Monday, October 18, 2010
Leslie Gielow Jacobs on Abortion Disclosure Cases and the Constitutionality of Government Disclosure Requirements for Commercial Speech
This article addresses the uncertain constitutional status of government compelled disclosure requirements imposed on commercial speech. In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the Supreme Court held that, while commercial speech restrictions are subject to intermediate scrutiny review under Central Hudson, at least certain types of disclosure requirements would be subject to more lenient rational basis review. Many had assumed that Zauderer’s deferential review applied to disclosure requirements imposed to promote legitimate regulatory objectives including, but not limited to, preventing consumers from being deceived by unsupplemented commercial speech. As new requirements that cigarette labels provide larger and more graphic health warnings illustrate, these regulatory purposes may include achieving the public health objective of reducing demand for the product on which the information must be placed. But the Supreme Court’s recent interpretations expanding the free speech protection of commercial and corporate speakers from government regulations that take the form of restricting their speech create uncertainty as to whether and how these changes in the jurisprudence of speech restrictions will modify the authority of governments to achieve their legitimate regulatory objectives by means of information disclosure requirements imposed on commercial speech. Yet this apparent uncertainty in the commercial speech jurisprudence has an odd and inconsistent counterpart. At the same time that members of the Court have suggested that disclosure requirements imposed on commercial speech for purposes other than preventing consumer deception may be constitutionally suspect, in the analogous context of the abortion service, the Court has applied deferential rational basis review to uphold selective and persuasive disclosure requirements that were imposed for purposes other than correcting potentially misleading speech. This piece identifies the symmetry between the two lines of cases, and to points out that, so long as the informed consent to abortion precedent remains unchanged, it is controlling in the context of commercial speech disclosures. Deferential rational basis scrutiny applies to judicial evaluations of information disclosure mandates imposed on product labels and other types of commercial speech, even if the government’s purpose is something other than preventing consumer deception and even if the information is obviously selected and presented to persuade.