The Demise of a Workable Commercial Speech Doctrine: Dangers of Extending First Amendment Protection of Commercial Disclosure Requirements

Article excerpt

I. Introduction

When the Supreme Court's decision in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.1 expanded the First Amendment's protection of speech to encompass pure commercial speech, Justice Rehnquist warned that the Court would soon be sliding down a slippery slope.2 Rehnquist feared that overextending First Amendment protection to commercial speech would destroy "the possibility of understandable and workable differentiations between protected speech and unprotected speech."3

Despite Rehnquist's premonition, the Supreme Court managed to develop a workable commercial speech doctrine in which First Amendment protection was extended to speech in the commercial context, but the historical distinctions between commercial and noncommercial speech were respected and maintained.4 The Court did not "equate commercial and noncommercial speech for First Amendment purposes" when it acknowledged that commercial speech is entitled to protection; rather, it reasoned that the distinctions between the two categories of speech justify subjecting governmental regulations of commercial speech to a review less strict than that applied to regulations of political speech.5 The Court recognized that the interests implicated in the commercial sphere are profit-based and, arguably, less substantial than those the First Amendment traditionally protects; therefore, the lesser protection afforded commercial speech is "commensurate with its subordinate position in the scale of First Amendment values. "6 Furthermore, the Court found justification for subjecting regulations of commercial speech to a lesser scrutiny on the grounds that the government historically has been free to regulate commercial transactions.7 The Court also developed a commercial speech jurisprudence which recognized that not all commercial speech regulations are the same. The Court deemed that complete suppression of commercial speech was the most dangerous of such regulations and, therefore, entitled to greater First Amendment scrutiny than other restrictions of the right to speak in the commercial context.8 The Court warned that "special dangers" attend blanket bans on commercial speech because they unjustly prohibit speech in a paternalistic attempt to "protect" consumers by keeping commercial information from them.9 At the opposite end of the commercial speech spectrum are commercial disclosure requirements, the least restrictive form of commercial speech regulations and the subject of this Note. The Court acknowledged that there are "material differences between disclosure requirements and outright prohibitions on speech."10 Unlike complete suppressions of commercial speech, commercial disclosure requirements encourage the free flow of consumer information in the marketplace, which is consistent with the original purpose behind expanding the First Amendment to encompass commercial speech. The Court reasoned that because the speaker's interest in withholding commercial information from the consumer is "minimal,"11 commercial disclosure requirements are subjected to a less exacting constitutional scrutiny.12 The lower level of protection afforded commercial speech and the recognition of the differences inherent in the types of commercial speech regulations enabled the Court to strike a delicate balance-adequately protecting commercial speech interests while remaining sensitive to the need for governmental regulation to protect the consumer.

Currently, however, a new trend in the commercial speech dialogue threatens to disrupt this balance and realize Rehnquist's prediction. Members of both the judiciary and the academy argue that there are no proper bases for distinguishing commercial from noncommercial speech, proposing that all protected speech be subjected to equal First Amendment protection.13 These proponents of abolishing the traditional distinction between commercial and noncommercial speech justify their position by arguing not only that the text of the First Amendment does not distinguish between the commercial and the noncommercial, but also that the Framers of the Constitution failed to make the distinction.14 They claim that the commercial-noncommercial speech distinction lacks both a solid, rational foundation and a basis in history.15 In fact, they claim that the distinction did not even exist until 1942, when the Supreme Court promulgated it in Valentine v. Chrestensen.16 Such sentiments were recently reflected in Justice Thomas's concurrence in 44 Liquormart, Inc. v. Rhode Island:17 "I do not see a philosophical or historical basis for asserting that 'commercial' speech is of `lower value' than 'noncommercial' speech."18

Justice Thomas and his fellow proponents, however, fail to acknowledge the historical development of the free speech doctrine and the rationale behind the traditional deference to commercial speech regulations. As noted by First Amendment scholar William Van Alstyne, "commercial speech was . . . treated mostly as `commerce,' and little (if at all) as `speech"19 prior to Virginia Pharmacy Board.20 There was no distinction between commercial and political speech simply because commercial speech was not considered to be "speech" at all. Political speech was deemed the sole embodiment of the free speech doctrine, and it was given a preferred position among all constitutional rights21 because of the essential role it plays in "the operation of a constitutional democracy."22 In contrast, the Court analyzed commercial speech not as a speech right but as an economic right and reviewed governmental attempts to regulate it under the Fifth Amendment's substantive due process clause.23 Commercial speech as an economic right was deemed unworthy of First Amendment protection because it failed to further the goals of democracy24 and was believed to deceive and misguide the public if left unregulated.25 This traditional mistrust of an unregulated market motivated deference to the legislature.26 As Van Alstyne acknowledged, "The latitude of regulatory state power in respect to commercial speech or commercial advertising generally was treated by the Supreme Court as an included part of the latitude of regulatory state power over the general 'liberty ' . freedoms of entrepreneurs . . . . "27 When the commercial speech doctrine was introduced in Virginia Pharmacy Board, the Court maintained the distinction between political speech and commercial speech by recognizing the need to uphold certain governmental regulations of commercial speech to ensure an honest market and protect the consumer's access to informed decisionmaking. The lesser protection afforded commercial speech preserved the ability to protect the consumer.

Those who advocate blurring the distinctions between commercial and noncommercial speech threaten the balance that the present commercial speech doctrine achieves. What these critics fail to realize is that "when there are no standards for determining why some speech is afforded more constitutional protection than others, the very basis for singling out speech for constitutional protection is undermined"28-political speech loses its preferred position, and courts lose the ability to uphold the legislature's attempts to create an open and honest market. The threat of subjecting governmental regulation of commercial speech to higher standards of review endangers the workability of the current commercial speech doctrine and pushes it down the slippery slope that Rehnquist predicted. Many courts have shown signs of affording commercial speech greater First Amendment protection, suggesting the influence of recent scholarly commentary favoring the abandonment of a categorical approach to commercial speech.29 This has given rise to "the fear that large corporations and wealthy individuals . . . recently have been getting too much shelter from the First Amendment."30

Perhaps no case evinces this trend as well as the recent Second Circuit decision, International Dairy Foods Ass'n v. Amestoy,31 in which a Vermont law compelling dairy farmers to label dairy products derived from cows treated with synthetic growth hormones was declared unconstitutional under the First Amendment.32 The Amestoy decision marks a great and dangerous expansion of free speech doctrine. For the first time, a federal appellate court has invalidated a statute requiring disclosure of truthful, nonmisleading commercial speech as violative of the First Amendment.33 In so doing, the court failed to recognize not only the unique status afforded disclosure requirements in the commercial speech doctrine, but also the distinctions between noncommercial and commercial compelled speech.34

If integrity in the market is to be maintained and the consumer's right to commercial information is to be protected, disclosure requirements in the commercial context-more so than any other kind of regulation-must be reviewed with deference to the government. By infringing on the government's right to compel truthful and nonmisleading disclosures in the commercial context, the Amestoy court is setting a dangerous precedent by blurring the distinction between commercial and noncommercial speech, threatening to undermine the free flow of information in a democratic society, and inviting business interests to challenge other statutory commercial disclosures beneficial to the public.

The Amestoy court extended First Amendment protection to commercial disclosure requirements. This Note argues that Amestoy was wrongly decided. The court not only failed to honor the historical and public-policy minded distinctions between commercial and noncommercial speech, it also failed to distinguish disclosure requirements from other regulations typically subjected to First Amendment scrutiny in the commercial context. When these distinctions are fully exposed and precedent is correctly followed, expanding free speech to encompass purely commercial disclosure requirements is, at the very least, questionable.

After discussing the Amestoy decision and the key dissent by Judge Leval in Part II, this Note argues that disclosure requirements in the commercial context should not be subjected to First Amendment scrutiny. In Part III, the development of the commercial speech doctrine is explored to illustrate the Supreme Court's intention that the distinctions between commercial speech and political speech be respected and maintained. Part IV discusses the inherent differences between complete bans on speech and commercial disclosure requirements and acknowledges that compelled speech in the commercial context has long been deemed least deserving of protection.35 Part IV also suggests that the Central Hudson test, which was originally intended to apply solely to complete bans on speech, should not be applied to commercial disclosure requirements. Subpart V(A) proposes that there is no need to extend the free speech doctrine to encompass commercial disclosure requirements for the following reasons: (1) the right not to speak exists only in political speech,36 (2) the governmental interest in requiring commercial disclosures is consistent with the rationale behind the decision to extend First Amendment protection to commercial speechto encourage the free flow of commercial information,37 and (3) deference should be given to the legislature's knowledge of its citizens' consumer concerns.38

Finally, in subpart V( B), this Note argues for a constitutional standard for commercial disclosure requirements that does not implicate the First Amendment. Challenges to commercial disclosure requirements should no longer be framed as an assertion of individual speech rights, but as one of economic rights. This change of perspective allows courts to abandon First Amendment analysis (like the Amestoy court's) and revive the substantive due process analysis that originally applied to commercial advertising cases. A substantive due process analysis is more than adequate to guard against the only types of commercial disclosure requirements that deserve constitutional scrutiny-those that are unduly burdensome and unreasonable. This Note maintains that a substantive due process analysis will work to invalidate those requirements that prove constitutionally unsound while upholding those that protect the consumer's right to informed decisionmaking. Only when First Amendment protections are removed from commercial disclosure requirements will the integrity of the First Amendment be preserved and will reasonable legislation designed to help the public make informed consumer decisions be allowed to stand.

II. The Amestoy Decision

In 1995, International Dairy Foods Association, a trade association for manufacturers of dairy products in Vermont, filed suit in federal district court, seeking a preliminary injunction to prevent enforcement of a staterequired labeling law on the ground that the law violated the First Amendment.39 The Vermont statute provided that "[i]f rBST [a recombinant bovine growth hormone] ha[d] been used in the production of milk or a milk product for retail sale in this state, the retail milk or milk product shall be labeled as such."40 Dairy manufacturers who used rBST were given labeling options to comply with the statute, including applying a label or sticker to the milk product. The label or sticker contained no text, but referred the consumer to the following sign which was to be placed where milk products are sold:

rBST Information

THE PRODUCTS IN THIS CASE THAT CONTAIN OR MAY CONTAIN MILK FROM rBST-TREATED COWS EITHER ( I ) STATE ON THE PACKAGE THAT rBST HAS BEEN OR MAY HAVE BEEN USED, OR (2) ARE IDENTIFIED BY A BLUE SHELF LABEL ..., OR (3) A BLUE STICKER ON THE PACKAGE . . . The United States Food and Drug Administration has determined that there is no significant difference between milk from treated and untreated cows. It is the law of Vermont that products made from the milk of rBST-treated cows be labeled to help consumers make informed shopping decisions.41

The district court upheld the disclosure requirement, claiming that "Vermont has a substantial interest in informing consumers of the use of rBST in the production of milk and dairy products sold in the state,"42 but the majority of the Second Circuit panel deemed the statute unconstitutional as violative of the First Amendment and granted the preliminary injunction.43 The circuit court relied on the premise that the First Amendment "right not to speak inheres in political and commercial speech alike."' Although the circuit court recognized that commercial speech is inherently different from political speech and normally accorded less protection, it failed to engage in a threshold analysis of the interests to be protected in commercial disclosure requirements to determine if the First Amendment should necessarily be implicated. Rather, the circuit court concluded that the statute offended the First Amendment because it required the dairy manufacturers "to speak when they would rather not. "45

The circuit court then subjected the disclosure requirement to a fourpart analysis developed by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission46 to determine the permissibility of the government restriction.47 The Central Hudson test consists of the following inquiries: (1) whether the commercial speech is protected by the First Amendment, concerns lawful activity, and is not misleading; (2) whether the government's interest in restricting the commercial speech is substantial; (3) whether the restriction directly serves the asserted interest; and (4) whether the restriction is no more restrictive than necessary.48 Although the Central Hudson case dealt exclusively with a governmental restriction on speech,49 the Amestoy courts50 applied the same test to Vermont's commercial disclosure requirement, refusing to acknowledge the special status accorded to disclosure requirements.51 The Amestoy court held that Vermont failed to meet the burden of justifying its disclosure requirement because it could not establish a substantial interestthe second prong of the Central Hudson test.52

