Bridging the Gap
Edited by Robert C. Bird, Daniel R. Cahoy and Jamie Darin Prenkert
Chapter 4: The First Amendment, compelled speech and disclosure regulations
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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