Compelled Commercial Speech and the First Amendment

In the latest issue of NH Bar News, attorney Anthony Galdieri and law student Owen Graham summarize the present state of the law regarding mandated commercial disclosures:

In addition to the freedom to speak, the First Amendment of the United States Constitution protects the right of individuals and corporations to refrain from speaking.

Laws that compel individuals or corporations to speak are generally viewed as presumptively unconstitutional and subject to a heightened or intermediate level of scrutiny. But not all compelled speech is equal under the First Amendment.

Commercial speech (i.e., speech that proposes a commercial transaction) is afforded less protection than speech on public or private matters on the theory that the public’s interest in receiving accurate and non-misleading commercial information outweighs an advertiser’s right to say whatever it pleases.

For this reason, in the area of compelled commercial speech, the United States Supreme Court has recognized a narrow exception to the general rule where the government may require the disclosure of purely factual and uncontroversial information to protect consumers from confusion or deception. Laws mandating such disclosures are subject to a lower level of scrutiny. The landmark US Supreme Court case establishing this rule is Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio.

The full article is available here.
 

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