Arguing that the government has a substantial interest "on the basis of `strong consumer interest and the public's right to know,' Vermont asserted that its disclosure requirement was justified. "53 The circuit court, however, found the asserted interest insufficient to justify the compelled disclosure. It held that "consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement . . . in a commercial context."54 The court focused instead on the fact that there was no health or safety justification for passage of the statute, referring to the FDA's conclusion that "there are no human safety or health concerns associated with food products derived from cows treated with rBST."55 Because the FDA found the hormone posed no significant health risks, the court asserted that the disclosure was unnecessary and refused to validate the state's interest in the consumer's right to informed decisionmaking.56

Judge Leval dissented from the majority opinion, urging that "[t]he majority's invocation of the First Amendment to invalidate a state law requiring disclosure of information consumers reasonably desire stands the Amendment on its ear. "57 Judge Leval focused the dissent on proving that Vermont's asserted interest (informing its citizens of the use of rBST in dairy products) is substantial enough to justify the restriction on commercial speech, and, therefore, meets the second prong of the Central Hudson test. He found that Vermont's interest was based on more than just consumer curiosity, citing "health, economic, and ethical concerns,"58 and reproached the majority for relying on the FDA's testing results as sole proof that rBST poses no health concerns: "Genetic and biotechnological manipulation of basic food products is new and controversial. Although I have no reason to doubt that the FDA's studies of rBST have been thorough, they could not cover long-term effects of rBST on humans."59 The dissent acknowledged that it would be both dangerous and unreasonable to rely on the FDA's short-term study of such new technology, especially when consumers voice concern over the potential health risks associated with the new technology and express a desire to know when and where it is being used.60Judge Leval also pointed out that, "[n]otwithstanding their self-righteous references to free expression, the true objective of the milk producers is concealment" because "there are consumers who, for various reasons, prefer to avoid rBST."61 Finally, he acknowledged that this interest should be given little First Amendment protection because "the primary function of the First Amendment in its application to commercial speech is to advance truthful disclosure-the very interest that the milk producers seek to undermine. "62

Judge Leval correctly recognized that the government's interest in requiring commercial disclosure is consistent with the rationale behind the decision to extend First Amendment protection to commercial speechencouraging the free flow of commercial information in the marketplace.63 However, Leval focused his attack on the wrong problem: instead of trying to prove that the Vermont law should pass the Central Hudson test, Leval should have argued that commercial disclosure requirements should not be subjected to the Central Hudson test at all.

The Central Hudson test was intended for complete bans of commercial speech-the type of speech that has been deemed "particularly dangerous because [it] all but foreclose[s] alternative means of disseminating certain information."64 Commercial disclosure requirements, on the other hand, traditionally have been tolerated because the First Amendment interests they implicate have been expressly identified as weak.65 Subjecting all commercial speech to the same test is the first step toward eradicating the distinctions that have developed in the commercial speech doctrine, including the distinction between commercial and noncommercial speech. If other courts adopt the precedent established by Amestoy, eventually all speech, commercial and noncommercial, will be treated similarly, and government regulations of speech (no matter how legitimate) will be subjected to the strict scrutiny of current political speech regulations.66To avoid this slippery slope that Rehnquist predicted, courts should not apply First Amendment protection to commercial disclosure requirements; such protection is not only unnecessary, but also it ignores precedent and public-policy concerns.

The First Amendment is not implicated when the speaker's sole interest in not speaking is to conceal truthful, nonmisleading information that is important to consumers. The Second Circuit panel failed to recognize key developments in the modern commercial speech doctrine, and instead fell victim to the sentiments of those seeking to abolish the distinction between commercial and noncommercial speech. By according First Amendment protection to commercial disclosures, the Amestoy opinion assimilated in the commercial context a right not to speak that makes sense only in the political context. By ignoring the differences between political and commercial compelled speech, the court undermined the protected speech doctrine by trivializing the importance of First Amendment protection of the right not to speak: "When everyone can speak, and everything can be said, speech has ceased to be special."67

III. The Development of the Commercial Speech Doctrine: Distinguishing Between Political and Commercial Speech

In the 1942 case of Valentine v. Chrestensen, the Supreme Court upheld a New York law prohibiting distribution of any advertising matter on public streets, holding that the First Amendment "imposes no such restraint on government as respects purely commercial advertising."68 The Court's holding reflected the "double standard of constitutional review in which judges would defer to legislative regulation of the economy but scrutinize legislative regulation of noneconomic rights, including the right to free speech. "69 Understanding the historical bases and the publicpolicy justifications for distinguishing between commercial and noncommercial speech helps to explain why the protection now afforded commercial speech must be less than that afforded noncommercial speech.

A. The Historical Distinctions Between Commercial and Political Speech

Professor G. Edward White has written extensively about the development of this double standard of review, which he termed "the bifurcated review project."70 According to Professor White, First Amendment protection of political, noncommercial speech had come to occupy a "`preferred position' in constitutional jurisprudence and in American culture"71 because of the "`indispensable connection' between free speech and the meaning of democracy in America."72 Since free speech embodied two essential elements of democracy, namely the idea of "creative selffulfillment (freedom to express oneself) and equality (freedom from discrimination or oppression),"73 protecting political, noncommercial speech became synonymous with protecting the ideals of democracy, White argued.74

In contrast to the preferred position held by political, noncommercial speech, commercial speech as an economic right had been regarded as a threat to the ideals of democracy for most of this century.75 The preferred position of political speech and its role in adhering to the ideals of democracy functioned as a justification for distinguishing it from commercial speech. As Professor Eric Barendt explains,

Political speech is immune from restriction, because it is a dialogue between members of the electorate and between governors and governed, and is, therefore, conducive, rather than inimical, to the operation of a constitutional democracy. The same is not so obviously true of other categories of `speech,' for which the protection of the free speech clause may be claimed[,] ... [including] commercial advertising.76

Commercial advertising was unprotected under the First Amendment because it was not considered "speech."77 Rather, the right to advertise was viewed as an economic right"s and subject to governmental regulation to protect against "undemocratic economic excesses"79 that could result if left unregulated.80 Because this right did not "embod[y] the ideal of democracy," it was deemed unworthy of free speech protection.81 As Professors Thomas Jackson and John Calvin Jeffries, Jr. explained, the First Amendment was developed to protect the values of "effective selfgovernment" and "individual self-fulfillment through free expression."82 They reasoned that because "[n]either value is implicated by government regulation of commercial speech," the First Amendment should not protect such "speech."83 In other words, because the speaker's interest in commercial speech was its ability to increase profit rather than its ability to contribute to "a debate over governmental action"84 or to further "the development of [the speaker's] own personality,"85 the free speech doctrine did not include commercial speech. As a result, judges deferred to legislative regulation of economic rights, including regulation of what we now consider to be commercial speech. "Such deference not only alleviated fears of an undemocratic substitution . . . of judicial [theories] for legislative theories of the economy, it left in place legislative regulations designed to alleviate the undemocratic consequences of the unregulated economic marketplace."86

In 1976, the Supreme Court reversed its view that commercial speech lies outside the protected speech doctrine. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., the Court faced the issue of "whether speech which does 'no more than propose a commercial transaction,' . . . is so removed from any 'exposition of ideas,' . . . and from 'truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government,' . . . that it lacks all protection. "87 Deeming unconstitutional a Virginia law that forbade advertising of pharmacy drug prices, the Court decided the question presented in the negative and extended First Amendment protection to commercial speech.88 The Court based its decision on the importance of the "free flow of commercial information."89 As the Court explained:

So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable. 90

It is the public's interest in receiving accurate commercial information that propelled the Court to extend First Amendment protection to commercial speech: "[P]eople will perceive their own best interests if only they are well enough informed, and . . the best means to that end is to open the channels of communication rather than to close them. "91

The Court justified the expansion of First Amendment protection to commercial speech on the consumer's right to accurate commercial information. This justification has been articulated as a recognition that the First Amendment

embraces the interests of both the speaker and the prospective audience, which, in the case of commercial speech, consists of consumers. The consumers' interest, which is in obtaining information on which to base the decision of whether to buy, . . . is served by insuring that the information is not false or deceptive . . .92

This rationale differs from that of political speech, which finds its roots in the speaker's right to speak.93 Commercial speech, on the other hand, was accorded protection because of the perceived importance of the listener's right to hear. As Justice Justice Blackmun said. "[T]he listener's First Amendment interests, from which the protection of commercial speech largely derives, allow for certain speech doctrine was of government regulation that would not be permitted outside the context of commercial speech."94 Because the commercial speech doctrine was created to ensure that the public would receive accurate commercial information, the rights of the listener and not just those of the speaker must be considered when evaluating regulations of commercial speech.95

While the commercial speech doctrine did afford commercial speech First Amendment protection, it did not completely abandon the historical deference to governmental regulation of commercial speech. Nor did it abandon the recognition of the differences between commercial and noncommercial speech. In accordance with this distinction, the commercial speech doctrinedictates that speech "proposing a commercial transaction"96 accorded political speech Courts solely to the economic interests of the speaker and its audience"97 are entitled to a lesser protection than the strict scrutiny accorded political speech.98 Courts maintained this twotiered First Amendment protection throughout the development of the commercial speech doctrine. Consequently, the Court has stated that the government may regulate commercial speech more freely.99

The lesser protection afforded commercial speech has come under attack in recent years. Opponents of the two-tiered system claim that there is no rational basis justifying commercial speech's lower constitutional value.100 These opponents, however, either ignore or summarily dismiss the many explanations proffered by the Court for separating commercial speech from the preferred position accorded to political speech.

B. The Public-Policy Justifications for Distinguishing Between Commercial and Political Speech

The most commonly asserted justification for according commercial speech less protection involves "the 'common-sense' distinction between speech proposing a commercial transaction . . . and other varieties of speech."101 Many have claimed that the "common-sense" differences are often difficult to ascertain and do not justify the bifurcated treatment of commercial and noncommercial speech.102 But, as Justice Rehnquist said in his blistering dissent in Virginia Pharmacy Board:

It is one thing to say that the line between strictly ideological and political commentaries and other kinds of commentary is difficult to draw, and that the mere fact that the former may have in it an element of commercialism does not strip it of First Amendment protection. But it is another thing to say that because that line is difficult to draw, we will stand at the other end of the spectrum and reject out of hand the observation . . . that the protections of that Amendment do not apply to a "'merchant' who goes from door to door 'selling pots.'''103

Although the courts now extend First Amendment protection to this potselling merchant, the thrust of Rehnquist's argument is still applicable. The mere existence of difficulty does not mandate that we should give up trying and abandon the distinction altogether. To do so would ignore the important policy rationales behind affording commercial speech less First Amendment protection, such as the need to support government regulation of speech in the commercial context to ensure that truthful, nonmisleading information is available to the consumer. Furthermore, the line-drawing is not as difficult as one may assume: "Typically, our intuitions about what is more and less commercialized are adequate. Distinctions in kind and of degree usually are easy to make."104In addition, the courts will treat speech as noncommercial in those rare cases where the line is exceedingly difficult to draw. As one court stated, when "the component parts of [a] single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Therefore we apply one test for fully protected expression."105

Commercial speech traditionally has been subjected to government regulation. 1 The fact that the legislative branch historically has possessed the right to regulate commerce justifies affording less strict scrutiny to commercial speech regulations in order to ensure that the legislature's right to regulate will not be unreasonably impaired. Commercial speech regulation is needed to protect the consumer from false and misleading commercial information.107 This justification echoes those given before Virginia Pharmacy Board, when First Amendment protection was denied to commercial speech because such speech was suspected of threatening the "ideal of democracy."108 As the Supreme Court stated: "In light of the greater potential for deception or confusion in the context of certain advertising messages, content-based restrictions on commercial speech may be permissible. "109

The Court also relies on the greater "objectivity" and "hardiness" of commercial speech, which works to diminish a regulation's chilling effects, 110 to justify its secondary protection. The objectivity of commercial speech has been cited for making such speech "more easily verifiable by its disseminator than . . news reporting or political commentary, in that ordinarily the advertiser seeks to disseminate information about a specific product or service that he himself provides and presumably knows more about than anyone else."111 As Eric Barendt stated,

[I]n so far as it is easy for an advertiser to know whether the claim for his product is accurate or not, there can be little objection to the proscription of false descriptions; there is no danger here that speech which ought to be covered by a free speech provision will be inhibited.112

The hardiness of commercial speech has been attributed to the fact that commercial speech is "inspired . . . by the profit motive."113 The argument is as follows:

[T]he profit motive breaks the crucial link between the real beliefs of the producer or advertiser and his speech, so that the latter cannot be considered a serious manifestation of his attitudes. It is, therefore, unworthy [or less worthy] of legal protection. The advertiser is trying to market a product, not to communicate an idea.114

The Court has deemed the commercial speaker's interest in protecting the profit motive to be less valuable than the political speaker's interest in communicating autonomous ideas and personal beliefs.115 The interests implicated by commercial speech regulations do not require strict scrutiny; rather, they can be adequately protected by affording the commercial speaker a lesser First Amendment right. The intermediate scrutiny allows courts to determine that, on balance, the right of the consumer to an honest market may outweigh the commercial speaker's free speech rights.

