Limiting NIFLA.

• Author: Lim, Andra

Table of Contents Introduction 129 I. The Landscape 132 A. Zauderer 132 B. NIFLA 137 C. Recent Warnings and Disclosures 141 1. Sugar-sweetened beverage warnings 142 2. Graphic cigarette warnings 143 3. Cell phone disclosures 144 4. Conflict minerals disclosures 146 5. Country-of-origin labeling 146 6. GMO labeling 147 7. Restaurant sanitation grading 148 II. Reading 1: Heightened Scrutiny 148 A. Ratcheting Up Zauderer 149 B. Narrowing the Scope of Zauderer 151 C. Implications 152 III. Reading 2: Limiting NIFLA's Heightened Scrutiny 156 A. The Equal Protection Analogue 156 B. The Commercial Speech Distinction 158 C. Implications 152 IV. Reading 3: Categorical Exception 161 A. The Doctrine of Content-Based Categorical Exceptions 161 B. Defining the Contours of an Exception 162 C. Implications 167 V. A Path Forward 170 A. The Second Reading 170 B. Fleshing Out Zauderer 174 1. Purely factual 175 2. Uncontroversial 186 3. Unjustified and unduly burdensome 188 Conclusion 192 Introduction

Ever since the 1800s, governments in the United States have used commercial warnings and disclosures to help safeguard the public interest. (1) Warnings and disclosures regarding commercial products and services are now staples in the government's regulatory toolkit--and an unremarkable aspect of daily life. From cigarette warnings to nutrition labels, warnings and disclosures are supposed to be a light-touch way to achieve the government's goals of protecting public health, safety, and welfare. (2) Rather than outright banning or otherwise regulating products like junk food and cigarettes, warnings and disclosures arm consumers with information in the hope of "nudging" them toward socially beneficial decisions, like selecting foods that comprise a healthy diet or quitting smoking. Whether warnings and disclosures are in fact effective at influencing consumers' decisionmaking is a hotly contested policy question. (3) But traditionally, warnings and disclosures had not drawn constitutional attacks. (4)

The tide has turned in recent years. Lawsuits raising First Amendment claims have thrown into question the constitutional status of commercial warnings and disclosures. (5) And their constitutionality is even more deeply unsettled in the wake of National Institute of Family and Life Advocates v. Becerra (NIFLA). (6)

In a 5-4 decision, the Supreme Court held that a California law requiring crisis pregnancy centers to disclose certain information on-site and in advertisements likely violated the First Amendment. (7) The Court's analysis of the First Amendment issue included working through the Zauderer test (8)--which originated in a case involving a government-mandated disclaimer in attorney advertising, (9) and which lower courts have since used to analyze commercial warnings and disclosures. (10) Although Zauderer has been described as "a test akin to the general rational basis test," (11) the Court's application of it in NIFLA was hardly deferential. (12) The Court did add a disclaimer to its decision: "[W]e do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products." (13) Yet given the Court's failure to elaborate on this disclaimer any further, Justice Breyer's dissent warned that NIFLA would "invite[] courts around the Nation to apply an unpredictable First Amendment to ordinary social and economic regulation, striking down disclosure laws that judges may disfavor." (14) Indeed, many observers have expressed concern about what NIFLA's searching review means for everyday warnings and disclosures about commercial products and services. (15) Lower courts are beginning to confront this question as well, grappling with how to read NIFLA and how to apply Zauderer going forward. (16)

This Note breaks new ground by comprehensively analyzing NIFLA's implications for warnings and disclosures about commercial goods and services. (17) Part I lays out the "burgeoning doctrine of compelled commercial speech," (18) describes the NIFLA decision, and introduces several examples of recent warnings and disclosures. The following Parts consider three possible readings of the NIFLA opinion and their consequences for the constitutional status of commercial warnings and disclosures. Part II explains that NIFLA could be read as requiring some form of heightened scrutiny--which many warnings and disclosures would fail. Alternatively, Part III shows that courts could distinguish NIFLA--and its application of heightened scrutiny--from the typical case involving a commercial warning or disclosure. NIFLA's application of searching review could be limited to cases where there is concern that the government is regulating based on the speaker's identity, or to cases where the speech at issue is not commercial. In most cases, then, the application of Zauderer would be closer to rational basis review than to intermediate scrutiny, and many warnings and disclosures would survive. Part IV demonstrates that NIFLA could also be read as suggesting that some warnings and disclosures may fall within a historically-grounded content-based categorical exception to the First Amendment. How many warnings and disclosures would fit within this potential exception depends on how the contours of the exception are defined.

