First Amendment Protections for Commercial Actors

Date: March 07, 2018

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Time and again, NFIB reminds courts that simply because one has chosen to go into business does not mean that a business owner relinquishes all constitutional rights. If the government could compel waiver of constitutional rights as a condition of permitting economic activity it could easily manipulate our constitutional rights out of existence entirely.

Yet when it comes to First Amendment rights, the courts too often treat commercial actors as second-class citizens—as if their free speech rights were entitled to lesser protections. For example, we recently filed an amicus brief in CTIA v. City of Berkeley, urging the U.S. Supreme Court to take-up a case from the Ninth Circuit concerning the proper standard for reviewing government mandates compelling businesses to make communicative statements to the public. The general rule is that government cannot compel an individual to speak against his or her will because that violates the First Amendment just as much as if the government should prohibit speech. The only way to justify such regulation is for government to demonstrate that it seeks to advance a compelling state interest of the highest order, and only then if the regulation is carefully tailored to minimize the burden on First Amendment rights.

Unfortunately, the Ninth Circuit has contravened this general rule. This appellate circuit, covering a vast portion of the western United States, has found that government can compel commercial actors to speak against their will with only a minimal policy justification. By contrast, in other portions of the country small businesses have greater First Amendment protections. For example, as noted in our amicus brief, a Florida business was nearly run into the ground after state officials told the company that they had to place labels on their skim milk products that needlessly confused customers. That business lost so much revenue that it would have gone under if it had not succeeded in convincing the U.S. Court of Appeals for the Eleventh Circuit to invalidate the state’s labeling requirement. In the West Coast, a business has no meaningful constitutional protection; even without a compelling justification, state authorities in California, Oregon or Washington would prevail.

It doesn’t make sense to think that the First Amendment should apply differently in various parts of the country. Accordingly, we think the time has come for the U.S. Supreme Court to decide, once and for all, whether government may compel commercial disclosures for honest and non-deceptive companies.

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