The purpose behind extending First Amendment protection to commercial speech and the justifications for according commercial speech a secondary protection illustrate that the Supreme Court intended to keep commercial speech distinct from noncommercial speech. In a nutshell, it is the distinctly different interests served by protecting commercial versus noncommercial speech that justify maintaining this categorical distinction: Although First Amendment protection of noncommercial speech is justified by the speaker's right to free expression on matters of conscience (a basic tenet of democracy), the primary justification for protecting commercial speech is the public's right-as listener-to the free flow of accurate commercial information in order to make informed consumer decisions. The secondary status attributed to commercial speech reflects recognition of the need for government regulations to ensure that the information the speaker wishes to send is honest and not misleading, and that the information the speaker wishes to conceal is not vital to the public. As such, failing to distinguish between commercial and noncommercial speech "could invite dilution, simply by a leveling process, of the force of the Amendment's guarantee with respect to the latter kind of speech."116 Understanding the importance of the historical and policy-minded distinctions between commercial and noncommercial speech is the first step to understanding the danger in Amestoy's extension of the First Amendment's protection to disclosure requirements in the commercial context.

IV. Differences Within the Commercial Speech Doctrine: Complete Bans and Restrictions Versus the Unique Status of Disclosure Requirements

Nearly every court faced with a commercial speech issue has applied the Central Hudson test since it was first articulated in 1980.117 The four-prong test is designed to balance the interest of the government in restricting commercial speech and the interest of the public in receiving the commercial information being withheld. Although the commercial speech doctrine dictates that government regulations of commercial speech be subjected to a less strict review than those of political speech, requiring what has been termed an "intermediate review" of the justifications behind commercial regulations, the Central Hudson test poses quite a difficult hurdle to clear.118 Under Central Hudson, if the speech to be regulated is "neither misleading nor related to unlawful activity,"119 the government bears the difficult burden of asserting a "substantial interest to be achieved by restrictions on commercial speech" and proving that the regulation "directly advance[s]" the asserted state interest and is the most "limited restriction on commercial speech" available to serve that interest.120 This test has been the subject of much criticism ever since it was articulated. 121 It often amounts to an insurmountable barrier to constitutional approval of commercial regulation. In fact, most regulations subjected to the Central Hudson test fail to meet its stringent requirements.122 The Supreme Court has applied the Central Hudson test to all but one of the commercial speech cases it has heard since 1980.123 Of those to which Central Hudson was applied, only five cases have survived Central Hudson scrutiny. 124

This statistic demonstrates the danger of applying Central Hudson to all types of commercial speech cases. The Central Hudson test was not designed for universal application to all commercial speech regulations. It was articulated in a case that dealt specifically with the government's complete suppression of commercial speech.125 The Court in Central Hudson acknowledged that it was dealing with the most protected form of commercial speech: "We review with special care regulations that entirely suppress commercial speech . . ,"126 Although the Court acknowledged that regulation of commercial speech requires less than strict review, it created the four-prong Central Hudson test in the context of its greater concerns about the nature of a complete suppression of speech. If the regulation at issue in Central Hudson had not been a complete suppression of commercial speech, the Court may have devised a completely different test-one more aligned with the subordinate protection afforded commercial speech.

Other courts have commented on the special dangers that a complete suppression of commercial speech invites and the need to review such regulations with great caution. In 44 Liquormart, the Court invalidated a complete prohibition on advertisements of retail prices of alcoholic beverages,127 with four justices noting Central Hudson's conclusion that "'special care' should attend the review of such blanket bans."128 Three of the four-Stevens, Kennedy, and Ginsburg-expanded on this premise, warning:

The special dangers that attend complete bans on truthful, nonmisleading commercial speech cannot be explained away by appeals to the "commonsense distinctions" that exist between commercial and noncommercial speech.

. . . [B]ans that target truthful, nonmisleading commercial messages rarely protect consumers from [commercial] harms ... [T]hese commercial speech bans not only hinder consumer choice, but also impede debate over central issues of public policy. 129

After recognizing that the Central Hudson test was developed in a case also concerning a complete ban on commercial speech and determining that the test could adequately take into account the Justices' concerns about the dangers of absolute prohibitions, they applied Central Hudson to the ban on price advertising and deemed the law unconstitutional.130

Although Central Hudson specifically addresses the dangers of complete prohibitions on commercial speech, its application has not been limited to cases concerning these complete bans. The Central Hudson test has been used to review regulations that do not completely prohibit commercial speech and, most recently with the Amestoy case, to review commercial disclosure requirements.131 Applying Central Hudson's test uniformly to all types of commercial speech ignores the special circumstances surrounding the development of the test-that it was intended specifically to provide the Court with a more strict review over complete bans on commercial speech. Members of the Supreme Court have stated that "[w]hen a state entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands."132 The fact that the Central Hudson test was developed when there was "far less reason to depart" from that rigorous review indicates that the test was intended to apply solely to complete bans and not to other regulations of commercial speech that require greater deference.

Furthermore, members of the Court have struck down arguments proposing to treat all regulations of commercial speech uniformly. As they stated in 44 Liquormart,

Rhode Island errs in concluding that all commercial speech regulations are subject to a special form of constitutional review simply because they target a similar category of expression. The mere fact that messages propose commercial transactions does not in and of itself dictate the constitutional analysis that should apply to decisions to suppress them.133

These Justices then acknowledged that forms of commercial regulation other than complete bans should be subjected to a different review than the Central Hudson test designed for outright suppression of commercial speech: "When a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information, the purpose of its regulation is consistent with the reasons for according constitutional protection to commercial speech and therefore justifies less than strict review."134

The Central Hudson test, then, should be limited to complete bans of commercial speech and should no longer be applied to cases for which it was not designed. The Amestoy court should not have subjected the Vermont disclosure requirement to Central Hudson scrutiny. The court's misapplication of Central Hudson ignored not only the purposes for which the test was intended, but also the special status of commercial disclosure requirements in general, which was recognized in Zauderer v. Office of Disciplinary Counsel.135 The Zauderer opinion highlights the uniqueness of disclosure requirements in the commercial context, refusing to apply the full Central Hudson analysis to such requirements.136

In Zauderer, the Supreme Court acknowledged the distinction between commercial disclosure requirements and outright prohibitions on commercial speech. The Court reviewed an Ohio law which required attorneys who advertised their services on a contingency fee basis to disclose that clients would be held liable for costs even if their claims proved unsuccessful. Philip Zauderer challenged as violative of the First Amendment this disclosure requirement as well as other restrictions on his right to advertise that were implicated by the statute. The Court applied the Central Hudson test to the restrictions on speech and found them unconstitutional. When Zauderer argued that the disclosure requirement was subject to the same Central Hudson test that was applied to the restrictions on speech, the Court responded by saying that Zauderer "overlooks material differences between disclosure requirements and outright prohibitions on speech. . . . Ohio has not attempted to prevent attorneys from conveying information to the public; it has only required them to provide somewhat more information than they might otherwise be inclined to present."137 The Court refused to subject the disclosure requirement to the full Central Hudson inquiry, opting instead to apply a less stringent version of the test by eliminating the fourth prong-the leastrestrictive-means analysis under which the regulation on speech is struck if "there are other means by which the State's purposes may be served."138 The Court reasoned that, although this analysis was suitable for outright prohibitions on speech, "all our decisions of restraints on commercial speech have recommended disclosure requirements as one of the acceptable less restrictive alternatives to actual suppression of speech."139 The Ohio disclosure requirement was accordingly upheld.

The Zauderer Court singled out the commercial disclosure requirement as the weakest and least restrictive of commercial speech regulations. The Court found a substantially weaker First Amendment interest for manufacturers subject to commercial disclosure requirements than for those who are completely prohibited from speaking.140 As a result, "[t]he right of a commercial speaker not to divulge accurate information regarding his services [or products] is not such a fundamental right."141 The Court also recognized that the interest of the government in requiring disclosure is consistent with the original purpose behind extending First Amendment protection to commercial speech-the need to encourage the free flow of commercial information.142 Recognizing that consumers value the information provided by some commercial speech, the Court found that "appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal."143

For these reasons, the Central Hudson test should not be applied to commercial disclosure requirements. Zauderer recognized that commercial disclosure requirements, more than any other type of regulation of commercial speech, deserve deference.144 Applying Central Hudson to this type of commercial speech regulation makes such deference impossible. Moreover, it misconstrues the intention of Central Hudson, which was to provide the means to subject the most dangerous commercial speech regulation to a review more similar to the strict scrutiny of political speech. 45

In applying the Central Hudson test to commercial disclosure requirements, the Amestoy court assumed that such regulations are entitled to First Amendment protection. The court, however, never considered whether commercial disclosure requirements necessarily invoke First Amendment interests. Part V of this Note examines the special status of commercial disclosure requirements and finds that they do not warrant First Amendment scrutiny. Therefore, this Note offers an argument to remove such requirements from the reach of the First Amendment.

V. Eliminating First Amendment Protection of the Commercial Disclosure Requirement

Zauderer emphasized the weakness of the First Amendment interests implicated by commercial disclosure requirements. Even prior to Zauderer, other courts had recognized the special status conferred to commercial disclosure requirements and had found reasons to defer to and validate them.146 There was never a need to argue that affording First Amendment protection to commercial disclosure requirements is unnecessary-courts had acknowledged the place of such requirements in the commercial speech doctrine and refused to invalidate them under First Amendment scrutiny. 147 Today, in the wake of Amestoy and the dialogue threatening to abolish the traditional distinctions between commercial and noncommercial speech, the special status of commercial disclosure requirements is at risk. Therefore, an argument to remove commercial disclosures from the protected speech doctrine must be heard.

