Academic journal article Harvard Law Review

Repackaging Zauderer

Academic journal article Harvard Law Review

Repackaging Zauderer

Article excerpt

In 1942, following an enterprising individual's arrest for his attempts to advertise a submarine tour, commercial speech surfaced for the first time as a unique category of speech in First Amendment doctrine. (1) While it would be several more years until commercial speech was found to be deserving of First Amendment protection, and the contours of this doctrine --and the distinction between commercial and noncommercial speech--remain somewhat fluid, (2) it is now well-settled that restrictions on commercial speech are generally subject to intermediate scrutiny. (3)

In 1985, however, the Supreme Court created an exception to this standard, holding in Zauderer v. Office of Disciplinary Counsel (4) that regulators can require a commercial actor to divulge information so long as it is "reasonably related to the State's interest in preventing deception of consumers." (5) Such disclosures are frequently referred to as "compelled commercial speech," and they are a pervasive, if often unobtrusive, aspect of daily life. Salt-shaker icons on foods deemed to be high in sodium, (6) textual warnings that highlight the potential dangers of smoking, (7) and requirements that lawyers "disclose in their advertisements that a losing client might still be responsible for certain litigation fees and costs," (8) to take but a few examples, are all regulations governed by the more permissive compelled-commercial-disclosure standard created by Zauderer.

Yet courts have consistently struggled to determine how to interpret Zauderer's more lenient test. (9) The Supreme Court has discussed Zauderer's disclosure requirements in only a handful of cases since 1985, (10) and in the wake of this relative silence, circuits have split on both Zauderer's reach (what types of disclosures it covers) (11) and its form (how it applies to disclosures within its bounds). (12) Some of this confusion is likely attributable to the ambiguity with which this standard was first defined--neither a government interest in "preventing deception" nor a requirement that disclosures be factual and uncontroversial (later additions to this test) is a model of clarity for judges. (13)

However, a significant, and often unremarked, factor contributing to this uncertainty is the increasingly divergent treatment of commercial speakers' rights by courts evaluating restrictions on commercial speech and compelled commercial disclosures. (14) While a number of commentators have suggested that the First Amendment has become progressively more solicitous of commercial interests, (15) this claim is not entirely correct. Courts have been generous to legislatures in applying the standard set out in Zauderer to uphold disclosure obligations imposed on commercial actors. Indeed, the past decade has arguably seen a steady expansion both in the scope of this more lenient review and in the extent to which consumer interest is considered when determining the permissibility of compelled disclosures.

Nonetheless, in recent years the increasing deference shown to commercial actors in the context of restrictions on commercial speech has begun to make its presence felt in this area of the law. In a number of cases, courts have either excluded otherwise-permissible disclosures from Zauderer's reach for fear that they would encroach too significantly on commercial actors' speech, or else relied on the hitherto relatively unused requirement that a disclosure be "factual and uncontroversial" to strike these regulations down. This disconnect between the broader trend toward expanding Zauderer's reach--which necessarily results in a greater encroachment on commercial actors' speech--and recent attempts to rely on relatively novel aspects of Zauderer's test to shield commercial actors from certain regulations has deepened courts' and litigants' uncertainty regarding this area of the law.

This Note will explore the tension between these conflicting impulses within courts' analysis of compelled commercial disclosures and propose a path forward to minimize doctrinal confusion. …

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