Debiasing through law and the First Amendment.

• Author: Jolls, Christine
• Position: Symposium: Festschrift in Honor of Richard Craswell

INTRODUCTION I. LEGALLY REQUIRED VISUAL COMMUNICATIONS: THREE EMPIRICALLY MOTIVATED ILLUSTRATIONS A. "Visual" Communications Defined B. Three Illustrations of Legally Required Visual Communications 1. Skull and crossbones 2. Protective goggles, mask, and gloves symbols 3. Nutrition traffic lights II. INFORMEDNESS EFFECTS OF LEGALLY REQUIRED COMMUNICATIONS A. Communications' Effects B. Implementing the Empirical Approach to Informedness Effects: Legally Required Visual Communications 1. Skull and crossbones 2. Protective goggles, mask, and gloves symbols 3. Nutrition traffic lights III. FIRST AMENDMENT ANALYSIS OF LEGALLY REQUIRED COMMUNICATIONS A. Informedness Effects, Legally Required Visual Communications, and the First Amendment B. Noninformedness Effects of Legally Required Communications C. Judicial Splintering D. "Deception" CONCLUSION INTRODUCTION

Both within and beyond markets, law is pervasively concerned with the availability and structure of information. (1) In markets, an inadequate level of informedness about potentially harmful products or services may, if such inadequacy goes unremedied, support legal constraints on otherwise valuable product and service offerings. (2) Accordingly, remedies that increase consumers' level of informedness--by expanding the topics on which information is made available; (3) by "debiasing through law"; (4) or by other measures (5)--while leaving consumers "free to make their own choices" typically represent an appealing approach for law. (6) If, for instance, consumers defaulting on mortgages typically believed at mortgage initiation that the defaults that might occur among other borrowers would not happen to them, (7) then a communication debiasing such overoptimistic perceptions would frame an important alternative to banning a particular mortgage product. Skepticism of debiasing through law and other informedness-focused remedies thus has the potential to push toward costly and choice-reducing bans on products and services. (8)

In an increasingly interconnected world legal order, informedness-focused remedies have a vital capacity to bridge not only differences among individuals within a given legal jurisdiction but also diverse national legal frameworks and cultures. Allowing consumers, once adequately informed, to "protect themselves according to personal preferences" rather than "placing] on regulators the difficult task of compromising diverse preferences with a common standard" (9) for a product or service may be nearly imperative on the world stage. Legally required disclosures--such as similar visual warnings for tobacco products in Australia, Belgium, Brazil, Brunei, Canada, Chile, Colombia, the Cook Islands, Djibouti, Egypt, Hong Kong, India, Iran, Jordan, Latvia, Malaysia, Mauritius, Mexico, Mongolia, New Zealand, Pakistan, Panama, Paraguay, Peru, Romania, Singapore, Switzerland, Taiwan, Thailand, Turkey, the United Kingdom, Uruguay, and Venezuela--span a startlingly diverse set of national legal systems. (10)

Standing apart from other countries' legal structures, American constitutional law channels and shapes debiasing through law and other informedness-focused remedies. In the United States, legally required communications may unconstitutionally compel commercial speech under a fiercely contested First Amendment framework. (11) As many commentators have noted with respect to such legally required communications, a recent uptick in First Amendment invalidation of the communications both threatens to diminish an internationally vaunted form of regulation and opens the door to product and service bans that are themselves difficult to challenge on First Amendment grounds. (13)

The recent invalidations, this Article suggests, have rested on a flawed approach to First Amendment analysis of the degree to which consumers are "well informed." (14) To a greater extent than at present, the First Amendment investigation into the capacity of a legally required communication to "dissipate the possibility of consumer confusion or deception" (15) should be treated as an empirical rather than, as in the typical court decision, a conceptual or analytic inquiry. The Article grounds the case for such an empirical component of informedness analysis in a specific delineation--for three existing legally required communications--of data and tools that facilitate evidence-based assessment of the degree to which consumer perceptions are factually accurate in the presence versus the absence of the legally required communication. (16) When available, empirical evidence has a role to play in assessing whether a legally required communication helps to debias individuals' overoptimistic or otherwise factually inaccurate perceptions and, thus, render "customers ... informed." (17)