A. The Risks of Including Commercial Disclosure Requirements in the Protected Speech Doctrine

Extending First Amendment protection to commercial disclosure requirements is dangerous because it gives commercial speakers powerful ammunition to challenge any statute that requires them to disclose what they would rather keep to themselves. Legislatures have passed laws that require cigarette manufacturers to disclose the hazards of tobacco,148 food distributors to reveal percentages of fat in their products,149 and publicly traded corporations to release their proxy statements to the Securities and Exchange Commission.150 These disclosures are obviously not beneficial to the commercial speaker because they increase costs without increasing revenues; however, government regulations require commercial speakers to disclose such information because the interest in preventing a commercial loss pales beside the consumer's interest in access to commercial information. If commercial speakers can claim a First Amendment interest every time legislation requires disclosure of truthful information and subject such legislation to a Central Hudson analysis, the consumer's right to vital commercial information may be doomed. Commercial disclosure requirements should not be afforded First Amendment protection for the following reasons: (1) the right not to speak should be recognized only when that right involves freedom of conscience, (2) disclosure requirements advance the First Amendment interest in the free flow of commercial information, and (3) deference should be given to the legislature's knowledge of its citizens' consumer concerns.

1. The Right Not to Speak.-The majority in Amestoy held that "the right not to speak inheres in political and commercial speech alike."151 The majority relied on such political-right-not-to-speak cases as West Virginia State Board of Education v. Barnette,152 Wooley v. Maynard,153 and Miami Herald Publishing Co. v. Tornillo154 to support its contention that the commercial speaker has a First Amendment right not to speak.155 The court, however, failed to distinguish the interests implicated by a right not to speak in a commercial context from those implicated by the right in the political forum.

The political right not to speak embodies those ideals of democracy that propelled political freedom of speech to its "preferred position" among constitutionally protected rights.156 It protects a freedom of consciencea right not to be forced to adopt the political, moral, or religious views of another. 157 For example, in Barnette, the Court struck down a law compelling school children to salute and pledge to the American flag as "invad[ing] the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control."158 The Court found that the "compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind,"159 violating the constitutional tenet that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."160 In boley, the Court struck down a New Hampshire law requiring vehicles to bear license plates displaying the state motto, "Live Free or Die."161 The Court found that the law "forces an individual, as part of his daily life-indeed constantly while his automobile is in public view-to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable."162 Finally, in Tornillo, the Court invalidated a right-to-reply statute which forced newspapers assailing the character of a political candidate to print the candidate's reply free of charge.163 The Court found that the statute "fails to clear the barriers of the First Amendment because of its intrusion into the function of editors" by dictating, among other things, "the choice of material to go into a newspaper, and . . . [the] treatment of public issues and public officials."164 Like the statutes at issue in Barnette and boley, the rightto-reply statute in Tornillo violated the First Amendment political right not to speak in its restriction of the speaker's freedom of conscience by mandating adherence to a political view or ideology with which the speaker does not agree.

The commercial right not to speak, on the other hand, implicates only a right not to disclose commercial information that previously has been deemed important to consumer decisionmaking. Unlike the statutes at issue in Barnette, Wooley, and Tornillo, the Vermont law deemed unconstitutional in Amestoy did not attempt to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion"165 or force an individual to foster "an ideological point of view he finds unacceptable."166 It only required disclosure of nonmisleading, truthful commercial information. No freedom of conscience is implicated. The dairy manufacturers objected to the statute because they feared that disclosure would result in a loss of sales. This fear merely validates the notion that the commercial information is important to consumer decisionmaking.

The commercial speaker's interest in refraining from speech involves no "crisis of conscience" that justifies First Amendment scrutiny. In the recent case of Glickman v. Wileman Brothers & Elliot, Inc.,167 the Supreme Court indicated that compelled speech regulations that do not infringe upon a "crisis of conscience" should not be afforded First Amendment protection.168 In reviewing a challenge to governmentmandated financial support of generic advertising, the Court could find nothing "comparable to those [cases] in which an objection rested on political or ideological disagreement with the content of the message."169 Because no freedom of conscience was violated, the Court refused to find that the First Amendment had been implicated. The Court's analysis of mandated financial support strengthens the argument that there is no right not to speak in the commercial context because commercial speech, by definition, does not invoke a "crisis of conscience."

Professor Barendt saw the commercial-noncommercial distinction within the right not to speak as one "between the communication of opinions and the disclosure of factual information."170 He explained: The right to transmit ideas and views is primarily that of the speaker; the justification for its protection is to some extent that the right [not to speak] is necessary to ensure the development of his individual personality. We have seen that in contrast it is the recipient, and also the general public, who are the principal beneficiaries of the freedom to communicate information. It follows that a right not to speak can properly only be claimed for ideas and opinions . . . . A right not to divulge information would often conflict with the public's more weighty interest in the disclosure of the information, and could therefore only relatively rarely be successfully asserted under a free speech provision. 171

The Supreme Court has recognized that "not all speech is of equal First Amendment importance."172 A speaker's right not to disclose ideas and opinions is of higher constitutional value than a speaker's right not to disclose factual information that the public desires. Furthermore, because it is the commercial speaker's aversion to profit loss-and not a "crisis of conscience"-that motivates the speaker's desire to withhold information from the public, the courts should not recognize a commercial right not to speak. Arguably, the public's right to access commercial information is a "more weighty" interest than the commercial speaker's right not to disclose it; therefore, commercial disclosure requirements should not be subjected to First Amendment scrutiny.

2. Furthering the Interest in the Free Flow of Commercial Information.-Another reason for refusing to afford First Amendment protection to commercial disclosure requirements involves the public-policy concern of ensuring the free flow of commercial information-the original justification for the creation of the commercial speech doctrine.173 As Justice Thomas noted in his concurring opinion in 44 Liquormart, "[U]nless consumers are kept informed about the operations of the free market system, they cannot form `intelligent opinions as to how that system ought to be regulated or altered."174 The Court has consistently rejected paternalistic attempts by the government to keep consumers in the dark on the ground that such paternalistic assumptions do not support the suppression of truthful, nonmisleading commercial speech.175 The government's interest behind requiring commercial disclosures, on the other hand, is consistent with the Court's interest in maintaining the free flow of commercial information and rejecting paternalistic attempts to keep the public uninformed. For this reason, it is unnecessary to afford First Amendment protection to commercial disclosure requirements.

The Amestoy court's decision to protect the dairy manufacturer's right not to speak contradicts this interest in favor of disclosure by condoning an attempt to halt the free flow of commercial information to consumers. By deciding that Vermont consumers have no compelling need to know that dairy products have been derived from the use of rBST, the majority adopted the same paternalism so harshly condemned by the Supreme Court in numerous other cases.176 The Vermont consumers articulated their desire to be informed about the use of synthetic growth hormones in dairy products, and the legislature responded by enacting the labeling law. The court substituted its judgment for that of the consumers (as pronounced through the legislature) when it determined that the consumers' right to know would not justify the disclosure. In effect, the court ruled that the consumers' concerns about rBST were not of significant weight. It is "impermissibly 'paternalistic' for courts to challenge such disclosure requirements because `zeal to protect the public from too much information' [can]not withstand First Amendment scrutiny."177

The rationale behind affording First Amendment protection to commercial speech dictates that consumers have a right to information in order to keep the free flow of commercial information open. The majority's decision to extend First Amendment protection to the dairy manufacturer's right not to speak interferes with the consumer's right to commercial knowledge and ignores the fact that the commercial speech doctrine was created to protect the listener's right of access to commercial information.

3. Deferring to the Legislature's Knowledge of Consumer Concerns.Finally, it should be noted that commercial disclosure requirements are a legitimate subject of legislative regulation and that courts should defer to the legislature's right to pass laws that are beneficial to its citizens. The Court has long believed that the role of the judiciary is not to substitute its social and economic beliefs for that of the elected legislature.178 The Vermont legislature passed the commercial disclosure requirement to assist its citizens in their consumer decisions. The legislature found that consumers' concerns about the effects of rBST justified requiring dairy manufacturers to disclose their use of the hormone. By deeming the Vermont labeling law and other such commercial disclosure requirements violative of the First Amendment, the Amestoy court stripped the legislature of its right and need to protect consumer access to commercial information.

For these reasons, the courts should not subject commercial disclosure requirements to First Amendment scrutiny. Analyzing commercial disclosure requirements under the First Amendment not only fails to afford the legislature the deference it needs to adequately protect the consumers' right to informed decisionmaking; such an analysis also trivializes the political right not to speak by equating an interest to prevent profit loss with an interest to protect freedom of conscience. Because no other test has been officially approved by the Supreme Court, the next question becomes: What should be the appropriate review of commercial disclosure requirements?

B. An Alternative to First Amendment Review of Commercial Disclosure Requirements: The Revival of Substantive Due Process

Zauderer did not hold that commercial disclosure requirements do not implicate First Amendment protection at all. Rather, the Court recognized that "unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech."179 This statement, however, does not preclude an argument that commercial disclosure requirements should not be afforded First Amendment protection. In Zauderer, the Court emphasized that only those disclosure requirements that were "unjustified" or "unduly burdensome" would be violative of the Constitution. A test for such disclosure requirements need not rely on the First Amendment for justification to deem such requirements unconstitutional. Rather, a substantive due process analysis for unjustified or unduly burdensome disclosure requirements more than adequately protects the constitutional interests implicated by commercial disclosure requirements.180 Taking commercial disclosure requirements outside the protected speech context would not only protect the distinctions between noncommercial and commercial speech and the special status of disclosure requirements, but also provide the legislature the deference needed to adequately protect consumers by avoiding the higher scrutiny required by a First Amendment analysis.

The idea of subjecting commercial speech to a substantive due process analysis, rather than to First Amendment scrutiny, is not a new one. Historically, substantive due process review was the only review afforded commercial speech regulations. Prior to Virginia Pharmacy Board, "the dispositive clause" for review of what we now consider commercial speech "was the fifth amendment (substantive) due process clause-not the first amendment free speech clause. st 181 As Professor Van Alstyne recognized, "Commercial speech was thus principally a subset of economic due process, rather than a subset of (first amendment) free speech review."182

Reviving the substantive due process analysis for commercial disclosure requirements is a workable concept and one which would adequately recognize the unique status conferred on commercial disclosures. Scholars have expressed renewed interest in economic substantive due process,183 noting that it is "no longer toothless verbiage."184 Substantive due process is now a "powerful claim with a potentially expansive reach" to challenge arbitrary and unjustified government action,185 and it also has been applied in contexts such as public employee matters, land use, housing matters, licensing disputes, permit disputes, police misconduct, and corporal punishment.186 Under an economic substantive due process analysis, courts review the substance of the economic regulation, applying a means-ends test to determine if it offends the Due Process Clauses of the Constitution.187 The means-ends test for economic substantive due process is particularly suitable when reviewing commercial disclosure requirements because "substantive due process review of economic legislation is highly deferential; if the means selected have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of substantive due process are satisfied."188 Only blatantly unreasonable or clearly arbitrary government action may be declared unconstitutional under a substantive due process analysis.189 Reviewing commercial disclosure requirements under such a deferential standard serves dual purposes. First, it provides the government with an opportunity to successfully defend commercial disclosure requirements that are reasonably tailored to protect consumers' interests. Second, the test eliminates unjustified or unduly burdensome190 disclosure requirements that may offend the Constitution without invoking First Amendment scrutiny.

