Advertising horizon

Tuesday, December 10, 2002

The Supreme Court’s ruling in a recent commercial-speech case elicited a concurrence from Justice Clarence Thomas — and questions. In his concurring opinion in Milavetz, Gallop & Milavetz v. United States, Thomas expressed doubts about Supreme Court law on government-required disclosures for advertising.

Ruling in the case on March 8, 2010, the Court upheld two provisions of the 2005 federal bankruptcy law that require bankruptcy attorneys to include certain language in their ads. For example, the law requires attorneys providing bankruptcy assistance to include the following statement: “We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.”

A Minnesota-based law firm that practices bankruptcy law contended that the provisions amounted to impermissible compelled commercial speech. The Milavetz firm articulated the position that the government cannot force individuals to engage in expression, just as it cannot punish persons for their expression. Under the compelled-speech doctrine, the First Amendment protects the right not to speak.

Writing for the Court, Justice Sonia Sotomayor cited the Court’s 1985 decision in Zauderer v. Office of Disciplinary Counsel for the proposition that “an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.” This is a very low level of constitutional review — a reasonableness standard — that has the practical effect of nullifying constitutional challenges to the disclaimer requirements.

Thomas, long the Court’s primary defender of commercial speech, wrote that he was “skeptical of the premise on which Zauderer rests” and noted that the Court has “refused in other contexts to attach any constitutional significance to the difference between regulations that compel protected speech and regulations that restrict it.”

Thomas has a valid point in the sense that when the government forces advertisers to include certain speech, the advertiser loses choice as to his or her speech. Thomas has recognized this problem in the law for years. Eight years ago, he urged the Court to resolve the question in a case involving a disclaimer in a dental-advertising case, Borgner v. Florida Board of Dentistry (2002), writing that “the lower courts need guidance on the permissibility and scope of state-mandated disclaimers.”

Thomas said in his concurring opinion in Milavetz that in the appropriate case he would be willing “reexamine Zauderer and its progeny” in order to determine if there is “sufficient First Amendment protection against government-mandated disclosures.”

Regrettably, no other member of the Court addressed the issue with the same insight. That is unfortunate, because the issue of compelled disclosures in advertising crops up all the time.

Posted March 2010