Assessing Commercial Disclosure Requirements Under the First Amendment [April 23, 2019] [open pdf - 1MB]
From the Introduction: "Disclosure provisions that require commercial actors to convey specified information to consumers occupy an uneasy and shifting space in First Amendment jurisprudence. The First Amendment's Free Speech Clause protects the right to speak as well as the right 'not' to speak, and at least outside the context of commercial speech, courts generally disfavor any government action that compels speech. Indeed, the Supreme Court in 1943 described the First Amendment's protection against compelled speech as a 'fixed star in our constitutional constellation.' Accordingly, government actions mandating speech are generally subject to strict scrutiny by courts, and will be upheld 'only if the government proves that they are narrowly tailored to serve compelling state interests.' However, the Court has also long accepted a variety of laws that require commercial actors to make certain disclosures to consumers, confirming that Congress can compel certain disclosures, even those involving protected speech, without running afoul of the First Amendment. [...] This report begins with a short background on how courts generally view commercial speech under the First Amendment, then reviews in more detail the possible legal frameworks for analyzing the constitutionality of commercial disclosure requirements."
CRS Report for Congress, R45700
Congressional Research Service: https://crsreports.congress.gov/