To apply a substantive due process analysis, courts must acknowledge that the real interests affected by commercial disclosure requirements are not speech, but economic interests. Professors Jackson and Jeffries make a similar assertion when challenging the Supreme Court's initial incorporation of commercial speech into the free speech doctrine. Jackson and Jeffries maintain that even in Virginia Pharmacy Board, the original commercial speech case, the Court recognized that the values affected by commercial speech regulation were those of economic liberty, including "the opportunity of the individual producer or consumer to maximize his own economic utility" and "the aggregate economic efficiency of a free market economy."191 In an effort to remove all commercial speech from First Amendment protection, Jackson and Jeffries argue that the proper constitutional framework with which to analyze possible restraints on such economic values (if there is to be one at all) must be the substantive Due Process Clause, not the First Amendment. Lamenting Virginia Pharmacy Board's expansion of protected speech to include commercial speech, Jackson and Jeffries make the following observation:

[O]ne would expect to find the constitutional safeguards of economic liberty to be housed within the flexible contours of due process of law. Instead, economic due process is resurrected, clothed in the illfitting garb of the first amendment . . . In short, the Supreme Court has reconstituted the values of Lochner v. New York as components of freedom of speech. 192

Jackson and Jeffries's assertion that economic values have been misconstrued as speech values certainly applies in the context of commercial disclosure requirements. For example, the real values implicated by the rBST labeling requirement in Amestoy are not speech rights but economic liberties, such as the opportunity of the milk producer "to maximize his own economic utility."193 As Judge Leval profoundly observed, "the true objective of the milk producers is concealment" because "there are consumers who, for various reasons, prefer to avoid rBST."194 Rather than mask this true objective in the rhetoric of the First Amendment, an economic due process argument should be invoked to address the true liberty at risk-the right of the milk producers to maximize their profits. The courts should not frame the issue as whether the labeling requirement violates the right not to speak-a right which this Note asserts does not exist in the commercial context-but as whether the labeling requirement and its infringement on the milk producers' liberty to maximize profits is "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare."195

This Note does not share Jackson and Jeffries's view that all commercial speech must be subjected to a substantive due process rather than free speech review. Rather, it urges only that, to maintain the workable commercial speech doctrine that had developed since Virginia Pharmacy Board, courts should acknowledge the unique status of commercial disclosure requirements by removing First Amendment protections from them. Limiting redress to substantive due process review ensures that legitimate commercial disclosure requirements will be upheld and bypasses the dangers of unnecessarily extending free speech protection.

VI. Conclusion

The Amestoy court's holding that the Vermont labeling law violated the First Amendment contravenes precedent and public policy. Affording First Amendment protection to commercial disclosure requirements ignores (1) the inherent distinctions between commercial and noncommercial speech, (2) the weak status of commercial disclosure requirements, and (3) the importance of keeping open the free flow of commercial information. If the Supreme Court legitimizes a commercial speaker's right to challenge such disclosure requirements, we will enter an era in which the public's right to an honest and open market is trumped by business interests' right to protect against potential loss of profit. The preferred position of the free speech doctrine will also be destroyed by trivializing its importance. In a "world in which anyone can talk on any subject[,] . . speech ... becomes the equivalent of noise, and free speech theory becomes unintelligible. "

Fundamentally, this Note asks that commercial disclosure requirements be treated distinctly from both political disclosure requirements and other commercial speech regulations. Courts must recognize that, unlike political disclosure requirements, commercial disclosures do not call for the public disclosure of one's individual conscience, but only for the dissemination of truthful, nonmisleading commercial information deemed valuable to the consumer. And unlike other commercial speech regulations, commercial disclosure requirements seek not to prohibit speech and keep the public in the dark, but to inform consumers for the maintenance of an open and honest market. These distinctions justify excluding commercial disclosure requirements from First Amendment protection.

1 I wish to thank Professors David Anderson and David Rabban for introducing this area of study to me and for their advice and many helpful suggestions in writing this Note. 1. 425 U.S. 748 (1976).

2. Id. at 790 (Rehnquist, J., dissenting) ("I do not believe that the First Amendment mandates the Court's `open door policy' toward such commercial advertising."); see also Bates v. State Bar, 433 U.S. 350, 405, 404-05 (1977 ) (Rehnquist, J., dissenting in part) (asserting that "the Court took the first step down the 'slippery slope' in Virginia Pharmacy Board"). 3. Bates, 433 U.S. at 405 (Rehnquist, J., dissenting in part). 4. Throughout this Note, the terms "political" and "noncommercial" are used interchangeably to describe "core" protected speech, which traditionally excluded commercial speech. The Framers originally intended that the First Amendment protect speech furthering democratic values-political or noncommercial speech. See G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America, 95 MICH. L. REv. 299, 341 (1996) (discussing how political speech has been accorded a "preferred position" because of its "particularly close association with the model of democratic politics"); infra notes 21-22 and accompanying text.

5. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 505, 506 (1981) ([W]e continue[ to observe the distinction between commercial and noncommercial speech, indicating that the former could be forbidden and regulated in situations where the latter could not be."); see also Virginia Pharmacy Bd., 425 U.S. at 771-72 n.24 ("In concluding that commercial speech enjoys First Amendment protection, we have not held that it is wholly undifferentiable from other forms. . . [A] different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired.").

6. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978). 7. See United States v. Edge Broad. Co., 509 U.S. 418, 426 (1993) (acknowledging that a "common-sense distinction" justifying the lesser protection afforded commercial speech is that commercial speech "occurs in an area traditionally subject to government regulation" (quoting Ohralik, 436 U.S. at 455-56)).

8. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 566 n.9 (1980) (acknowledging that complete suppression of commercial speech must be reviewed with "special care"). 9. See 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1507-OS (1996) (Stevens, Kennedy & Ginsburg, JJ.).

10. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 650 (1985). II. Id. at 651.

12. Id. at 651 n.14 (applying a less stringent analysis to a commercial disclosure requirement and acknowledging such requirements as "one of the acceptable less restrictive alternatives to actual suppression of speech" (citing Central Hudson, 447 U.S. at 565)).

13. See, e.g., Rubin v. Coors Brewing Co., 115 S. Ct. 1585, 1595 (1995) (Stevens, J., concurring) (asserting that "the borders of the commercial speech category are not nearly as clear as the Court has assumed"); Alex Kozinski & Stuart Banner, The Anti-History and Pre-History of Commercial Speech, 71 TEXAS L. REV. 747, 775 (1993) (questioning the soundness of the distinction between commercial and noncommercial speech); Lars Noah & Barbara A. Noah, Liberating Commercial Speech: Product Labeling Controls and the First Amendment, 47 FLA. L. REV. 63, 82 (1995) (arguing that the "Supreme Court has become increasingly critical of state and local restrictions on commercial speech"); Kathleen M. Sullivan, Cheap Spirits, Cigarettes, and Free Speech: The Implications of 44 Liquormart, 1996 SUP. CT. REV. 123, 160 (noting that a plurality of the Court is "willing to move commercial speech somewhat closer to the core of the First Amendment" and finding that such a move would not "render consumer protection agencies powerless"); Michael W. Field, Note, On Tap, 44 Liquormart, Inc. v. Rhode Island: Last Call for the Commercial Speech Doctrine, 2 ROGER WILLIAMS U. L. REV. 57, 89 (1996) ("No rational reason exists to distinguish truthful and nonmisleading commercial speech from other fully protected speech."). But see R. GEORGE WRIGHT, SELLING WORDS: FREE SPEECH IN A COMMERCIAL CULTURE 17 (1997) (acknowledging that "[c]urrently, an odd coalition of social and ideological forces favors the rigorous constitutional protection of commercial speech," but arguing against such protection).

14. See, e.g., Kozinski & Banner, supra note 13, at 756 ("The First Amendment makes no distinction among types of speech; it speaks only of `speech,' which suggests that the burdens of explaining a distinction between different kinds of speech should fall on the proponent of the distinction."); Field, supra note 13, at 62 & n.30 (demonstrating that colonial America lacked such distinctions by pointing out that Benjamin Franklin's argument for freedom of the press championed the printer's right to publish the opinions of others in the form of commercial speech). These commentators are correct in one respect. Facially, the First Amendment does not distinguish between commercial and political speech. It states simply that "Congress shall make no law . . . abridging the freedom of speech . . . ." U.S. CONST. amend. I. However, as this Note will explain, the Framers' definition of "speech" differs from the Court's current interpretation in that the Framers' definition did not include commercial advertising. There was no reason for the Framers to distinguish between what we now call "commercial" and "commercial" and "noncommercial" speech because the former was not viewed as "speech." See infra notes 20-23 and accompanying text.

15. See, e.g., Kozinski & Banner, supra note 13, at 750-51 (arguing that the history of the development of categorically "commercial" speech does not justify the distinction).

16. 316 U.S. 52 (1942). In Valentine, the Court refused to deem that a New York law prohibiting the distribution of commercial handbills violated the First Amendment on the ground that the First Amendment protects political speech alone. See id.; see also Field, supra note 13, at 63 (discussing Valentine).

17. 116 S. Ct. 1495 (1996). 18. Id. at 1518 (Thomas, J., concurring).

19. WILLIAM W. VAN ALSTYNE, FIRST AMENDMENT: CASES AND MATERIALS 683 (2d ed. 1995). 20. See supra note 1 and accompanying text.

21. See, e.g., Kovacs v. Cooper, 336 U.S. 77, 88 (1949) (acknowledging "the preferred position of freedom of speech in a society that cherishes liberty for all"); White, supra note 4, at 341 (noting how "the preferred position cases sought both to link free speech with the idea of America as a democratic society and to disengage protection for economic liberties from that idea"); see also supra note 4.

22. ERIC BARENDT, FREEDOM OF SPEECH 147, 146-52 (1985); see also New York Times Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J., concurring) ("In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy.").

23. See VAN ALSTYNE, supra note 19, at 683 (asserting that the Fifth Amendment provided the dispositive framework for analyzing commercial speech); see also infra subpart V( B). 24. BARENDT, supra note 22, at 147 (discussing how political speech is "conducive, rather than inimical, to the operation of a constitutional democracy" and acknowledging that the "same is not so

obviously true of . . . commercial advertising"); Thomas H. Jackson & John Calvin Jeffries, Jr., Commercial Speech: Economic Due Process and the First Amendment, 65 VA. L. REv. 1, 15 (1979) (arguing that commercial speech "omits, by definition, any expression essential to self-government"); Sullivan, supra note 13, at 130-33 (analyzing the view that commercial speech fails to inform "political deliberation" or "public interest in government"); see also infra notes 75-86 and accompanying text.

25. See White, supra note 4, at 309 (discussing the "perceived truth that unregulated economic activity actually infringed on the freedom of a significant number of actors in the economic marketplace"). 26. See id.

27. VAN ALSTYNE, supra note 19, at 683.

28. White, supra note 4, at 381-82 (summarizing the justification for Cass Sunstein's argument that a distinction between political and nonpolitical speech is essential to First Amendment analysis (citing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 14 (1993))). 29. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1517-18 (1996) (Thomas, J., concurring) (arguing against value distinctions between commercial and noncommercial speech); Rubin v. Coors Brewing Co., 115 S. Ct. 1585, 1595 (1995) (Stevens, J., concurring) (questioning the workability of a distinct commercial speech category); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 431, 436 (1993) (Blackmun, J., concurring) (arguing that "there is no reason to treat truthful commercial speech as a class that is less 'valuable' than noncommercial speech as a class that is less `valuable' than noncommercial speech" and that

"truthful, noncoercive commercial speech concerning lawful activities is entitled to full First Amendment protection"); Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 350 (1986) (Brennan. J., dissenting) ("I see no reason why commercial speech should be afforded less protection than other types of speech where . the government seeks to suppress commercial speech in order to deprive consumers of accurate information concerning lawful activity.").

Courts have also failed to acknowledge the differences in levels of protection afforded to the various types of commercial speech. By subjecting all types of commercial speech to uniform scrutiny, we take a step closer to destroying all differences in the protected speech doctrine. See, e.g., International Dairy Foods Ass'n v. Amestoy, 92 F.3d 67, 72-74 (2d Cir. 1996) (subjecting a state disclosure-of-information requirement-traditionally afforded the least rigorous constitutional protection of all types of commercial speech-to the same constitutional standard as complete bans on speech-the most protected type of commercial speech); Wileman Bros. & Elliott, Inc. v. Espy, 58 F.3d 1367, 1377-78 (9th Cir. 1995) (subjecting marketing orders issued under the Agricultural Marketing Agreement Act of 1937, which compel speech by requiring produce farmers to financially support a generic advertising program, to the commercial speech test articulated in Central Hudson-the same test that is used for complete bans on commercial speech), rev'd sub nom. Glickman v. Wileman Bros. & Elliot, Inc., 117 S. Ct. 2130 (1997).

