This essay offers an empirical approach to the problem, rooted in an argument that the underlying rationale for the fact/opinion distinction in compelled speech doctrine tells us something about how this distinction should be policed. Commercial speech enjoys protection by virtue of its value to listeners, it is from the listener's vantage point, then, that courts should assess whether a compelled disclosure is fact or opinion. And if we are interested in learning how disclosures will affect listeners, we might try asking them, just as courts adjudicating trademark suits frequently use consumer surveys to determine how customers understand the meaning of logos and slogans. To this end, the essay reports the results of an original survey that presented respondents with the disclosures at issue in a number of recent compelled speech cases. The survey asked the respondents to categorize these disclosures as conveying facts or opinions, and the respondents ultimately proved adept at distinguishing between the two-an outcome that suggests that consumer surveys could be a valuable resource for courts as they grapple with disclosures in the First Amendment context. The survey also indicated that the respondents had dramatically different understandings than the D.C. Circuit of the controversial disclosures at issue in NAM and R.J. Reynolds This finding offers a new and important perspective on how courts should treat these, and similar, forms of mandated speech in the ongoing legal battles over their constitutional validity.
Daniel E. Herz-Roiphe,
Stubborn Things: An Empirical Approach to Facts, Opinions, and the First Amendment,
Mich. L. Rev. First Impressions
Available at: https://repository.law.umich.edu/mlr_fi/vol113/iss1/3