Earlier this year, I noted two DC Circuit decisions on compelled speech – disclaimer requirements around country of origin labeling (“COOL”) for meat and “conflict free” diamonds. In each case, the court struck down the labeling requirements, applying the “intermediate scrutiny” standard for commercial speech regulation.
In a notable decision this week the DC Circuit, sitting en banc, reversed the COOL case. And in so doing, it explicitly overruled language in the “conflict diamond” decision applying the intermediate scrutiny standard.
Why is this important? Because the court is saying that disclaimer and disclosure requirements are only subject to the lightest of constitutional burdens – the requirement that the compelled speech be “reasonably related” to the government’s interests and objectives. This is a very low bar (and to make matters worse, the court declined to even hold that the government’s interest must be substantial).
The critical case at play is one I’ve written about before: Zauderer v. Office of Disciplinary Counsel. Zauderer isn’t as clear as it could be on this point, but most courts (including the two panels of the DC Circuit that first heard the COOL and conflict-free cases) have read it to apply the lower bar of “reasonably related” only to those cases where the compelled disclosure is necessary to prevent deception.
The DC Circuit has now thrown the gates wide open, allowing virtual carte blanche forall manner of speech the government might want a business to disseminate. This bodes well for proponents of things like lawyer advertising disclaimers and GMO labeling requirements, but it is certainly a setback for free speech.
Here’s hoping our very free-speech-friendly Supreme Courts steps in and clarifies that compelled speech, just like prohibitions on speech, should be carefully circumscribed.
UPDATE: Jonathan Adler at the Volokh Conspiracy has a more in-depth look at the decision and the vexing issues it raises.