COOL story, part 2: concurrences

AMI continued: concurrences

Judge Rogers concurred in part.  She wrote to disassociate herself from the suggested collapse of Central Hudson and Zauderer.  “Viewing Zauderer as simply an application of Central Hudson to special circumstances … finds support in neither Supreme Court precedent nor the precedent of this court or our sister circuits.”  Blurring the lines would be unnecessarily confusing, especially in other cases where the key issue could be evidentiary support for, or “fit” of, the regulation.

Both the majority and the dissent contravened Zauderer and didn’t give sufficient weight to the purposes of First Amendment protection for commercial speech.  Zauderer “was not tracing a shortcut through Central Hudson but defining a category in which the interests at stake were less threatened.”  There are material differences between disclosure requirements and speech bans.  Mandatory disclosure of beneficial consumer information is “consistent with the reasons for according constitutional protection to commercial speech and therefore justifies less than strict review.” 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (plurality).  This is consistent with the Supreme Court’s longstanding focus in commercial speech cases on consumers’ interests in the free flow of commercial information.  Truthful disclosure “furthers, rather than hinders, the First Amendment goal of the discovery of truth and contributes to the efficiency of the ‘marketplace of ideas.’”  Because of the difference between disclosures and bans, Zauderer scrutiny is less exacting than Central Hudson scrutiny, regardless of the government interest asserted.

Judge Kavanaugh concurred, doing just what Judge Rogers didn’t want: applying Central Hudson, these particular regulations passed.  A substantial government interest was required, and was present here. 

“The Government has long required commercial disclosures to prevent consumer deception or to ensure consumer health or safety. Those interests explain and justify the compelled commercial disclosures that are common and familiar to American consumers, such as nutrition labels and health warnings.”  But the requirements here weren’t traditional anti-deception, health, or safety interests, because COOL “obviously does not serve those interests.”  Instead, the regulation provided consumers with information. 

Providing information alone “plainly” isn’t enough, because it would be true of any and all disclosure requirements.  (Why is that in itself problematic?  Even if we accept that there must be some disclosure requirements that flunk Central Hudson, must there be some disclosure requirements that do not further a substantial interest?)  That would allow any compelled commercial disclosure and give governments “a free pass to spread their preferred messages on the backs of others.”  Some consumers might want to know “whether their U.S.-made product was made by U.S. citizens and not by illegal immigrants,” “whether a doctor has ever performed an abortion,” or “the political affiliation of a business’s owners.”  “These are not far-fetched hypotheticals, particularly at the state or local level.”  History and tradition provide no justification for “free-wheeling” power of this sort.

However, COOL was justified by the “historically rooted interest in supporting American manufacturers, farmers, and ranchers as they compete with foreign manufacturers, farmers, and ranchers.”  Economists can debate protectionism, but Congress has long sought to support US industries against foreign competitors; that gives this interest a sufficient historical pedigree to be substantial. COOL serves this interest because it causes many American consumers, for varied reasons, to buy more American-made products. 

But has the government actually asserted this interest, as required under Central Hudson?  The executive branch didn’t expressly do so during the litigation, “apparently because of the international repercussions that might ensue.”  But it’s still obvious, and Congresspeople did articulate it, which was enough.

Then the question was whether there was a sufficient fit between the disclosure requirement and the government interest. Judge Kavanaugh read Zauderer to apply Central Hudson on this point. Requiring mandatory disclosures be “purely factual,” “uncontroversial,” not “unduly burdensome,” and “reasonably related to” the government’s interest was just an application of Central Hudson—Zauderer just explains what sufficient tailoring is in the context of compelled commercial disclosures.  This is more than rational basis review, which “would undoubtedly tolerate government mandates of moral or policy-laden messages, of controversial messages, of burdensome labels, of disclosures that are only indirectly related to the Government’s interests.”  Zauderer, by contrast, “tightly” limits mandatory disclosures to “a very narrow class.”  Judge Kavanaugh commends the majority for recognizing that Zauderer was more than rational basis review—a beautiful example of attempting to influence future readings of a majority opinion.

Here, Zauderer’s stringent requirements were met: the disclosures here were purely factual, not unduly burdensome, and reasonably related to the government’s interest.  (In my reading, the one thing really missing from these “stringent” requirements is any consideration of alternatives.  Here, that would seem to be outright protectionism, if the interest is as described.  By contrast, an interest in informing consumers so they can make their own choices really isn’t satisfied by tariffs on foreign meat.)  Controversiality is an unclear standard, but not here “given the factually straightforward, even-handed, and readily understood nature of the information, as well as the historical pedigree of this specific kind of disclosure requirement.”