{"title":"第一修正案对强制性言论的限制。","authors":"Nigel Barrella","doi":"","DOIUrl":null,"url":null,"abstract":"<p><p>Government-mandated labeling requirements have a long history, and are used extensively by FDA in regulating the industries under its jurisdiction. All such requirements can be characterized as a form of “compelled speech,” opening the door to First Amendment challenges. And some of these challenges, depending on the nature of the labeling requirement, have even been successful. Under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, regulations that compel disclosure of information will, in many cases, merit only very limited First Amendment scrutiny—less, even, than most other regulations of commercial speech, which receive a type of “intermediate scrutiny.” The labeling requirement that can best avoid or overcome a First Amendment challenge, therefore, will follow the example of the regulation described in Zauderer. For example, Zauderer applied its lower scrutiny by noting that the compelled speech at issue was a disclosure of “purely factual and uncontroversial information.” Conversely, a successful First Amendment challenge to a labeling requirement will often involve an argument that the labeling requirement is outside the scope of what the Zauderer Court contemplated: so, for example, one may argue that a compelled disclosure is either “not factual” or else “controversial,” putting it beyond Zauderer’s reach. After briefly reviewing the major Supreme Court cases that establish the levels of scrutiny for commercial speech and compelled disclosures, the paper will discuss how the various elements of Zauderer have been analyzed by several lower courts, and how some courts have distinguished Zauderer in the context of labeling and other mandatory disclosure laws. In particular, the paper will focus on cases involving First Amendment challenges to food, tobacco, and drug labeling requirements—some successful, some not, and some ongoing—including cases challenging FDA, USDA, and state-level labeling requirements. The decided cases do not all agree on how to understand the elements of Zauderer—for example, must a disclosure be factually controversial to fall outside of Zauderer’s limited review, or may it be factually unquestionable but relating to a controversial topic? What role, if any, should public acceptance, knowledge, and history play? What sorts of interests may the government invoke to justify a labeling requirement? Although some courts have taken (or at least hinted at) strict limits on the meaning of Zauderer, most courts have read Zauderer as applying somewhat more expansively to circumstances beyond its facts. The paper concludes that generally, courts have read Zauderer more expansively in part because such a reading is consistent with existing, familiar labeling requirements, and a narrow reading of Zauderer limited to its facts would rest on a slippery slope to abolishing many accepted and historically unquestioned labeling requirements. Any future attempts to expand judicial review of labeling requirements would do well to highlight limiting principles that address such concerns.</p>","PeriodicalId":12282,"journal":{"name":"Food and drug law journal","volume":null,"pages":null},"PeriodicalIF":0.3000,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"First Amendment Limits on Compulsory Speech.\",\"authors\":\"Nigel Barrella\",\"doi\":\"\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"<p><p>Government-mandated labeling requirements have a long history, and are used extensively by FDA in regulating the industries under its jurisdiction. All such requirements can be characterized as a form of “compelled speech,” opening the door to First Amendment challenges. And some of these challenges, depending on the nature of the labeling requirement, have even been successful. Under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, regulations that compel disclosure of information will, in many cases, merit only very limited First Amendment scrutiny—less, even, than most other regulations of commercial speech, which receive a type of “intermediate scrutiny.” The labeling requirement that can best avoid or overcome a First Amendment challenge, therefore, will follow the example of the regulation described in Zauderer. For example, Zauderer applied its lower scrutiny by noting that the compelled speech at issue was a disclosure of “purely factual and uncontroversial information.” Conversely, a successful First Amendment challenge to a labeling requirement will often involve an argument that the labeling requirement is outside the scope of what the Zauderer Court contemplated: so, for example, one may argue that a compelled disclosure is either “not factual” or else “controversial,” putting it beyond Zauderer’s reach. After briefly reviewing the major Supreme Court cases that establish the levels of scrutiny for commercial speech and compelled disclosures, the paper will discuss how the various elements of Zauderer have been analyzed by several lower courts, and how some courts have distinguished Zauderer in the context of labeling and other mandatory disclosure laws. In particular, the paper will focus on cases involving First Amendment challenges to food, tobacco, and drug labeling requirements—some successful, some not, and some ongoing—including cases challenging FDA, USDA, and state-level labeling requirements. The decided cases do not all agree on how to understand the elements of Zauderer—for example, must a disclosure be factually controversial to fall outside of Zauderer’s limited