Reading list: disclosures as compelled commercial speech

Reading list: Aaron Stenz, Note: The Controversial Demise of Zauderer: Revitalizing Zauderer Post-NIFLA, 104 Minn. L. Rev. 553 (2019).

The First Amendment broadly stands for the idea that government attempts to curtail the right of the American people to both speak and not speak should be viewed with the utmost skepticism. In the context of compelled commercial speech, however, that scrutiny is lessened. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (Zauderer) established that where the government attempts to compel commercial speakers to make disclosures of purely factual and uncontroversial information about products or services, courts will consider such regulations more deferentially. Zauderer recognized that commercial speakers have a minimally protected interest in notdisclosing such information, while the government has a vital interest in protecting consumers against deceptive practices.

Zauderer has been interpreted in a myriad of ways, with courts diverging on when Zauderer deference should be applied, culminating in the Supreme Court’s 2018 decision in National Institute of Family and Life Advocates v. Becerra (NIFLA). The NIFLA majority reasoned that Zauderer deference was not applicable to a California disclosure requirement in part because the underlying topic—abortion—was controversial.

This Note argues that the use of the “purely factual and uncontroversial” standard as a threshold requirement for Zauderer deference to be applied has always been problematic, but that NIFLA is the straw that broke the camel’s back, mandating a fundamental reconsideration of Zauderer deference. The “purely factual and uncontroversial” standard has become the mutated product of an inconsistent body of law, and, following NIFLA, is both prone to judicial bias and is fundamentally divorced from the consumer protection interests. This Note concludes that, in order to remedy these fatal flaws, Zauderer’s “unjustified or unduly burdensome” standard should replace the “purely factual and uncontroversial” standard for the application of Zauderer deference.

Comprehensive and thoughtful. Kudos to the author.