First Amendment Limitations on Disclosure Requirements

First Amendment Limitations on Disclosure Requirements

April 26, 2023
First Amendment Limitations on Disclosure Requirements
The government often requires regulated entities to make
has applied an exacting scrutiny standard. That level of
disclaimer statements or disclose information. These
review is less rigorous than strict scrutiny but still relatively
disclosure requirements are often seen as a more speech-
stringent. It requires the government to show its action is
friendly alternative to governmental prohibitions on speech.
substantially related to a sufficiently important interest. The
They can still run afoul of the First Amendment, however,
Court has applied a form of exacting scrutiny to
because the Free Speech Clause limits the government’s
government-compelled subsidization, such as requiring
ability to compel speech. This In Focus provides an
public employees to pay fees to a union bargaining agent.
overview of First Amendment limitations on disclosure
Such cases are discussed in Compelled Subsidization,
requirements.
CONSTITUTION ANNOTATED. This standard has also
generally applied to claims involving expressive
Compelled Speech: Basic Principles
association, meaning the right to associate with others to
The Free Speech Clause applies both when the government
engage in First Amendment activity.
punishes a person for speaking and when the government
compels a person to speak. For example, a public school
The Court has applied less stringent standards of scrutiny
cannot force a student to recite the Pledge of Allegiance, as
when evaluating disclosures involving commercial speech.
it is generally unconstitutional to force a person to espouse
In the commercial context, courts generally apply a level of
certain political or social views. Compelled factual
intermediate scrutiny that requires the regulation to
disclosures can also trigger constitutional protections when
directly advance a substantial interest. Certain commercial
they require a person to communicate an unwanted
disclosure requirements are subject to an even more lenient
message. The burdens associated with disclosure
standard that requires only a reasonable relationship
requirements, and any penalties for noncompliance, can
between the means and ends.
chill protected speech, potentially dissuading regulated
entities from speaking at all.
Specific Types of Disclosures
Although the Constitution generally protects against
The Supreme Court has applied a variety of “means-end”
compelled speech, courts have upheld disclosure
tests to determine whether disclosure requirements comply
requirements in various circumstances. At the same time,
with the First Amendment. These tests ask the government
courts have struck down disclosure requirements that are
to prove a speech regulation is appropriately tailored to a
unduly burdensome and fail means-end scrutiny.
sufficiently important goal—that is, to justify its means and
end. Under this framework, laws raising more significant
Campaign Finance Disclosures and Disclaimers
free speech concerns must be more carefully tailored to a
The Federal Election Campaign Act (FECA) sets forth
more weighty government interest. The Court’s approach
disclosure and disclaimer requirements for federal
has varied depending on the type of speech being
campaign financing. In this context, the term disclosure
compelled.
refers to periodic reporting to the Federal Election
Commission, which is publicly available, and the term
In a 2018 case, the Supreme Court suggested compelled
disclaimer refers to a statement of attribution appearing
disclosures ordinarily trigger rigorous scrutiny. The Court
directly on a campaign-related communication. The
said that when the government compels “individuals to
Supreme Court has generally affirmed the constitutionality
speak a particular message,” it engages in content-based
of FECA’s disclosure and disclaimer requirements even
regulation of speech. Nat’l Inst. of Family & Life Advocates
though they infringe “on privacy of association and belief
v. Becerra, 138 S. Ct. 2361, 2371 (2018). Content-based
guaranteed by the First Amendment.” Buckley v. Valeo, 424
regulations usually trigger strict scrutiny, as discussed in
U.S. 1, 64 (1976). Applying the exacting scrutiny standard
CRS In Focus IF12308, Free Speech: When and Why
outlined above, the Court has identified three government
Content-Based Laws Are Presumptively Unconstitutional,
interests justifying these requirements: (1) providing voters
by Victoria L. Killion. The strict scrutiny standard requires
with information; (2) deterring quid pro quo candidate
the government to show its regulatory approach is narrowly
corruption and avoiding its appearance; and (3) facilitating
tailored to achieve a compelling interest. A law is narrowly
the enforcement of campaign finance law. For more
tailored if no less-speech-restrictive alternatives would
information, see CRS In Focus IF11398, Campaign
achieve its goal. This standard is so difficult to meet that
Finance Law: Disclosure and Disclaimer Requirements for
courts consider laws presumptively unconstitutional under
Political Campaign Advertising, by L. Paige Whitaker; or
strict scrutiny review.
Campaign Finance Disclosure and Disclaimer
Requirements, CONSTITUTION ANNOTATED.
For some types of laws, including those regulating
campaign finance or donor disclosures, the Supreme Court
https://crsreports.congress.gov