This Note focuses on commercial disclosure requirements, which are a type of compelled speech. However, unlike the type of compelled speech in Glickman (mandated financial support), disclosure requirements in the commercial sphere have been explicitly recognized as requiring little, if any, First Amendment protection for two reasons: first, commercial disclosure requirements play a vital role in disseminating essential commercial information to consumers; and second, the right of the commercial speaker not to disclose such information has been deemed a "minimal" First Amendment interest. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985). In mandated financial support cases, the Supreme Court has explicitly recognized a "First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one's `freedom of belief.'" Glickman, 117 S. Ct. at 2139 (citing Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235 (1977 )). By definition, commercial disclosure requirements cannot conflict with a "freedom of belief" because they implicate no "crisis of conscience." Zauderer, 471 U.S. at 651 (finding that commercial disclosure requirements attempt "only to prescribe what shall be orthodox in commercial advertising," not what is orthodox in matters of opinion).

Despite the fact that mandated financial support differs from commercial disclosure requirements, the recent reversal of Glickman by the Supreme Court is of particular significance to this Note. In Glickman, the Supreme Court refused to find that the government's mandate that produce farmers provide financial support for generic advertising implicated a speech interest. As such, the regulation was not subjected to First Amendment scrutiny. See Glickman, 117 S. Ct. at 2140-41. The decision suggests that the Supreme Court may be willing to recognize that not all commercial speech deserves First Amendment protection. This Note argues that the Court should find that commercial disclosure requirements ought not be subjected to First Amendment scrutiny either. 30. White, supra note 4, at 379-80. 31. 92 F.3d 67 (2d Cir. 1996).

32. Id. at 74 (stating that "consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement").

33. No other federal appellate court has ever invalidated a commercial disclosure requirement. See, e.g., Zauderer, 471 U.S. at 651, 651-52 (approving a disclosure requirement that attorney advertisements include the client's liability for costs in contingency fee cases, and holding that, under the proper First Amendment commercial speech test, "an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers"); National Comm'n on Egg Nutrition v. FTC, 570 F.2d 157, 164 (7th Cir. 1977 ) (electing to modify rather than invalidate the FTC's order that future advertising concerning eggs disclose the risk of heart disease).

The Amestoy holding makes the Second Circuit the highest court explicitly to condone the practice of deeming commercial disclosure requirements unconstitutional under First Amendment scrutiny. Prior to this decision, the only courts expressly to invalidate disclosure requirements in the commercial context were district courts. See, e.g., Schwartz v. Welch, 890 F. Supp. 565 (S.D. Miss. 1995) (invalidating certain disclosure requirements when the defendant failed to meet the burden of justification); Texans Against Censorship, Inc. v. State Bar, 888 F. Supp. 1328, 1357-59 (E.D. Tex. 1995) (analyzing many commercial disclosure requirements in the context of attorney advertising and approving all but one that was argued to be a complete ban on speech rather than a commercial disclosure requirement-a determination the court did not reach when finding the regulation to be unconstitutionally overbroad), aff'd, 100 F.3d 953 (5th Cir. 1996) (unpublished table decision). The Fifth Circuit's unpublished table decision implicitly approved the judgment invalidating the regulation, although the district court never determined whether the regulation was a commercial disclosure requirement or a ban on speech. Without a published opinion from the Fifth Circuit, the Second Circuit stands alone as the sole federal appellate court whose explicit approval of a commercial disclosure requirement's invalidation has precedential authority. Therefore, Amestoy offers the first and, at present, only opportunity to examine a federal circuit court's rationale for overturning a commercial disclosure requirement on First Amendment grounds.

It is significant that the Second Circuit followed the misguided trend established in the district courts because it creates a precedent that may be adopted by other circuits. Such a fate would further undermine the integrity of the free speech doctrine by blurring the distinctions between commercial and political speech.

34. The Amestoy court's failure to recognize these tenets of modem commercial speech doctrine evidences its failure to follow precedent established by the Supreme Court in Zauderer. See Zauderer, 471 U.S. at 651 (finding that disclosure requirements are the least deserving of First Amendment protection in the commercial context, and distinguishing the political right not to speak from the alleged right in the commercial context).

35. See Zauderer, 471 U.S. at 651 (stating that the "constitutionally protected interest in not providing any particular factual information in his advertising is minimal") (emphasis in original); infra notes 13541 and accompanying text. 36. See infra section V(A)(1).

37. See 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1507 (1996) (Stevens, Kennedy & Ginsburg, JJ.) (recognizing that the consistency between the governmental interest in regulating commercial speech and the First Amendment justifies a "less than strict review"); Amestoy, 92 F.3d at 80 (Leval, J., dissenting) (noting that Vermont's labeling law is consistent with the "primary function of the First Amendment in its application to commercial speech"-"to advance truthful disclosure"); see also infra section V(A)(2). 38. See infra section V(A)(3).

39. See International Dairy Foods Ass'n v. Amestoy, 898 F. Supp. 246 (D. Vt. 1995), rev'd, 92 F.3d 67 (2d Cir. 1996).

40. Id. at 247 (quoting VT. STAT. ANN. tit. 6, 2754 (Supp. 1996)). 41. Amestoy, 92 F.3d at 70 (citing VT. STAT. ANN. tit. 6, 2754 (Supp. 1996)).

42. Amestoy, 898 F. Supp. at 254. 43. See Amestoy, 92 F.3d at 74. 44. Id. at 71. 45. Id. at 72.

46. 447 U.S. 557 (1980). In Central Hudson, the Supreme Court reviewed a New York regulation which prohibited promotional advertising by an electrical utility. The Court developed the four-part analysis in the context of recognizing the dangers of "blanket ban[s] on commercial speech" which work to "screen from public view the underlying governmental policy," id. at 566 n.9, and the importance of furthering "the societal interest in the fullest possible dissemination of information." Id. at 561-62. The Court determined that the ban on promotional advertising failed to meet the four-part test. See id. at 572.

47. See Amestoy, 92 F.3d at 72 (citing Central Hudson, 447 U.S. at 566). 48. See Central Hudson, 447 U.S. at 566 (noting that the first two elements are threshold requirements that must be satisfied prior to addressing the final two elements).

49. The restriction in Central Hudson involved a prohibition from promotional advertising. See id. at 566 n.9 ("We review with special care regulations that entirely suppress commercial speech ...."); see also infra notes 125-30 and accompanying text (explaining that the Central Hudson test was designed to counter the dangers attendant to complete bans on commercial speech).

50. Textual references to the "Amestoy court" apply only to the Second Circuit panel that decided the case.

51. See Amestoy, 92 F.3d at 72-73 (applying the Central Hudson test to Vermont's labeling law); see also Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985) (acknowledging that disclosure requirements in the commercial context are entitled to a substandard protection). 52. See Amestoy, 92 F.3d at 72.

53. Id. (quoting International Dairy Foods Ass'n v. Amestoy, 898 F. Supp. 246, 249 (D. Vt. 1995), rev'd, 92 F.3d 67 (2d Cir. 1996)). Vermont had conducted a survey showing that its consumers have a

high awareness of issues surrounding the use of rBST and are in favor of the type of labeling required by the Vermont Labeling Statute. . . . [A] majority of Vermonters do not want to purchase milk products derived from rBST-treated cows. Their reasons for not wanting to purchase such products include: (1) They consider the use of a geneticallyengineered hormone in the production unnatural; (2) they believe that use of the hormone will result in increased milk production and lower milk prices, thereby hurting small dairy farmers; (3) they believe that use of rBST is harmful to cows and potentially harmful to humans; and (4) they feel that there is a lack of knowledge regarding the long-term effects of rBST.

Amestoy, 898 F. Supp. at 250. 54. Amestoy, 92 F.3d at 74 (citation omitted). 55. Id. at 73 (quoting Amestoy, 898 F. Supp. at 248).

56. See id. The court's decision to invalidate the labeling law requirement is an unusual one. As noted by Noah & Noah, supra note 13, at 105: "[B]ecause mandatory warnings are limited disclosure requirements rather than prophylactic prohibitions on truthful labeling, the government's power to demand warnings generally is accepted as legitimate." 57. Amestoy, 92 F.3d at 74 ( Leval, J., dissenting).

58. Id. at 76 ( Leval, J., dissenting). Leval outlined these concerns as "worries about possible adverse health effects from consumption of rBST," "health risks to cows," "the economic impact of increased milk production, caused by injection of rBST, upon small dairy farmers," and "public philosophical objection to biotechnological mutation. Id. at 78 ( Leval, J., dissenting). 59. Id. at 76 ( Leval, J., dissenting) (emphasis in original). 60. See id. at 77 ( Leval, J., dissenting). 61. Id. at 80 ( Leval, J., dissenting). 62. Id. ( Leval, J., dissenting).

63. In Virginia Pharmacy Board, the Court justified its decision to protect commercial speech on the ground that "the free flow of commercial information is indispensable." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976). This Note argues that because commercial disclosure requirements issued by the legislature seek to serve this same purpose of ensuring the free flow of commercial information, there is no need to subject them to First Amendment scrutiny. Therefore, there is no need to apply the Central Hudson test. See discussion infra section V(B)(2); see also supra notes 137-45 and accompanying text (discussing the special status afforded commercial disclosure requirements).

64. 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1507 (1996) (Stevens, Kennedy & Ginsburg, JJ.).

65. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 652 n.14 (1985) ("[T]he First Amendment interests implicated by disclosure requirements are substantially weaker than those at stake when speech is actually suppressed . . . ."); Texans Against Censorship, Inc. v. State Bar, 888 F. Supp. 1328, 1347 (E.D. Tex. 1995) ("[T]he Supreme Court has indicated more tolerance for regulations that impose less restrictive regulations on speech, such as disclosure requirements, than those imposing total prohibitions on speech."), aff'd, 100 F.3d 953 (5th Cir. 1996) (unpublished table decision).

66. For an example of what constitutes strict scrutiny, see Burson v. Freeman, 504 U.S. 191, 198 (1992) ("[A] facially content-based restriction on political speech in a public forum . . . must be subjected to exacting scrutiny: The State must show that the `regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.'" (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983))). 67. White, supra note 4, at 302.

68. Valentine v. Chrestensen, 316 U.S. 52, 55 (1942). 69. White, supra note 4, at 309. 70. Id.

71. Id. at 327.

72. See id. at 329-30, 327-30 (discussing the origins of the bifurcated review project). 73. Id. at 331 (emphasis in original).

74. See id. at 327-33 (analyzing the development of free speech as a "preferred" constitutional doctrine and its association with the ideals of democracy); see also Beuhamais v. Illinois, 343 U.S. 250, 285 (1952) (Douglas, J., dissenting) ("Speech has . . . a preferred position as contrasted to some other civil rights." (citation omitted)).

75. See White, supra note 4, at 308-09 (discussing how courts paid deference to economic regulation, but sanitized restrictions on speech and noneconomic liberties); see also BARENDT, supra note 22, at 55 ("The argument from democracy implies that some types of information are more worthy of constitutional protection than others; on this basis, therefore, the case for excluding commercial speech is quite strong.").

76. BARENDT, supra note 22, at 147.

77. See VAN ALSTINE, supra note 19, at 683 (stating that "commercial speech was . . . treated mostly as `commerce,' and little (if at all) as `speech"'").

78. See Kozinski & Banner, supra note 13, at 757 ("[N]o judge thought of the thing as commercial speech-they called it 'advertising' . . . or `soliciting and canvassing,' or some such term that denoted a business activity rather than a form of expression." (emphasis in original) (citations omitted)). 79. White, supra note 4, at 332.

80. See WRIGHT, supra note 13, at 17 (asserting that reasonable regulations of commercial speech "contribute in broader ways to the citizens' overall freedom, autonomy, and well-being").

81. White, supra note 4, at 332 ("The free speech ideal did not protect rights associated with material possessions but instead shielded rights embodied in the ideal of democracy."). 82. Jackson & Jeffries, supra note 24, at 5. 83. Id. at 5-6. 84. Id. at 10.

