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.

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