Three (Quick!) Lessons for Legislators about Commercial Speech

Proceed with caution when limiting or compelling commercial speech, the Washington Legal Foundation (WLF) warns.

“Government legislators and regulators should think long and hard before using any speech restraint or compelled disclosure to pursue their consumption preferences or policy goals.”  This is the conclusion of the new policy paper by the WLF.

In this easy-to-read two-page document, Megan L. Brown and Bert W. Rein provide three key lessons summarizing how the courts have interpreted commercial speech laws and regulations and what legislators should keep in mind when tackling commercial speech issues in the future:

Lesson One: Avoid Acting to Suppress Consumer Choice

Legislators frequently feel compelled to protect their constituents from lawfully available products. But the WLF makes clear that “no commercial-speech doctrine is better established than the principle that government should not dictate consumer choices through speech suppression.” Remember, consumers have the right to access truthful information, and producers have the right to publish such information to the public. The consumer, like your constituent, is in the best position to make an informed decision when she has all the information at her disposal.

Lesson Two: Do not Overuse a “Deceptive or Misleading” Rationale

Although the Supreme Court has made clear that deceptive or misleading commercial speech plays no beneficial role in the marketplace and may be banned, the WLF reminds legislators that governments do not have free rein in declaring commercial speech deceptive or misleading, especially when enacting necessarily generalized legislation or regulations.  In short, the law still very much depends on the judicial system to evaluate specific claims, and legislators need to recognize the importance of the judicial branch in evaluating commercial speech issues.

Lesson Three: Mandatory Disclosure Unrelated to Curing Deception Does Not Get a First Amendment Pass.

“Sellers forced to disseminate a negative message are not only involuntarily handing over some of their valuable advertising or branding space to the government, they are also prevented from shaping their own market communications.” The WLF reminds legislators that there is a thin line between mandating the disclosure of truthful information and highlighting such truthful information to make it more significant to the consumer than it may actually be. The authors use the example of a food product with a GMO-deprived ingredient. On its face, it is a fact a particular product may be made with a specific ingredient, but how much weight to give to that ingredient is for the consumer, not the government to decide. Remember, when policymakers mandate the disclosure of such an ingredient, the policymaker is also redefining its importance to the consumer.

Legislators must be mindful that regulating commercial speech has the potential to restrict sellers and possibly mislead consumers. Commercial speech is a very complex issue and impacts multiple other public policy areas. The regulation of commercial speech has a direct impact on the free-market economy and the right of producers and consumers to promote and access truthful information.

ALEC is here to help educate and inform legislators as they navigate these complicated areas of the law and public policy. This is why the Civil Justice Task Force and the Center to Protect Free Speech have joined forces to bring together an expert panel on commercial speech at ALEC’s annual meeting in Denver. The meeting will take place during the Civil Justice Task Force Meeting at 4:00 PM on Thursday, July 20, and the author of this informative piece will be joining us for the discussion.  Any ALEC member planning to attend the conference is welcome to join us.

If you can’t attend the annual meeting, or would like to learn more about commercial speech and other free speech topics, please consider joining ALEC’s Free Speech Working Group. You’ll gain a deeper understanding of free speech public policy issues and hear directly from legislators and leading policy experts on the “First Fridays” conference calls.

To register for the Free Speech Working Group click here.

To register for the next “First Fridays” conference call click here.