85. Id. at 12 (quoting Thomas 1. Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877, 879 (1963)).

86. White, supra note 4, at 309.

87. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976) (quoting Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973); Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); Roth v. United States, 354 U.S. 476 (1957) (quoting I JOURNALS OF THE CONTINENTAL CONGRESS 108 (Johnson Reprinting Corp. 1968) (1774))).

88. Virginia Pharmacy Bd., 425 U.S. at 762, 770. 89. Id. at 764. 90. Id. at 765. 91. Id. at 770.

92. National Comm'n on Egg Nutrition v. FTC, 570 F.2d 157, 162 (7th Cir. 1977 ). 93. See Jackson & Jeffries, supra note 24, at 5 (discussing how the [F]irst [A]mendment guarantee of freedom of speech and press protects only certain identifiable values," including "the opportunity for individual self-fulfillment through free expression").

94. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 433-34 (1993) ( Blackmun, J., concurring) (emphasis omitted); see also Noah & Noah, supra note 13, at 76 ("Commercial speech is not protected under the First Amendment solely or even primarily for the benefit of the speaker but rather serves the interests of listeners.").

95. See Bates v. State Bar, 433 U.S. 350, 364 (1977) (acknowledging the importance of the listener's interest in the commercial speech doctrine). 96. Discovery Network, 507 U.S. at 422 (quoting Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 561 (1980)). 97. Id.

98. Compare Discovery Network, 507 U.S. at 422-24 (recognizing that the Court has afforded lesser protection to commercial speech), with Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983) ("With respect to noncommercial speech, this Court has sustained content-based restrictions only in the most extraordinary circumstances." (citing Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 538-39 (1980); Geoffrey R. Stone, Restrictions of Speech Because of Its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. CHI. L. REV. 81, 82 (1978))). See generally Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U. S. 748, 772 n.24 (1976) ("[A] different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired.").

99. See 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1505 (1996) (Stevens, Kennedy, Souter & Ginsburg, JJ.) ("[O]ur early cases recognized that the State may regulate some types of commercial advertising more freely than other forms of protected speech."); see also Bolger, 463 U.S. at 64-65 ("[T]he Constitution accords less protection to commercial speech than to other constitutionally safeguarded forms of expression."); In re R.M.J., 455 U.S. 191, 200 n.12 (1982) ("When dealing with restrictions on commercial speech we frame our decisions narrowly, 'allowing modes of regulation [of commercial speech] that might be impermissible in the realm of noncommercial expression."' (alterations in original) (quoting Friedman v. Rogers, 440 U.S. 1, 11 (1979))).

100. See supra notes 13-18 and accompanying text; see also Field, supra note 13, at 84-89 (arguing that the commonsense differences between commercial and noncommercial speech are illusory).

101. Bolger, 463 U.S. at 64 (quoting Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56 (1978)).

102. See, e.g., Rubin v. Coors Brewing Co., 115 S. Ct. 1585, 1595 (1995) (Stevens, J., concurring) (discussing the "artificiality of a rigid commercial/noncommercial distinction"); Kozinski & Banner, supra note 13, at 754-55 (questioning the "commonsense" rationale for distinguishing commercial speech and attributing the distinction to history rather than to logic); see also Alex Kozinski & Stuart Banner, Who's Afraid of Commercial Speech?, 76 VA. L. REV. 627, 634-38 (1990) (challenging the rationale behind the distinction).

The dispute over the justification for affording noncommercial and commercial speech different degrees of First Amendment protection has led many to the conclusion that commercial speech, like noncommercial speech, should be subjected to strict scrutiny. See Field, supra note 13, at 89 ("No rational reason exists to distinguish truthful and nonmisleading commercial speech from other fully protected speech."); Sullivan, supra note 13, at 160 (suggesting that a plurality of Supreme Court justices is now "willing to move commercial speech somewhat closer to the core of the First Amendment, applying strict scrutiny to paternalistic interventions between speaker and listener for the listener's own good").

103. Virginia Pharmacy Bd., 425 U.S. at 787-88 (Rehnquist, J., dissenting) (quoting Breard v. City of Alexandria, 341 U.S. 622, 650 n.* (1951) (Black, J., dissenting) (citations omitted)); see also Jackson & Jeffries, supra note 24, at 22-23 (arguing that "the problem of differentiating between commercial and other communication has not in practice proved to be a serious one" (quoting THOMAS I. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT 105 n.46 (1966))). 104. WRIGHT, supra note 13, at 14.

105. Texans Against Censorship, Inc. v. State Bar, 888 F. Supp. 1328, 1345 (E.D. Tex. 1995) (quoting Riley v. National Fed'n of the Blind, Inc., 487 U.S. 781, 796 (1988)), aff'd, 100 F.3d 953 (5th Cir. 1996) (unpublished table decision). But note that "advertising which 'links a product to a current public debate' is not thereby entitled to the constitutional protection afforded noncommercial speech." Board of Trustees v. Fox, 492 U.S. 469, 475 (1989) (quoting Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563 n.5 (1980)).

106. See Bolger, 463 U.S. at 64 (quoting Ohralik, 436 U.S. at 456); see also 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1506 (1996) (Stevens, Kennedy, Souter& Ginsburg, JJ.) ("[T]he State's power to regulate commercial transactions justifies its concomitant power to regulate commercial speech that is `linked inextricably' to those transactions." (quoting Friedman v. Rogers, 440 U.S. 1, 10 (1979))).

107. See 44 Liquormart, 116 S. Ct. at 1508 (Stevens, Kennedy & Ginsburg, JJ.) ("It is the State's interest in protecting consumers from `commercial harms' that provides `the typical reason why commercial speech can be subject to greater governmental regulation than noncommercial speech.'" (quoting City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 426 (1993))). 108. White, supra note 4, at 332 ("The free speech ideal did not protect rights associated with material possessions but instead shielded rights embodied in the ideal of democracy."). 109. Bolger, 463 U.S. at 65 (citations omitted).

110. 44 Liquormart, 116 S. Ct. at 1506 (Stevens, Kennedy, Souter& Ginsburg, JJ.); see Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 772 n.24 (1976) ("[ T]he greater objectivity and hardiness of commercial speech[] may make it less necessary to tolerate inaccurate statements for fear of silencing the speaker."). 111. Virginia Pharmacy Bd., 425 U.S. at 772 n.24. 112. BARENDT, supra note 22, at 56.

113. 44 Liquormart, 116 S. Ct. at 1506 (Stevens, Kennedy, Souter & Ginsburg, JJ.); see also Kozinski & Banner, supra note 13, at 748 ("Commercial advertising is motivated by money. Much advertising is nonsense. Much advertising is about conveying product images, or molding consumers' own self-images, rather than about conveying information about products themselves.").

114. BARENDT, supra note 22, at 56-57. 115. See supra note 7 and accompanying text. 116. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978). 117. See Schwartz v. Welch, 890 F. Supp. 565, 571 (S.D. Miss. 1995) (noting that defendants failed to call to the court's attention any cases in which the Central Hudson test was not applied); Field,

supra note 13, at 58-59 ("The Central Hudson test has subsequently been used to determine the constitutionality of all commercial speech restrictions.,). But see Glickman v. Wileman Bros. & Elliot, Inc., 117 S. Ct. 2130, 2138 (1997) (refusing to subject compelled funding of generic advertising to the Central Hudson test after concluding that (1) the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience," (2) "they do not compel anyone to engage in any actual or symbolic speech," and (3) "they do not compel anyone to endorse or to finance any political or ideological views"); infra note 123.

118. See Sullivan, supra note 13, at 124 ("In recent terms . . . the Court has granted repeated victories to advertisers in First Amendment challenges."). 119. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 564 (1980). Specifically, the Court held that the government is entitled to regulate commercial speech that is misleading or related to unlawful activity, but its power is more circumscribed if the speech is neither. 120. Id.; see also supra note 49 and accompanying text (describing the test as a four-part inquiry). 121. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1518-20 (1996) (Thomas, J., concurring) (attacking Central Hudson's protection of consumer knowledge as inadequate and stating that all attempts to dissuade legal choices by citizens by keeping them ignorant are impermissible," and advocating instead the standard announced in Virginia Pharmacy Board); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 438 (1993) (Blackmun, J., concurring) ("I hope the Court ultimately will come to abandon Central Hudson's analysis entirely in favor of one that affords full protection for truthful, noncoercive commercial speech about lawful activities."); Noah & Noah, supra note 13, at 78 ("In the years following the Central Hudson decision, it became apparent that the fourprong test was ambiguous and difficult to apply."); David O. Stewart, Change Brewing in Commercial Speech, A.B.A. J., July 1996, at 44 (noting the Supreme Court's present discomfort with the Central Hudson analysis); Field, supra note 13, at 59 ("[ T]he Central Hudson test has proven to be nothing more than an inconsistently applied ad hoc balancing test.").

122. See David A. Anderson, Torts, Speech, and Contracts, 75 TEXAs L. REV. 1499, 1514 (1997) ("Most of the commercial-speech regulations that have reached the Supreme Court have been unable to survive this analysis."); Field, supra note 13, at 87-89 (surveying the Supreme Court's treatment of commercial speech regulation cases and finding that most regulations were deemed unconstitutional under the Central Hudson analysis).

123. See Field, supra note 13, at 58-59; supra note 120. The one commercial speech case that did not undergo a Central Hudson analysis was Glickman v. Wileman Brothers & Elliot, Inc., 117 S. Ct. 2130 (1997), a mandated financial contribution case. In Glickman, produce handlers challenged a marketing order pursuant to the Agricultural Marketing Agreement Act of 1937 which required them to pay for generic advertising of their products as a violation of free speech. The Supreme Court framed the issue as "whether being compelled to fund this advertising raises a First Amendment issue for us to resolve, or rather is simply a question of economic policy for Congress and the Executive to resolve." Glickman, 117 S. Ct. at 2138. Although the Court recognized that the First Amendment prohibits "being compelled to contribute to an organization whose expressive activities conflict with one's `freedom of belief,'" it refused to apply the four-prong Central Hudson test to the marketing order. Id. at 2140 (quoting Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235 (1977)). Because "requiring respondents to pay the assessments cannot be said to engender any crisis of conscience," no First Amendment interest was implicated, rendering the Central Hudson test inapplicable. Id. at 2139.

124. The five cases that survived Central Hudson scrutiny are Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995); United States v. Edge Broadcasting Co., 509 U.S. 418 (1993); San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522 (1987 ); Posadas de Puerto Rico Associates v. Tourism Co., 478 U.S. 328 (1986); and Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982). Village of Hoffman Estates differs from the other commercial speech cases that survived Central Hudson in that the full four-part inquiry was not applied to it, In Village of Hoffman Estates, the Court determined that the commercial speech regulation related to unlawful activity and, therefore, did not undergo the additional three prongs of Central Hudson to determine constitutionality. Village of Hoffman Estates, 455 U.S. at 496.

Both Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), and Board of Trustees v. Fox, 492 U.S. 469 (1989), have been excluded from this survey. Although the Metromedia Court determined that the challenged regulation met the requirements of Central Hudson insofar as it related to commercial speech, Metromedia, 453 U.S. at 512, it found the statute to be facially unconstitutional for reaching "too far into the realm of [noncommercial] speech." Id. at 521. In Fox, the Court analyzed the Central Hudson test but ultimately decided that it must remand the case to determine if noncommercial speech interests were implicated in an overbreadth challenge. Fox, 492 U.S. at 486. Therefore, Fox is inconclusive as to whether the challenged regulation survives the Central Hudson test. In these cases, the discussions of the Central Hudson test were merely dicta. 125. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 571 (1980). 126. Id. at 566 n.9. The Court further stated that "in recent years this Court has not approved a blanket ban on commercial speech unless the expression itself was flawed in some way, either because it was deceptive or related to unlawful activity." Id.

