The First Amendment and Disclosure Regulations: Compelled Speech or Corporate Opportunism?

摘要

Regulatory schemes based upon disclosure have generated numerous industry challenges in recent years, challenges that will undoubtedly continue in the absence of future U.S. Supreme Court guidance. Any disclosure requirement mandated by a federal, state, or local government could conceivably be called into question and subjected to rigorous constitutional scrutiny. In so doing, judges would be in a position of second-guessing policy determinations made by agencies and individuals with far greater knowledge of the underlying factual circumstances warranting regulation. It is unlikely that it is the intent of a majority of the present Court to return to the jurisprudence of the early twentieth century in which judges assumed extensive control over a vast array of economic regulations. Nevertheless, as evidenced by the litigation discussed in this article and the apparent trend toward equating noncommercial and commercial speech, avenues of attack remain available absent further clarification of the boundaries between permissible disclosure requirements and unconstitutional compelled speech. This article has drawn distinctions, identified factors important to these determinations, and suggested an alternative approach to compelled speech jurisprudence in the commercial context utilizing the approaches set forth in Zauderer and Central Hudson.