The Compelled Commercial Speech Cases: Why Not Just Flip a Coin?
| Publication year | 2020 |
The Compelled Commercial Speech Cases: Why Not Just Flip a Coin?
R. George Wright
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Government regulation of commercial enterprises takes many forms. Among the most familiar forms are requirements that commercial speakers convey particular government-approved commercial messages, presumably for the sake of some sufficient benefit to the persons thereby informed. This Article discusses the difficult problems generated by the case law of compelled commercial speech. controversies and important paradoxes are examined herein, on the way to the surprising conclusion that in light of the ordinarily limited interests on both sides of the case, typical compelled commercial speech cases can be responsibly resolved, all else equal, by merely flipping a coin.
First, the Article briefly outlines the Supreme court of the united States's most important compelled commercial speech cases.1 These cases arise in the broader context of commercial speech regulation more generally.2 The leading Supreme Court case focusing distinctively on legally compelled commercial speech is that of Zauderer v. Office of Disciplinary Counsel.3 The compelled commercial speech cases,
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including Zauderer, have already generated conflicting scholarly reactions.4
The Article then discusses a number of important problems latent in the Supreme Court case law, some of which have been identified, but conflictingly addressed by the lower federal courts.5 Most surprisingly, it turns out that contrary to nearly universal belief, we actually cannot say that the Zauderer compelled commercial speech test really is, overall, less protective of recognized commercial speech rights than is the broader Central Hudson test.6
on the basis of the relevant case law and the available empirical evidence, the Article then considers uncertainties, complications, conflicts, and mixed results of compelled commercial speech regulation,7 in general,8 and more particularly regarding nutrition, diet, health, and disease.9
The Article then concludes10 that all else equal, the empirical evidence, legal assumptions, doctrines, tests, and values, including the value of commercial free speech, as they are typically construed, suggest that typical compelled commercial speech cases could be as justifiably determined by randomly flipping a coin as by any more respectable adjudicative process. As it turns out, both the recognized commercial speech interests and the real magnitude of the government regulatory interest, as actually advanced in practice by the typical compelled commercial speech regulation, tend to be quite modest. There are, surprisingly, typically only limited legal interests on both sides of the case.
Commercial speech was not granted distinctive constitutional protection until the 1976 case of Virginia State Board of Pharmacy v.
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Virginia Citizens Consumer Council.11 The Court began by recognizing that many persons care more about their consumer product purchases than about political issues.12 In constitutionally enshrining the individual and collective interest in informed commercial transactions, the Court retained some scope for regulatory limits on commercial speech. Thus, commercial speech that is deemed false, deceptive, misleading, or a proposal for an illegal transaction would simply be subject to prohibition.13 Virginia Pharmacy, in this respect, allowed states to promote the "purity" of the flow of commercial speech as well as the sheer volume of such speech.14
The Court in Virginia Pharmacy framed the narrow issue before it as "whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients."15 To this question, the Court in Virginia Pharmacy answered no.16
This holding left open whether, or how, states could also regulate commercial speech on grounds other than falsity, misleadingness, deceptiveness, or a contemplated illegal activity.17 Those questions were addressed four years after Virginia Pharmacy in Central Hudson Gas & Electric Corporation v. Public Service Commission.18 The summary holding of Central Hudson reasserts and then elaborates on Virginia Pharmacy's limitations as follows:
At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly19 advances the
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governmental interest asserted, and whether it is not more extensive than is necessary20 to serve that interest.21
Thus, Central Hudson, as a general commercial-free speech test, requires, apart from its other elements, merely a showing by the government of a "substantial" interest in regulating the speech in question.22 That is, under Central Hudson, commercial speech can be regulated, all else equal, if the government interest is merely substantial, as opposed to compelling, or overridingly important.23
More crucial for our purposes, the holding in Central Hudson requires a substantial government interest in restricting the commercial speech but does not require that the restriction also pass any sort of interesting balancing test. Specifically, the Court in Central Hudson does not provide for any possibility that the substantial
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government interest in regulating the speech may be outweighed, in any sort of comparative or balancing inquiry, by any other conflicting government interest, by any conflicting interest asserted by the commercial speaker, or by any interest of any audience for the commercial speaker.
Thus, the Court in Central Hudson does not provide for holding a commercial speech regulation unconstitutional by means of any sort of interest balancing test.24 As we shall see below, this feature is not shared by all constitutional free speech tests applicable to commercial speech.25 In particular, the key compelled commercial speech case of Zauderer v. Office of Disciplinary Counsel26 arguably embodies, in all instances, just such a broad interest balancing test.27
The Court in Zauderer addresses the regulation of commercial speech, but in the context in which a government seeks to compel commercial speech, as distinct from seeking to restrict, suppress, or prohibit some commercial message the speaker would otherwise wish to convey.28 The Zauderer test for cases of compelled commercial speech encompasses several distinct elements.29
In particular, the Court in Zauderer noted that the speech restriction at issue involved only an attorney's commercial advertising and a legally compelled addition to or accompaniment of that speech.30 The Court focused, at least in the context of the Zauderer case, on a governmental interest in dissipating "the possibility of consumer
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confusion or deception"31 from the advertisement in the absence of the legally mandated clarifying language.32
The Court in Zauderer was then careful to specify, although without any elaboration, that the compelled commercial speech in Zauderer was both "purely factual," and, in addition, "uncontroversial" information.33 Clarification of both of these unusually vague requirements was left to lower courts.34
At least equally importantly, the holding of Zauderer clearly prioritized the speech interests of the audience for the commercial speech in question,35 specifically by comparison with the assumedly minimal speech interest of the commercial speaker.36 The free speech interests at stake in commercial speech, in general, are thus said to be primarily those of the consumers, rather than the producers, of commercial information.37 In particular, "disclosure requirements trench much more narrowly on an advertiser's interests than do flat prohibitions on speech."38
The Court in Zauderer, however, then arguably imposed serious qualifications on both the power of governments to compel commercial speech and on the priority of consumer speech rights over those of compelled commercial speakers.39 Specifically, the Court recognized that "unjustified," or else "unduly burdensome," disclosure requirements might violate the commercial speaker's free speech rights.40
On the most straightforward reading—a judicial test element looking to undue, or excessive, burdensomeness—amounts to some sort of comparative balancing test; whatever one's understanding of the free speech interests of compelled commercial speakers or of their audience
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consumers. We pursue the question of a balancing test in Zauderer below.41
The Court in Zauderer closed its analysis, however, by apparently backing away from, and perhaps setting aside, not only any balancing, but much of its immediately preceding concerns and limitations.42 At least by the way of a brief explicit summary holding, the Court declared that "an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related43 to the State's interest in preventing deception44 of consumers."45
Zauderer remains the preeminent compelled commercial speech case, whatever its incompleteness, lack of clarity, or controversiality. Among the Supreme Court cases interpreting Zauderer, we find the attorney-regulation cases of Ibanez v. Florida Department of Business and Professional Regulation46 and Milavetz, Gallop & Milavetz v. United States.47 The Court in Milavetz treats the decision in Zauderer at somewhat greater length than does the Court in Ibanez but does little to clarify holding in Zauderer.48
The Court in Milavetz does characterize the Zauderer compelled commercial speech test as imposing "less...
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