According to the Hyper-Chicken, a lawyer from my favorite television show, “freedom of speech applies to what comes out of a mouth, not what goes in.” State of Alabama v. Giant Space Iguana, 273 U.S. Ω (2976) (chewing corners off Constitution deemed non-protected speech).
The Hyper-Chicken is a fictional cartoon alien from the future, and an incompetent attorney. However, he actually has a point, at least when it comes to commercial speech. The Supreme Court has treated prohibitions against commercial speech (e.g., “You can’t say that in your ad!”) differently than government mandates compelling certain speech (e.g., “You must say that in your ad!”).
If you need an example of compelled commercial speech, look no further than your kitchen. Food manufacturers are subject to multiple tiers of regulation requiring various health and safety disclosures on packaging and in advertisements. This year saw two high profile cases regarding such requirements, National Rest. Assn. v N.Y. City, 148 A.D.3d 169) (1st Dept. 2017) and Am. Bev. Assn. v San Francisco, 871 F. 3d 884 (9th Cir. 2017). One case involved sugar and one involved salt. Like sugar and salt, the two regulations bore superficial resemblances to each other. However, the outcomes of cases, both of which turned on the Supreme Court’s compelled commercial speech jurisprudence, could not have been more different.
Background: The Zaudurer Standard
The constitutional standard that generally applies to compelled food labeling derives from Zaudurer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). In Zaudurer, the Ohio Supreme Court held that an advertisement by attorney Philip Q. Zaudurer, which was intended to attract contingency fee cases from clients who had been injured by IUD contraceptive devices, violated Ohio disciplinary rules in two ways: First, it included speech that was prohibited; and second, it failed to include speech that was required.
As to the prohibited speech, Ohio’s disciplinary rules did not allow attorney advertisements to include illustrations, even accurate ones like those depicted in Zaudurer’s ads. The Supreme Court reviewed this rule using its Central Hudson test for commercial speech, sometimes referred to as “intermediate scrutiny.” Under this analysis, restrictions on commercial speech that is truthful (or at least not inherently deceptive) cannot stand unless they are in the service of a substantial governmental interest, and the means employed directly advance that interest. In Zaudurer, the prohibition against illustrations was found to violate the First Amendment because the Ohio authorities were unable to show how it directly advanced their stated goal (preserving the “dignity” of the legal profession).
But as to the second type of violation, Zaudurer’s failure to include certain required speech, the Supreme Court engaged in a different analysis. Ohio disciplinary authorities, concerned that consumers did not understand the difference between attorneys’ fees and costs, required that every contingency fee advertisement include a disclaimer explaining the difference and stating that the consumer may be liable for costs, win or lose. Zaudurer’s ad failed to make this disclosure.
The Supreme Court held that Zaudurer’s interest in not providing this factual information was minimal, and developed a separate test for reviewing compelled commercial speech. The Zaudurer test, described by some as “more lenient” than the Central Hudson standard, provides that the government may compel commercial speakers to make certain disclosures if:
- The disclosure being required is of a factual, uncontroversial nature;
- The disclosure is reasonably related to a non-speculative government interest (subsequent case law examined whether the only qualifying government interest was the avoidance of consumer deception, but the growing consensus, articulated in American Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014), is that any “adequate” government interest will do);
- The requirement is not unduly burdensome.
Here, the Ohio compelled disclosure (regarding costs and fees) was considered purely factual and uncontroversial, the disclosure was reasonably related to a non-speculative interest in avoiding consumer deception, and it was not unduly burdensome. Therefore, Ohio’s compelled disclosures did not violate the First Amendment.
In 2017, the Zaudurer...
