Amdt1.7.3.6 Content-Based and Compelled Speech

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court has suggested that laws that compel speech, such as labeling or disclosure requirements, are typically content based because they alter the content of the speaker’s message.1 For example, in a 2018 case, the Court considered a state law that required licensed pregnancy resource centers to post a notice that the state provided free or low-cost access to certain services, including abortion.2 The Court held that this requirement regulated speech based on its content.3 The Court reasoned that by requiring the petitioners (pregnancy resource centers that opposed abortion) “to inform women how they can obtain state-subsidized abortions—at the same time petitioners try to dissuade women from choosing that option—the licensed notice plainly ‘alters the content’ of petitioners’ speech.” 4 The Court concluded that heightened scrutiny should apply,5 because the law required the petitioners to adopt a “government-drafted script” about a service—abortion—that the petitioners opposed.6

Thus, laws that compel private speakers to make a particular statement or to include certain information in their own speech are likely content based.7 Whether such requirements would receive strict scrutiny, intermediate scrutiny, or a lesser degree of scrutiny, depends, among other things, on whether they involve commercial speech and concern the speaker’s own product or services.8

Nat’l Inst. of Family & Life Advocates (NIFLA) v. Becerra, No. 16-1140, slip op. at 7 (U.S. June 26, 2018); Riley v. Nat’l Fed’n of Blind, 487 U.S. 781, 795 (1988) ( “Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech.” ). back
NIFLA, slip op. at 3. back
Id. at 7. back
Id. (quoting Riley, 487 U.S. at 795). back
In some circumstances, the Court has evaluated commercial disclosure requirements under a less rigorous standard of scrutiny. See Amdt1.7.12.1 Overview of Compelled Speech. back
NIFLA, slip op. at 7, 9. Although the Court suggested that the notice requirement should receive strict scrutiny, the Court declined to resolve whether strict or intermediate scrutiny was the appropriate standard because it concluded that the law “cannot survive even intermediate scrutiny.” Id. at 14–16 (evaluating the law at the preliminary injunction stage and concluding that the petitioners were likely to succeed on the merits of their First Amendment challenge). back
See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345 (1995) (reasoning that a state’s ban on anonymous campaign literature was “a direct regulation of the content of speech” because it required such documents to contain the name and address of the person or organization that issued them); Riley, 487 U.S. at 795 (evaluating a requirement that professional fundraisers disclose information about charitable contributions collected during the previous year before soliciting funds as a content-based regulation of speech); Pac. Gas & Elec. Co. v. Pub. Utils. Com., 475 U.S. 1, 9–16, 20–21 (1986) (plurality opinion) (invalidating a state law that required a private company to include in its billing envelopes, alongside its own newsletter, third-party speech that the company opposed). back
NIFLA, slip op. at 14. See also, Amdt1.7.11.4 Campaign Finance Disclosure and Disclaimer Requirements, for a discussion of the exacting scrutiny standard that generally applies to campaign-finance disclosure requirements. back