Compelled Speech and the Case for Judicial Engagement

Abstract

Laws that compel speech implicate the First Amendment to the U.S. Constitution, which protects not only the right to speak but also the right to choose the content of one's speech. The U.S. Supreme Court's jurisprudence regarding compelled speech, however, has been far from consistent. Although the Court has typically been hostile to laws that compel the expression of opinions, it has been quite tolerant of laws that compel the expression of facts, including mandatory disclaimer laws. This essay examines the Supreme Court's compelled-speech jurisprudence in light of recent findings by Green and Armstrong (2012) that mandatory disclaimers may be worse than useless, leading consumers to make inferior decisions. These findings suggest that a properly engaged judiciary should be more skeptical of the alleged benefits of mandatory disclaimers in both the commercial and political arenas.