review, or may it be factually unquestionable but relating to a controversial topic? What role, if any, should public acceptance, knowledge, and history play? What sorts of interests may the government invoke to justify a labeling requirement? Although some courts have taken (or at least hinted at) strict limits on the meaning of Zauderer, most courts have read Zauderer as applying somewhat more expansively to circumstances beyond its facts. The paper concludes that generally, courts have read Zauderer more expansively in part because such a reading is consistent with existing, familiar labeling requirements, and a narrow reading of Zauderer limited to its facts would rest on a slippery slope to abolishing many accepted and historically unquestioned labeling requirements. Any future attempts to expand judicial review of labeling requirements would do well to highlight limiting principles that address such concerns.</p>\",\"PeriodicalId\":12282,\"journal\":{\"name\":\"Food and drug law journal\",\"volume\":null,\"pages\":null},\"PeriodicalIF\":0.3000,\"publicationDate\":\"2016-01-01\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"0\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Food and drug law journal\",\"FirstCategoryId\":\"97\",\"ListUrlMain\":\"\",\"RegionNum\":4,\"RegionCategory\":\"医学\",\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q4\",\"JCRName\":\"FOOD SCIENCE & TECHNOLOGY\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Food and drug law journal","FirstCategoryId":"97","ListUrlMain":"","RegionNum":4,"RegionCategory":"医学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q4","JCRName":"FOOD SCIENCE & TECHNOLOGY","Score":null,"Total":0}
Government-mandated labeling requirements have a long history, and are used extensively by FDA in regulating the industries under its jurisdiction. All such requirements can be characterized as a form of “compelled speech,” opening the door to First Amendment challenges. And some of these challenges, depending on the nature of the labeling requirement, have even been successful. Under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, regulations that compel disclosure of information will, in many cases, merit only very limited First Amendment scrutiny—less, even, than most other regulations of commercial speech, which receive a type of “intermediate scrutiny.” The labeling requirement that can best avoid or overcome a First Amendment challenge, therefore, will follow the example of the regulation described in Zauderer. For example, Zauderer applied its lower scrutiny by noting that the compelled speech at issue was a disclosure of “purely factual and uncontroversial information.” Conversely, a successful First Amendment challenge to a labeling requirement will often involve an argument that the labeling requirement is outside the scope of what the Zauderer Court contemplated: so, for example, one may argue that a compelled disclosure is either “not factual” or else “controversial,” putting it beyond Zauderer’s reach. After briefly reviewing the major Supreme Court cases that establish the levels of scrutiny for commercial speech and compelled disclosures, the paper will discuss how the various elements of Zauderer have been analyzed by several lower courts, and how some courts have distinguished Zauderer in the context of labeling and other mandatory disclosure laws. In particular, the paper will focus on cases involving First Amendment challenges to food, tobacco, and drug labeling requirements—some successful, some not, and some ongoing—including cases challenging FDA, USDA, and state-level labeling requirements. The decided cases do not all agree on how to understand the elements of Zauderer—for example, must a disclosure be factually controversial to fall outside of Zauderer’s limited review, or may it be factually unquestionable but relating to a controversial topic? What role, if any, should public acceptance, knowledge, and history play? What sorts of interests may the government invoke to justify a labeling requirement? Although some courts have taken (or at least hinted at) strict limits on the meaning of Zauderer, most courts have read Zauderer as applying somewhat more expansively to circumstances beyond its facts. The paper concludes that generally, courts have read Zauderer more expansively in part because such a reading is consistent with existing, familiar labeling requirements, and a narrow reading of Zauderer limited to its facts would rest on a slippery slope to abolishing many accepted and historically unquestioned labeling requirements. Any future attempts to expand judicial review of labeling requirements would do well to highlight limiting principles that address such concerns.
期刊介绍:
The Food and Drug Law Journal is a peer-reviewed quarterly devoted to the analysis of legislation, regulations, court decisions, and public policies affecting industries regulated by the U.S. Food and Drug Administration (FDA) and related agencies and authorities, including the development, manufacture, marketing, and use of drugs, medical devices, biologics, food, dietary supplements, cosmetics, veterinary, tobacco, and cannabis-derived products.
Building on more than 70 years of scholarly discourse, since 2015, the Journal is published in partnership with the Georgetown University Law Center and the O’Neill Institute for National & Global Health Law.
All members can access the Journal online. Each member organization and most individual memberships (except for government, student, and Emeritus members) receive one subscription to the print Journal.