Zauderer, properly understood, fits comfortably within the Central Hudson framework. First, recall (as the court has reiterated time and again) that the First Amendment provides equivalent protection for both the right to speak and the right not to speak. Thus there is no reason to assume that mandatory disclosures get a pass, even in the commercial context. Next, recall that under Central Hudson, commercial speech is only eligible for heightened protection if the speech concerns lawful activity and is not misleading. Thus the Zauderer court’s holding that mandatory disclosures will be readily upheld so long as they are “reasonably related to the State’s interest in preventing deception of consumers,” was nothing new. Rather it was a straightforward application of Central Hudson (even if the Zauderer Court did not say as much). To reiterate: misleading speech does not receive Central Hudson‘s enhanced protection, so mandatory disclosure requirements related to the government’s interest in preventing deception need not satisfy Central Hudson‘s requirement of a substantial governmental interest. . . .Misleading speech is not entitled to Central Hudson‘s protection at all. Further, even ifpotentially misleading speech were to be protected by Central Hudson —say, speech that has the potential to mislead some consumers in some contexts – the government clearly has a substantial governmental interest in preventing consumer deception or confusion. Thus applying Central Hudson does not prevent the government from adopting all manner of rules designed to ensure consumers are not defrauded or unduly confused by commercial messages.
Requiring government disclosure requirements to meet the standard commercial speech test of Central Hudson does not threaten most disclosure requirements. Under Central Hudson, the government must identify a substantial governmental interest in order to regulate commercial speech. Disclosure or labeling requirements that serve to prevent consumer deception or prevent unwitting harms easily meet this requirement. Indeed, Central Hudson makes clear that commercial speech is only protected if it concerns lawful activity and is non-deceptive. So understood, most SEC financial disclosure rules, FDA and USDA food labeling requirements, consumer safety warnings, and the like are likely constitutional. The sorts of disclosure requirements put at risk by such a rule are only those, like conflicts mineral disclosure, that seek to force producers or retailers to stigmatize products so as to discourage consumers from buying them. If the government wants to influence consumer behavior in this way, it can do so with its own speech — such as through advertising campaigns and consumer education.
forcing the disclosure of facts about goods or services is rarely a value-neutral act. There are always a near-infinite number of facts about a good or service that may be of interest to consumers, and yet there is only limited space to communicate such information. Label space is limited, as is the attention span of consumers. There can be too little information about a product, but also too much. When the government mandates the disclosure of specific information it is declaring that such information is more important — and is entitled to greater consideration — than other potentially relevant information about the good or service. So, for instance, when the government mandates conflict mineral disclosure, it is suggesting that consumers should care more about this than, say, the sustainability of the products, the source of labor used, the company’s environmental record or charitable giving, and so on. This is not a neutral act, and thus should be subject to constitutional scrutiny.