127. See 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1515 (1996). 128. Id. at 1507 (Stevens, Kennedy, Souter & Ginsburg, JJ.) (quoting Central Hudson, 447 U.S. at 566 n.9).

129. Id. at 1507-08 (Stevens, Kennedy & Ginsburg, JJ.) (citations omitted). 130. See id. at 1510 (Stevens, Kennedy, Souter & Ginsburg, JJ.) ('[ T]he price advertising ban cannot survive the more stringent constitutional review that Central Hudson itself concluded was appropriate for the complete suppression of truthful, nonmisleading commercial speech."). 131. The Central Hudson test has been applied to nearly every commercial speech case. See Field, supra note 13, at 58-59 ("The Central Hudson test has subsequently been used to determine the constitutionality of all commercial speech restrictions."); supra note 117 and accompanying text. Only a few of these cases are complete-suppression cases, the type of case for which the test was designed. Most applications of the Central Hudson test have been to regulatory restrictions on commercial speech. See, e.g., In re R.M.J., 455 U.S. 191, 203 (1982) (applying the Central Hudson test to Missouri

ethical rules that regulated attorney advertising). Now that the Central Hudson test has been applied to commercial disclosure requirements, the original purpose for which the test was developed may well be forgotten.

132. 44 Liquormart, 116 S. Ct. at 1507 (Stevens, Kennedy & Ginsburg, JJ.). 133. Id.

134. Id. (emphasis added).

135. 471 U.S. 626 (1985). 136. Id. at 650-51, 651 n.14.

137. Id. at 650. Note that the Zauderer Court did not find a potential violation of First Amendment rights in requiring an individual to provide the additional information. The Amestoy majority, on the other hand, held that the Vermont statute "indisputably requires [individuals] to speak when they would rather not" and this 'contravene[s] core First Amendment values.'" International Dairy Foods Ass'n v. Amestoy, 92 F.3d 67, 72 (2d Cir. 1996) (second alteration in original) (quoting Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir. 1991)). Clearly, the Amestoy Court ignored the precedent established by the Zauderer Court. 138. See Zauderer, 471 U.S. at 652 n.14.

139. Id.; see also In re R.M.J., 455 U.S. 191, 201 (1982) ("[A] warning or disclaimer might be appropriately required . . . in order to dissipate the possibility of consumer confusion or deception." (citing Bates v. State Bar, 433 U.S. 350, 384 (1977 ))); Bates, 433 U.S. at 384 ("We do not foreclose the possibility that some limited supplementation, by way of warning or disclaimer, might be required

. . . so as to assure that the consumer is not misled."); Texans Against Censorship, Inc. v. State Bar, 888 F. Supp. 1328, 1347 (E.D. Tex. 1995) ("[T]he Supreme Court has indicated more tolerance for regulations that impose less restrictive regulations on speech, such as disclosure requirements, than those imposing total prohibitions on speech."), ard, 100 F.3d 953 (5th Cir. 1996) (unpublished table decision).

140. Zauderer, 471 U.S. at 652 n.14. 141. Id.

142. When analyzing the constitutionality of the disclosure requirement, the Court acknowledged that "the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides." Id. at 651. Disclosure requirements by their very nature further this interest by ordering that commercial information be provided to the consumer.

143. Id. (emphasis in original) (citations omitted). 144. See Id. at 651 & n.14.

145. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 591 (1980) (Rehnquist, I., dissenting) ("The test adopted by the Court thus elevates the protection afforded commercial speech that falls within the scope of the First Amendment to a level that is virtually indistinguishable from that of noncommercial speech.").

146. See, e.g., Harry & Bryant Co. v. FTC, 726 F.2d 993, 1001 (4th Cir. 1984) (finding that the First Amendment does not prevent the FTC "from remedying deception by means of an affirmative disclosure requirement" because the First Amendment fails to protect misleading speech); National Comm'n on Egg Nutrition v. FTC, 570 F.2d 157, 164 (7th Cir. 1977 ) (choosing to modify rather than invalidate the challenged FTC disclosure requirement despite a finding that the requirement was overbroad).

147. See, e.g., Zauderer, 471 U.S. at 652 n. 14 ([A]ll our discussions of restraints on commercial speech have recommended disclosure requirements as one of the acceptable less restrictive alternatives to actual suppression of speech.").

148. See Federal Cigarette Labeling and Advertising Act 4, 15 U.S.C. 1333 (1994) (requiring cigarette packages to bear the Surgeon General's warnings about the health risks from smoking). 149. See Nutrition Labeling and Education Act of 1990 2(a), 21 U.S.C. 343(q)(1) (1994) (requiring food labels to provide consumers with the total number of calories derived from fat and the amount of fat in a single serving).

150. See Securities Exchange Act of 1934 14, IS U.S.C. 78n(c) (1994) (requiring the issuer of a proxy statement to file it with the Securities and Exchange Commission and to provide it to all security holders).

151. International Dairy Foods Ass'n v. Amestoy, 92 F.3d 67, 71 (2d Cir. 1996). 152. 319 U.S. 624 (1943). Barnette held that a school board's resolution requiring students to salute and pledge to the United States flag violates the First Amendment. See id. at 642.

153. 430 U.S. 705 (1977 ). The Wooley Court determined that New Hampshire's requirement that individuals display the state motto on their license plate violates the First Amendment. See id. at 717. 154. 418 U.S. 241 (1974). In Tornillo the Court found that a state's "compulsory access law" requiring newspapers to publish replies to editorials violated the First Amendment. See id. at 258. The Amestoy court did not expressly rely upon Tornillo. However, because it may be grouped with the political-right-not-to-speak cases relied upon by the Second Circuit, Tornillo will be included in this Note's discussion. The Amestoy court did refer expressly to Harper ctc Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985). Harper & Row, however, is not a strong example of a right-not-tospeak case. The Harper Court discussed this First Amendment right only insofar as it relates to the copyright laws and the right of first publication. See Harper & Row, 471 U.S. at 559-60.

155. See Amestoy, 92 F.3d at 72 (noting that the dairy manufacturer has a constitutional right not to speak).

156. See White, supra note 4, at 329-30.

157. See BARENDT, supra note 22, at 64 (noting that the right not to speak "rests on an underlying freedom of belief and conscience, which is seriously compromised by any requirement to enunciate opinions which are not in truth held by the individual"); see also Barnette, 319 U.S. at 642 (acknowledging that the govemment cannot compel its citizens to adopt another's opinion). 158. Barnette, 319 U.S. at 642. 159. Id. at 633. 160. Id. at 642.

161. Wooley v. Maynard, 430 U.S. 705, 707 (1977 ). 162. Id. at 715.

163. Miami Herald Publ'g Co. v. Tomillo, 418 U.S. 241, 243-45 (1974). 164. Id. at 258.

165. Barnette, 319 U.S. at 642. 166. Wooley, 430 U.S. at 715. 167. 117 S. Ct. 2130 (1997). 168. Id. at 2139. 169. Id. at 2140.

170. BARENDT, supra note 22, at 64.

171. Id. at 64-65 (emphases in original) (footnotes omitted).

172. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 (1985). 173. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 764 (1976) (Thomas, J., concurring) ("[S]ociety also may have a strong interest in the free flow of commercial information.").

174. 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1516 (1996) (Thomas, J., concurring) (quoting Virginia Pharmacy Bd., 425 U.S. at 765).

175. See 44 Liquormart, 116 S. Ct. at 1508 (Stevens, Kennedy & Ginsburg, JJ.) ("The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.").

176. See, e.g., id.; Bates v. State Bar, 433 U.S. 350, 374-75 (1977) (criticizing arguments that assume that "the public is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information").

177. SEC v. Wall St. Publ'g Inst., Inc., 851 F.2d 365, 374 (D.C. Cir. 1988) (quoting Meese v. Keene, 481 U.S. 465, 481 (1987) (quoting Virginia Pharmacy Bd., 425 U.S. at 748)). 178. See Virginia Pharmacy Bd., 425 U.S. at 784 (Rehnquist, J., dissenting) (quoting Ferguson v. Skrupa, 372 U.S. 726, 730 (1963)). See also Glickman v. Wileman Brothers & Elliot, Inc., 117 S. Ct. 2130 (1997), in which the Supreme Court recently refused to invalidate a mandated financial support requirement, recognizing that economic regulations deserve deference. The Court held that "[t]he mere fact that one or more producers `do not wish to foster' generic advertising of their product is not a sufficient reason for overriding the judgment of the majority of market participants, bureaucrats, and legislators who have concluded that such programs are beneficial." Id. at 2142.

179. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985). 180. In addition, the substantive due process doctrine is trying to make a comeback. Commentators are urging that it be "revitalized as the centerpiece of a new economics-focused activist jurisprudence." Michael J. Phillips, Another Look at Economic Substantive Due Process, 1987 WIs. L. REV. 265, 265; see also J. Michael McGuinness & Lisa A. McGuinness Parlagreco, The Reemergence of Substantive Due Process as a Constitutional Tort: Theory, Proof, and Damages, 24 NEW ENG. L. REv. 1129, 1130 (1990) (discussing the doctrine's "promising future"). Litigants have recently invoked the substantive due process doctrine to challenge arbitrary governmental action in many contexts. See, e.g., Patel v. Penman, 103 F.3d 868, 874-75 (9th Cir. 1996) (challenging the closing of a hotel for code violations under substantive due process review, rather than under either a procedural due process claim or under the California Constitution's restriction on public-use takings, both of which were dropped by the appellants), cert. denied, 117 S. Ct. 1845 (1997 ); New Port Largo, Inc. v. Monroe County, 95 F.3d 1084, 1091 (1I th Cir. 1996) (challenging a county rezoning decision under substantive due process), cert. denied, 117 S. Ct. 2514 (1997 ); Catlin v. Sobol, 93 F.3d 1112, 1118-19 (2d Cir. 1996) (challenging a New York residency statute under substantive due process); FM Properties Operating Co. v. City of Austin, 93 F.3d 167, 173-75 (5th Cir. 1996) (invoking substantive due process in a 1983 action to challenge the defendant-city's rejection of an application for a landdevelopment permit). In each of these cases, the challenged regulations were deemed constitutional

under substantive due process, indicating the doctrine's highly deferential standard. Such deference is appropriate in the context of a commercial disclosure requirement in order to protect consumer interests. See supra note 171 and accompanying text. 181. VAN ALSTYNE, supra note 19, at 683. 182. Id.

183. See, e.g., Phillips, supra note 180, at 266. 184. McGuinness & Parlagreco, supra note 180, at 1130. 185. Id.

186. See id. at 1134.

187. See Phillips, supra note 180, at 268-69 (explaining that a substantive due process analysis will consist of identifying a liberty or property interest that the government has infringed and balancing it against an asserted governmental interest through the use of a means-ends test). The means-ends test). The means-ends test of substantive due process is met if the government action "is rationally related to a legitimate government interest." See FM Properties Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996).

188. VAN ALSTYNE, supra note 19, at 683 n.4.

189. Government action is deemed arbitrary and unreasonable when it fails to demonstrate a relation to the health, welfare, safety, or morals of the public. See FM Properties, 93 F.3d at 174. 190. The Zauderer Court held that unjustified or unduly burdensome disclosure requirements may be unconstitutional. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985). A substantive due process analysis is particularly suited for weeding out such requirements. Action that is "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare" will be held unconstitutional under a substantive due process analysis. Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996), cert. denied, 117 S. Ct. 1845 (1997). 191. Jackson & Jeffries, supra note 24, at 25.

192. Id. at 30-31. 193. Id. at 25.

194. International Dairy Foods Ass'n v. Amestoy, 92 F.3d 67, 80 (2d Cir. 1996) ( Leval, J., dissenting).

195. See Patel, 103 F.3d at 874 (establishing the standard to assert a violation of substantive due process (citing Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926))).

196. White, supra note 4, at 391.

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