"Compelled Commercial Speech and the Consumer 'Right to Know'"

|The Volokh Conspiracy |

Compelled commercial speech implicates the First Amendment. Commercial speech is protected speech (even if it is not protected as much as political speech), and the First Amendment protects against speech compulsions just as it protects against speech limitations. Nonetheless, the government often mandates the disclosure of information by firms that produce or sell products or services.

What are the limits of compelled commercial speech under existing First Amendment doctrine? That is the subject of my article, "Compelled Commercial Speech and the Consumer 'Right to Know,'" just published by the Arizona Law Review. Among other things, I argue that some commentators and courts have mistakenly assumed that the mandated disclosure of truthful information need not be justified by a substantial government interest. I also suggest that some policy proposals (such as mandatory GMO labels) are unconstitutional, while others (such as mandatory nanotech labels or calorie content disclosure) may well satisfy the relevant constitutional requirements.

Here is the 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 understood as a type of commercial speech and be subject to the same level of protection as commercial speech generally. Accordingly, commercial speech compulsions, such as mandatory disclosures and labeling requirements, must be supported by a substantial government interest under the Central Hudson framework. The assertion of a consumer "right to know" does not constitute such an interest and cannot, by itself, justify compelled commercial speech within this framework. 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 neither inhibit government efforts to protect consumers nor prevent consumers from obtaining information they desire 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 obtaining 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 to violate the First Amendment.

The full article is available on the Arizona Law Review website here.