Compelled Commercial Speech and the First Amendment

Authors

Martin H. Redish, Northwestern University Pritzker School of Law

Abstract

For the most part, the First Amendment is viewed as a means of restricting government’s authority to suppress expression. Both speakers and listeners are assumed to benefit from speech, and, therefore, the more communication of opinion and information, the better it is for both society and the democratic system. However, for a variety of important reasons, the courts have extended First Amendment protection to limit government’s power to compel expression by private individuals and entities. The Court has wisely recognized that governmental compulsion to speak can often bring about many of the very same constitutional and democratic pathologies brought on by suppression.

Despite their overlapping similarities, suppression and compulsion of speech have by no means been viewed as identical for First Amendment purposes by the Court. On occasion, the Court has recognized that governmentally compelled speech may actually advance First Amendment interests more than undermine them.

Compelled speech gives rise to complications not present when the issue concerns the constitutionality of suppression. In order to understand those differences it is necessary to understand why compelled expression has traditionally been deemed pathological to First Amendment values. After explaining how that rationale is established as a constitutional baseline and reference point, we will be able to apply it to measure the constitutionality of compelled commercial speech. Once we understand the extent to which compelled commercial speech is appropriately deemed to violate at least one prong of the three-pronged analytical model that I posit, we will then be in a position to determine what sorts of compelling interests will nevertheless justify governmental compulsion.

Recommended Citation

Martin H. Redish, Compelled Commercial Speech and the First Amendment, 94 Notre Dame L. Rev. 1749 (2019).
Available at: https://scholarship.law.nd.edu/ndlr/vol94/iss4/9