. This article explains why these transparency laws do not qualify for Zauderer’s relaxed scrutiny. Instead, given the inevitably censorial consequences of enacting and enforcing compelled editorial transparency laws, they should usually trigger strict scrutiny—just like outright speech restrictions do.
Keywords: Free Speech, Censorship, First Amendment, Zauderer, Commercial Speech, Advertising, Editorial Transparency, Compelled Speech, Internet, Big Tech, Constitutional Law, Transparency
JEL Classification: D18, D82, K2, K4, K42, L15, L43, L86, L88, M3, M48, O38
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