COMPELLED COMMERCIAL SPEECH AND THE FIRST AMENDMENT.

• Author: Redish, Martin H.
• Position: Contemporary Free Speech: The Marketplace of Ideas a Century Later

INTRODUCTION: COMPELLED EXPRESSION AS A VIOLATION OF THE FIRST AMENDMENT

For the most part, the First Amendment is viewed as a means of restricting government's authority to suppress expression. Both speakers and listeners are assumed to benefit from speech, and, therefore, the more communication of opinion and information, the better it is for both society and the democratic system. However, for a variety of important reasons, the courts have extended First Amendment protection to limit government's power to compel expression by private individuals and entities. The Court has wisely recognized that governmental compulsion to speak can often bring about many of the very same constitutional and democratic pathologies brought on by suppression. (1)

Despite their overlapping similarities, suppression and compulsion of speech have by no means been viewed as identical for First Amendment purposes by the Court. (2) On occasion, the Court has recognized that governmentally compelled speech may actually advance First Amendment interests more than undermine them. (3) Beginning with the work of famed free speech theorist Alexander Meiklejohn, (4) it has been widely recognized--even by the Court (5)--that the First Amendment right belongs at least as much to the listener as it does to the speaker. (6) After all, one can evolve morally, intellectually, or personally as much by reading great works of literature, science, or political theory as by expressing one's own views on the subject. Moreover, as Meiklejohn argued, if the First Amendment "springs from the necessities of... self-government," (7) the voters--whom Meiklejohn called the true "governors" in a democratic society (8)--need to receive and absorb as much information and opinion as possible in order for the process of self-government to operate effectively. While Meiklejohn made the mistake of wishing to confine the First Amendment to this listener perspective, he was surely correct in recognizing the value of expression to the listener.

As a general matter, governmental suppression of all but the most consciously false communication undermines both listener- and speaker-centric values of free expression: the speaker is harmed by not being able to speak, and the listener is harmed by not being allowed to listen, see, or hear the intended communication. The constitutional analysis of governmentally compelled speech, however, is considerably more complicated, and, unfortunately, the Court has failed to provide a coherent theoretical explanation of its decisions on the subject. Even if the speaker is compelled to communicate against her will, thereby triggering the constitutional pathologies normally associated with compelled speech, (9) it is at least conceivable that such forced speech could benefit the recipients of the expression by providing them with valuable information that could conceivably aid them in the making of self-governing decisions, whether of the political or private varieties. (10) In this sense, compelled speech may actually further First Amendment values, by providing potentially valuable information to the voters that will aid them in performance of their self-governing function. In so doing, compelled speech enhances the intersection of democracy and free expression.

Traditionally, compelled speech by individuals in the noncommercial context has, for the most part, been held to be constitutionally prohibited. (11) But this is not so in all cases. For example, individuals who contribute to political candidates' campaigns are legislatively required to publicly reveal their names, and the Supreme Court has found these legislative directives to be constitutional. (12) This is at least in part designed to deter and expose possible corruption. But the requirement also provides valuable information to the electorate by notifying them of who has contributed to the various candidates for office. Thus, while there exists a strong presumption against compelled speech in traditional expressive contexts, the protection is not absolute.

To this point, the Supreme Court has generally (though not always) been less than receptive to pleas for First Amendment protection against compelled commercial speech. (13) This is so despite its long-established protection against compelled noncommercial speech. But a sharp dichotomy, for First Amendment purposes, between compelled commercial and noncommercial speech would represent the same misguided, superficial reasoning that for many years led to an equally sharp dichotomy between limitations on the suppression of commercial and noncommercial speech. For many years, the Supreme Court summarily dismissed the notion that commercial speech was deserving of First Amendment protection against governmental suppression. (14) The Court, however, has long since recognized its error, now providing substantial protection to truthful commercial speech in a manner approaching the level of protection extended to noncommercial speech. (15) The thesis of this Article is that it is time for the Court to recognize that the issue of compelled commercial speech is similarly far more complex, both doctrinally and theoretically, than it has previously thought. Moreover, the Article argues that recognition of these analytical complexities should logically lead to a substantial increase in First Amendment protection against compelled commercial speech.

Does this mean that compelled commercial speech should be deemed as constitutionally unacceptable as compelled noncommercial speech is widely recognized to be? Perhaps not. But if so, it is important to understand three points: (1) to a large extent, the difference, when properly understood, flows not from the fact that commercial speech is less valuable than its noncommercial counterpart, as a matter of First Amendment theory, but rather from the generally unique harms that are risked by commercial speech and which may be avoided by compelled speech; (2) to the extent noncommercial speech gives rise to the very same dangers of harm, compelled speech designed to avoid these very same harms in the context of noncommercial speech should be deemed just as constitutionally permissible in that context; and (3) even if one were to conclude that compelled commercial speech is more constitutionally permissible in that context than compelled noncommercial speech, such a conclusion has absolutely no relevance, logically or practically, to the constitutional analysis of suppression of commercial speech. That compelled speech may be deemed more constitutionally appropriate in the context of commercial speech than it is in the context of noncommercial speech (a conclusion, I should emphasize, that I categorically reject) in no way justifies greater suppression of commercial speech than noncommercial speech, absent a showing that the commercial speech in question gives rise to more serious dangers of harm than comparable noncommercial speech. (16)

In determining the constitutionality of compelled commercial speech, the position taken here is that it is appropriate to employ the same analytical models that one employs, or at least should employ, in judging the constitutionality of compelled noncommercial speech. And those analytical models are parallel to the analytical models one should employ in measuring the constitutionality of the suppression of any form of expression. As a co-author and I have previously written, there are, broadly speaking, three such models: (1) speaker-centric, (2) listener-centric, and (3) regulatory-centric. (17) The speaker-centric model, as the name suggests, views the suppression of speech through the lens of the speaker: In what ways is the would-be speaker harmed by not being allowed to speak? Where a restriction on expression causes constitutionally pathological harm to the speaker, the restriction must--at least as a prima facie matter--be deemed a violation of the First Amendment. The listener-centric model similarly views the pathologies of expressive suppression through the lens of the listener: How is the listener harmed by being deprived of the opportunity to learn the information and opinion that the would-be speaker wishes to convey? Where a restriction on expression undermines the democratic values fostered by listener receipt of information and ideas, here too, the restriction must be deemed a prima facie violation of the First Amendment. (18)

Somewhat more complex in its operation is the regulatory-centric model. Under this model, the constitutional concern is with the need to preserve the implicit social contract between government and citizen in a liberal democratic society, and the extent to which the suppression of expression undermines that contractual relationship. Therefore, in applying this model one asks: To what extent does the government's suppression of expression reflect disrespect for the individual citizens as an integral whole, worthy of respect on the part of the government that represents them? A clear example of such pathological behavior by government is the selective suppression of truthful information on the basis of the paternalistic fear that the citizenry will make the wrong lawful choices on the basis of that information. Instead of trusting the citizens to make lawful choices on the basis of free and open debate, selective governmental suppression of one side of that debate represents a violation of the regulatory-centric model: government is exercising its regulatory authority in a democratically pathological manner.

One key to understanding how these three models function is to grasp that each model operates as a necessary, but not a sufficient, condition for satisfying the First Amendment. In other words, as a matter of First Amendment theory, it is not enough that a regulation satisfies any one of these three models. A violation of any one of them constitutes a significant disruption of the role performed by the...