Brief of Amicus Curiae of Cato Institute, Competitive Enterprise Institute et al in CTIA v. Berkeley
The Petition squarely presents an important and unsettled question of law that goes to the heart of the First Amendment and raises serious concerns about government power: How much scrutiny does the First Amendment require when governments impose “disclosure” regimes that force sellers to speak and disparage their own products or take sides in a public policy debate they would rather avoid?
The answer to this question is critical. Governments at all levels, across the country, are increasingly turning to compelled disclaimer or warning regimes that “are, for all practical purposes, requirements that commercial actors communicate value-laden messages about inherently political questions.” Jonathan H. Adler, Compelled Commercial Speech and the Consumer “Right to Know”, 58 Ariz. L. Rev. 421, 450 (2016). These mandates raise a serious concern that governments are using so-called disclosures to “burden the speech of others in order to tilt public debate in a preferred direction.” Sorrell v. IMS Health Inc., 564 U.S. 552, 578–79 (2011).
The proliferation of controversial “disclosure” requirements is dangerous. In addition to undermining the fundamental First Amendment “principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence,” Agency for Int’l Dev., 570 U.S. at 213 (quotation mark omitted), these regimes harm speakers in tangible ways. Most obviously, they “burden a [private] speaker with unwanted speech.” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 800 (1988). But they also force private speakers “either to appear to agree” with the government’s “views or to respond.” Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 15 (1986) (plurality opinion). “That kind of forced response,” however, requires speakers to alter their messages in a manner that “is antithetical to the free discussion that the First Amendment seeks to foster.” Id. at 16.
Despite the push toward more forced speech, courts remain uncertain about how to apply the First Amendment to compelled commercial speech. The decision below illustrates the dubious doctrinal innovations this uncertainty encourages. The Ninth Circuit changed the constitutional test used by this Court to scrutinize state-mandated disclosures and permitted the City of Berkeley to avoid producing any evidence to prove that the harms it purportedly seeks to address “are real.” Edenfield v. Fane, 507 U.S. 761, 771 (1993). Judge Wardlaw, dissenting from denial of rehearing en banc, rightly recognized that the panel’s failure to apply the correct legal standard would embolden “state or local government[s] . . . to pass ordinances compelling disclosures by their citizens on any issue the city council votes to promote, without any regard” to the proper level of
First Amendment scrutiny. Pet. App. 130a (Wardlaw, J., dissental).
Unfortunately, the Ninth Circuit is not alone in this confusion. As several members of this Court and the courts of appeal have recognized, the lower courts are sorely in need of additional guidance. In the absence of doctrinal clarity and a reaffirmation of First Amendment principles, some government entities are acting as if the First Amendment no longer meaningfully limits their power. The Court should grant the Petition to clarify that all government attempts to impose content-based speech mandates are subject to rigorous First Amendment scrutiny.