Transparent and Efficient Markets: Compelled Commercial Speech and Coerced Commercial Association in United Foods, Zauderer, and Abood

Abstract

In recent years the Court has decided three cases that address the compelled subsidization of commercial speech. Each of these cases involves a federal statute that creates an industry board empowered to tax producers of a specific agricultural product in order to promote and stabilize the market in that product. Taken together, the decisions in this trilogy evidence manifest and disturbing confusion about the constitutional status of commercial speech. At stake in this confusion is the extent to which First Amendment protections for commercial speech will invalidate regulations that now routinely require commercial actors to disclose information to promote transparent and efficient markets.