Government regulation of commercial enterprises takes many forms. Among the most familiar forms are requirements that commercial speakers convey particular government-approved commercial messages, presumably for the sake of some sufficient benefit to the persons thereby informed. This Article discusses the difficult problems generated by the case law of compelled commercial speech. Controversies and important paradoxes are examined herein, on the way to the surprising conclusion that in light of the ordinarily limited interests on both sides of the case, typical compelled commercial speech cases can be responsibly resolved, all else equal, by merely flipping a coin.
First, the Article briefly outlines the Supreme Court of the United States’s most important compelled commercial speech cases. These cases arise in the broader context of commercial speech regulation more generally. The leading Supreme Court case focusing distinctively on legally compelled commercial speech is that of Zauderer v. Office of Disciplinary Counsel. The compelled commercial speech cases, including Zauderer, have already generated conflicting scholarly reactions.
The Article then discusses a number of important problems latent in the Supreme Court case law, some of which have been identified, but conflictingly addressed by the lower federal courts. Most surprisingly, it turns out that contrary to nearly universal belief, we actually cannot say that the Zauderer compelled commercial speech test really is, overall, less protective of recognized commercial speech rights than is the broader Central Hudson test.
On the basis of the relevant case law and the available empirical evidence, the Article then considers uncertainties, complications, conflicts, and mixed results of compelled commercial speech regulation, in general, and more particularly regarding nutrition, diet, health, and disease.
The Article then concludes that all else equal, the empirical evidence, legal assumptions, doctrines, tests, and values, including the value of commercial free speech, as they are typically construed, suggest that typical compelled commercial speech cases could be as justifiably determined by randomly flipping a coin as by any more respectable adjudicative process. As it turns out, both the recognized commercial speech interests and the real magnitude of the government regulatory interest, as actually advanced in practice by the typical compelled commercial speech regulation, tend to be quite modest. There are, surprisingly, typically only limited legal interests on both sides of the case.
R. George Wright, The Compelled Commercial Speech Cases: Why Not Just Flip a Coin?, 71 Mercer L. Rev. 585 (2020). Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol71/iss2/5/