Compelled commercial speech and the First Amendment

Since initially extending First Amendment protection to commercial speech in 1976, the Supreme Court has devoted many pages in many decisions to determining the contours and scope of this protection. The Court has devoted the overwhelming portion of its attention, however, to determining the scope of First Amendment limitations on government suppression of commercial speech. Only rarely has the Court considered the constitutionality of First Amendment restrictions, if any, on compelled commercial speech, and when it has done so it has often written in confusing and seemingly inconsistent ways. This is so, even though the Court has spoken eloquently of the need to protect against compelled speech in the context of non-commercial expression. The purpose of this Article is to tackle the issue of compelled commercial speech head on, in order to determine under what circumstances it is constitutionally inappropriate for government to compel a commercial speaker to make statements the speaker does not wish to make. After reverse engineering the constitutional and democratic pathologies sought to be avoided by the prohibition on compelled non-commercial speech, this Article determines that many of those pathologies apply with equal force to compelled commercial speech, and therefore the First Amendment should, as a general matter, be construed to protect against compelled commercial speech. This does not mean that no circumstances exist in which government may compel commercial speech, however. In order to shape the proper theoretical and doctrinal framework, this Article establishes a system of qualifiers and disqualifiers. Initially, government must satisfy at least one of the two qualifiers in order to shift the constitutional default position that government may not interfere with communications between private speaker and private listener. Government must be using compelled speech either to (1) protect public health or safety, or (2) protect the consumer from economic harm due to intentionally or recklessly fraudulent statements. Even if the government satisfies one of those qualifiers, however, compelled speech will nevertheless be unconstitutional if it triggers one of the two disqualifiers: (1) the factual or scientific statements required to be conveyed by the commercial speaker are reasonably disputed by that speaker, or (2) the compelled speech effectively, albeit indirectly, interferes with the commercial speaker’s ability to convey its own message to the consumer. If either of these disqualifiers is present, the compelled speech triggers one or more of the underlying constitutional or democratic pathologies sought to be avoided by the extension of First Amendment protection to compelled expression. Finally, this Article considers the extent to which the First Amendment protection extended to compelled commercial and non-commercial speech should be deemed fungible. It concludes that at least in the abstract, they should be so viewed. However, it recognizes that in application, there are likely to be more instances where compelled commercial speech will be justified by application of the qualifiers than compelled non-commercial speech.