As the discussion below suggests, the significance of empirical assessment of informedness effects of legally required communications is likely to be particularly great in the case of legally required visual communications, such as the pictorial depictions of tobacco's health effects in the long list of countries provided above and--prior to the Department of Justice's decision not to seek Supreme Court review of the invalidation of visual tobacco warnings on First Amendment grounds (18)--in the United States. Complementing the extensive scholarly attention to visual tobacco warnings, (19) Part I below draws on current law to provide a series of nontobacco illustrations of legally required visual communications whose effects on the degree to which consumers' perceptions are factually accurate may be assessed with extant empirical data.

Part II offers a general typology of modes of assessing informedness effects of communications; it then discusses at length the available data on the informedness effects of the legally required visual communications described in Part I. The evidence provides some support for the conclusion that the visual elements of such communications enhance the degree to which individuals' perceptions of matters addressed by the communications are factually accurate. In the settings of these legally required communications, visual elements can debias.

Part III, building on Part II, urges that the negative judicial treatment of some legally required visual communications in recent First Amendment case law is inadequately theorized. Such treatment of legally required visual communications also has disquieting spillover effects, described in Part III, on the structure and direction of First Amendment analysis of legally required communications more generally.

1. LEGALLY REQUIRED VISUAL COMMUNICATIONS : THREE EMPIRICALLY MOTIVATED ILLUSTRATIONS

   The present Part develops three illustrations of legally required visual communications in and beyond the United States. To lay the groundwork for these illustrations, it first defines "visual."

   1. "Visual " Communications Defined

      Although it is possible to categorize written or printed text as "visual" or "picture-like," (20) the analysis here--parallel to the First Amendment case law discussed in Part III--treats material that is either pictorial (containing photographic or drawn images) or evocative of photographic or drawn images as "visual." An example of the latter category, discussed in Parts I.B.3 and II.B.3 below, is a "nutrition traffic light" on food packaging with red to signal "brake," amber to signal "proceed with caution," and green to signal "go." Elements of the visual appearance of textual statements--including not only the words used but also the letter color, size, and font style--are not "visual" for purposes of the analysis here.

   2. Three Illustrations of Legally Required Visual Communications

      Given the "visual turn" in recent years, (21) the large and variegated set of legally required visual communications on labels, in workplaces, and elsewhere (even in offices of medical personnel who perform abortions (22)) is no surprise. Within this broad set, the present analysis develops three illustrations of cases in which existing empirical evidence, detailed in Part II.B, provides some identification of the effects of the legally required visual communication on consumers' level of informedness. Although there is a large body of empirical evidence on visual communications' various effects, many of the studies--notwithstanding the emphasis of much legal analysis on whether consumers are "informed" (23)--primarily address outcomes other than informedness. (24) This Article turns the focus to legally required visual communications' effects on the degree to which consumer perceptions are factually accurate.

      1. Skull and crossbones

         Two decades ago, the United Nations initiated a far-reaching effort to harmonize chemical hazard communications around the world. (25) The resulting Globally Harmonised System of Classification and Labelling of Chemicals (GHS) relies prominently on the use of visual elements in communicating hazards. (26) The skull and crossbones in Figure 1, used in the GHS to signal chemical toxicity, is a notable example of such an element. (27)

         In 2012, after a massive rulemaking proceeding, (28) the Occupational Safety and Health Administration (OSHA) incorporated the skull and crossbones and other GHS elements into the regulatory framework governing workplaces in the United States. (29) As indicated in Figure 1, the implementation of the GHS skull and crossbones specifies not only the specific pictorial material to be used but also the colors required in the communication. (30)

         The Consumer Product Safety Commission likewise mandates the use of the skull and crossbones in certain circumstances. (31) Federal regulations require, for instance, that products containing more than threshold levels of methyl alcohol or benzene be marked with the skull and crossbones alongside the textual warnings of "poison" and "danger." (32)

      2. Protective goggles, mask, and gloves symbols

         In the European Union, whose member...