First Amendment Limitations on Disclosure Requirements
In Americans for Prosperity Foundation v. Bonta, 141 S.
1972). For more information, see CRS In Focus IF11439,
Ct. 2373 (2021), the Court applied a more rigorous form of
Foreign Agents Registration Act (FARA): A Legal
exacting scrutiny requiring narrow tailoring to a non-
Overview, by Whitney K. Novak.
campaign-finance donor disclosure requirement. This case
is discussed in more detail under “Private Entity Financial
Commercial Disclosures and Product Labeling
Disclosures.” Some lower courts have since applied this
The Supreme Court has defined commercial speech as
stricter form of exacting scrutiny in cases challenging
speech that only proposes a commercial transaction or that
campaign finance disclosure and disclaimer laws, with
is related solely to the economic interests of the speaker and
mixed results. Compare No on E v. Chiu, 62 F.4th 529, 533
its audience. Regulations of commercial speech—including
(9th Cir. 2023) (holding that a city’s disclaimer requirement
disclosure requirements—will generally be subject to
for certain campaign ads was likely constitutional), with
intermediate scrutiny, outlined above. Certain commercial
Wyo. Gun Owners v. Wyo. Sec. of State, 592 F. Supp. 3d
disclosure requirements are subject to an even more lenient
1014, 1023 (D. Wyo. 2022) (holding that a state’s
standard of scrutiny. Laws that compel only “factual and
disclosure requirement for donations “related to”
uncontroversial information” related to the goods or
electioneering communications was not narrowly tailored),
services the speaker provides may be upheld if they are
appeal filed, No. 22-8021 (10th Cir. May 10, 2022).
“reasonably related” to a sufficient government interest.
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626,
Public Employee Financial Disclosures
651 (1985). Courts have disagreed about whether this
The Ethics in Government Act of 1978 requires certain
standard applies outside the context of preventing deceptive
high-level officials to make periodic public disclosures of
advertising. Most courts to consider the question have held
their finances. Constitutional challenges to these disclosure
that it does apply to other types of commercial speech (such
requirements have centered more on one’s right to privacy,
as product labels), and to other government interests as long
rather than First Amendment concerns. However, in such a
as the interest is more than purely hypothetical. Even under
privacy challenge, at least one court rejected a strict
this standard, though, a disclosure requirement may be
scrutiny analysis in favor of a balancing test that weighs the
struck down if it is unduly burdensome. For more
injury imposed by the law against the government interest
information, see CRS Report R45700, Assessing
furthered by the law. The court ruled that the government
Commercial Disclosure Requirements under the First
interests furthered by employee financial disclosures—
Amendment, by Valerie C. Brannon.
increasing public confidence in the government and
deterring conflicts of interest—are “important.” Duplantier
Private Entity Financial Disclosures
v. United States, 606 F.2d 654, 670 (5th Cir. 1979).
Congress has long required financial disclosures related to
investments (e.g., securities) and taxation. Outside the
Lobbying and Foreign Influence
campaign finance context, financial disclosures may qualify
The Supreme Court has long held that public disclosure of
as commercial disclosures subject to lower constitutional
“who is being hired, who is putting up the money, and how
scrutiny. One court upheld certain SEC disclosures,
much” is spent to influence legislation is a “vital national
applying only rational basis review after concluding that
interest.” United States v. Harriss, 347 U.S. 612, 625–26
securities regulation involves a “different balance of
(1954). The Lobbying Disclosure Act of 1995, as amended
concerns” than other compelled speech, particularly when
in 2007, contains disclosure obligations relating to lobbying
disclosure is to the agency alone. Full Value Advisors, LLC
activities. In evaluating a First Amendment challenge to the
v. SEC, 633 F.3d 1101, 1109 (D.C. Cir. 2011). Financial
2007 amendments, one court ruled that the disclosure
and corporate governance disclosures may be more
provisions at issue satisfied strict scrutiny, obviating the
susceptible to a First Amendment challenge, however, if
need to decide whether to apply the less-stringent exacting
they are “inextricably intertwined” with noncommercial
scrutiny standard. The court held that the strength of the
speech or bear a speculative connection to the government’s
government interest in greater transparency about lobbying
interest. Riley v. Nat’l Fed’n of Blind, 487 U.S. 781, 796
“reflects the seriousness of the actual burden” the disclosure
(1988). Additionally, disclosures available to the public
placed on First Amendment rights. Nat’l Ass’n of Mfrs. v.
might carry a greater risk of chilling protected speech than
Taylor, 582 F.3d 1, 10 (D.C. Cir. 2009). For more
disclosures to the government.
information, see Lobbying, CONSTITUTION ANNOTATED.
In Americans for Prosperity Foundation v. Bonta, 141 S.
Congress enacted the Foreign Agents Registration Act
Ct. 2373 (2021), the Supreme Court signaled that financial
(FARA) in 1938 to reduce the influence of foreign
disclosure laws implicating protected association should
propaganda circulating in the United States. Under FARA,
receive exacting scrutiny, regardless of whether the
agents of foreign principals must register with the federal
disclosure is made to the public or the government alone.
government, make a public record of the nature of their
The Court recognized that the right of association protects
principal-agent relationship, and maintain all records for
charitable donors’ interests in contributing anonymously to
official inspection. One court held that FARA satisfied
groups and causes they support. The Court held a state law
exacting scrutiny, ruling that FARA’s disclosures bear a
automatically requiring charities to submit donor
substantial relation to the legitimate governmental interest
information was not narrowly tailored to the state’s interest
in “protect[ing] the interests of the United States by
in preventing fraud.
requiring complete public disclosure by persons acting for
or in the interests of foreign principals.” Att’y Gen. v. Irish
Valerie C. Brannon, Legislative Attorney
N. Aid Comm., 346 F. Supp. 1384, 1390–91 (S.D.N.Y.
Victoria L. Killion, Legislative Attorney
https://crsreports.congress.gov

First Amendment Limitations on Disclosure Requirements

L. Paige Whitaker, Legislative Attorney
Whitney K. Novak, Legislative Attorney
IF12388

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