Law, Business and Human Rights

Law, Business and Human Rights

Bridging the Gap

Edited by Robert C. Bird, Daniel R. Cahoy and Jamie Darin Prenkert

The intersection of business and human rights contains substantial economic, social, and political implications. Global business enterprises and civil society groups must establish a constructive and meaningful dialogue in order to work cooperatively to protect human rights. In this innovative book, the authors explore the role of firms in respecting human rights and explain the need for a better understanding of the human rights of affected stakeholders. The goal is to draw attention to these issues and generate common ground between two potentially disparate and conflicting interests.

Chapter 4: The First Amendment, compelled speech and disclosure regulations

Lucien J. Dhooge

Subjects: business and management, business ethics and trust, corporate social responsibility, law - academic, human rights


Government regulation of business in the United States is ubiquitous and inescapable. Although regulation may take many different approaches, one common form is based upon disclosure. These regulations may engender conflict between the government’s interest in full and meaningful disclosure and business interests in shielding certain types of information, the disclosure of which could prove harmful to an industry and its individual members. These conflicts have recently manifested themselves in numerous judicial challenges by individual companies and trade associations utilizing the prohibition upon compelled speech. Courts have applied a variety of standards by which to determine the constitutionality of these regulations. This chapter analyzes recent challenges to disclosure regulations in the context of the type of speech and the appropriate level of constitutional scrutiny. The discussion is particularly relevant to disclosures that relate to human rights issues. The First Amendment to the U.S. Constitution states, in part, that “Congress shall make no law … abridging the freedom of speech” (U.S. Constitution, amendment I). The right to speak and the right to refrain from speaking are “complementary components of the broader concept of individual freedom of mind” enshrined within the First Amendment (Wooley v. Maynard, p._714, 1977). This “freedom of mind” protects individuals and corporations against governmental action compelling speech. The value of this prohibition to speakers is readily apparent. The prohibition upon compelled speech also serves listener interests in receiving information free from government compulsion and potential distortion.

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