Finally, given these three readings of NIFLA, Part V turns to the question of which reading should prevail with respect to commercial warnings and disclosures going forward. This Part argues for the reading proposed in Part III, under which NIFLA's heightened scrutiny would be limited and a rational basis version of Zauderer would usually apply. It then considers in detail what the government should have to prove under each Zauderer prong.

1. The Landscape

   To understand NIFLA, it is necessary to understand the Zauderer test that the Court applied in analyzing the First Amendment claim. This Part therefore begins by describing Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (19) and by situating it within commercial speech doctrine. With this background established, this Part next describes how the NIFLA Court approached the Zauderer test and resolved the First Amendment issue. Finally, this Part summarizes several recent government regulations requiring commercial warnings or disclosures, which will be used throughout this Note to concretely illustrate the implications of the three readings of NIFLA.

   1. Zauderer

      The Supreme Court first held that commercial speech falls within the First Amendment's ambit in 1976. (20) The protection of commercial speech is founded upon consumers' "right to hear and have access to an uncensored marketplace of ideas," rather than upon companies' right to speak. (21) In the hierarchy of First Amendment protections, commercial speech occupies a second-tier position. (22) "Core" political speech receives the highest First Amendment protection; (23) regulation of such speech based on its content is subject to strict scrutiny. (24) By contrast, regulation of commercial speech--which is inherently contentbased--is subject to more relaxed judicial review. (25) Commercial speech regulations are generally analyzed under the Central Hudson intermediate scrutiny test. (26) The Central Hudson test asks whether: (1) the commercial speech concerns lawful activity and is not misleading; (2) the government interest is substantial; (3) the regulation "directly advances" the government interest; and (4) the regulation "is not more extensive than is necessary to serve that interest." (27)

      In Zauderer, the Supreme Court clarified that the Central Hudson test does not apply across the board: When the government compels commercial speech, as opposed to suppressing commercial speech, the First Amendment analysis is more deferential. (28) The speech at issue in Zauderer was an attorney's newspaper advertisement targeted at women who had suffered injuries after using the Dalkon Shield Intrauterine Device. (29) In his advertisement, attorney Philip Zauderer declared: "The cases are handled on a contingent fee basis of the amount recovered. If there is no recovery, no legal fees are owed by our clients." (30) The Ohio Supreme Court found that Zauderer had violated multiple state disciplinary rules. (31) Most of those rules restricted the content of attorney advertising. (32) One rule required that advertisements disclose that clients might "be liable for costs (as opposed to fees)" if their lawsuits were unsuccessful. (33)

      Applying the Central Hudson test, the Court invalidated Ohio's restrictions on attorney advertising. (34) But the Court took a different approach to the mandated disclosure, holding that it did not violate the First Amendment. (35) By mandating disclosure of information about costs, Ohio had "not attempted to prevent attorneys from conveying information to the public; it ha[d] only required them to provide somewhat more information than they might otherwise be inclined to present." (36) Commercial speech is protected precisely because of "the value to consumers of the information such speech provides," so Zauderer only had a "minimal" First Amendment "interest in not providing any particular factual information in his advertising." (37)

      In so holding, the Court observed that the state had merely required that Zauderer "include in his advertising purely factual and uncontroversial information about the terms under which his services [would] be available." (38) Ohio had "not attempted to 'prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion'"; (39) it had "attempted only to prescribe what shall be orthodox in commercial advertising." (40) If the state had imposed "unjustified or unduly burdensome disclosure requirements," that might have infringed Zauderers First Amendment rights. (41) But since the disclosure requirement was "reasonably related to the...