Regulating Commercial Speech
Overview of Supreme Court Precedent
Disclosure provisions that require commercial actors to convey specified information to consumers occupy an uneasy and shifting space in First Amendment jurisprudence. The First Amendment’s Free Speech Clause protects the right to speak as well as the right not to speak, and at least outside the context of commercial speech, courts generally disfavor any government action that compels speech. Indeed, the Supreme Court in 1943 described the First Amendment’s protection against compelled speech as a “fixed star in our constitutional constellation.” — West Virginia Board of Education v. Barnette. Accordingly, government actions mandating speech are generally subject to strict scrutiny…
