Compelled Speech and the Irrelevance of Controversy

Compelled Speech and the Irrelevance of Controversy

Article By: Seana Valentine Shiffrin

47 PEPP. L. REV. 731 (2020)

NIFLA v. Becerra stealthily introduced a new First Amendment test for compelled speech that has injected chaos into the law of compelled disclosures. NIFLA reinterpreted the requirement that compelled disclosures contain only “purely factual and uncontroversial information” in a way that imbued independent force into the “uncontroversial” component of that test. Yet, the Court failed to supply criteria for what sort of purely factual information would fail to qualify as “uncontroversial information” and identified no important free speech concerns that this new prong protects.

This Article distinguishes seven different interpretations of “uncontroversial information.” It then assesses them to ascertain whether a meaningful and independent First Amendment value would be protected under each interpretation, making an effort not to conflate the stakes of compelling speech by organizations with the stakes for individuals. Most address no credible, independent free speech concerns whatsoever. Many of them read a disturbing intellectual cowardice into the First Amendment, empowering market actors to refuse to acknowledge inconvenient facts. Whether factual, informational speech is controversial in any meaningful sense should be irrelevant to a First Amendment inquiry.

Nonetheless, there are some other legitimate free speech concerns about compelled disclosures, pertaining to how they are worded, not to the factual information they convey. These concerns may be addressed without invalidating disclosure requirements. Arguably, however, the better frame for compelled disclosures that involve government-scripted speech is to characterize them as government speech and then to resolve significant questions about when we may mandate that institutional speakers broadcast government speech. Still, none of these questions turn on whether the informational content of the speech is controversial.

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