Daniel E. Herz-Roiphe, Stubborn Things: An Empirical Approach
to Facts, Opinions, and the First Amendment
From the intro:
[This] essay reports the results of
an original survey that presented respondents with the actual disclosures at
issue in a number of recent compelled speech cases, and asked them to
categorize these disclosures as factual or opinionated. Participants proved
proficient at distinguishing fact from opinion, suggesting that consumer
surveys could provide a valuable resource for courts. They also expressed
dramatically different understandings of the controversial disclosures at issue
in NAM and R.J. Reynolds than the D.C. Circuit did, offering a new and
important perspective on how these, and similar, forms of mandated speech
should be treated in future litigation.
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