“Visual Gut Punch: Persuasion, Emotion, and the Constitutional Meaning of Graphic Disclosure”

That's the name of this article by Ellen Goodman concerning disclosure requirements and the First Amendment. Here is abstract:

ability of government to “nudge” with information mandates, or merely to
inform consumers of risks, is circumscribed by First Amendment
interests that have been poorly articulated. New graphic cigarette
warning labels supplied courts with the first opportunity to assess the
informational interests attending novel forms of product disclosures.
The D.C. Circuit enjoined them as unconstitutional, compelled by a
narrative that the graphic labels converted government from objective
informer to ideological persuader, shouting its warning to manipulate
consumer decisions. This interpretation will leave little room for
graphic disclosure and is already being used to challenge textual
disclosure requirements (such as county-of-origin labeling) as
unconstitutional. Graphic warning and the increasing reliance on
regulation-by-disclosure present new free speech quandaries related to
consumer autonomy, state normativity, and speaker liberty. This article
examines the distinct goals of product disclosure requirements and how
those goals may serve to vindicate, or to frustrate, listener interests.
It argues that many disclosures, and especially warnings, are
necessarily both normative and informative, expressing value along with
fact. It is not the existence of a norm that raises constitutional
concern, but rather the insistence on a controversial norm. Turning to
the means of disclosure, the article examines how emotional and graphic
communication might change the constitutional calculus. Using autonomy
theory and the communications research on speech processing, it
concludes that disclosures do not bypass reason simply by reaching for
the heart. If large graphic labels are unconstitutional, it will be
because of undue burden on the speaker, not because they are emotionally
powerful. This article makes the following distinct
contributions to the compelled commercial speech literature: Critiques
the leading precedent, Zauderer v. Office of Disciplinary Counsel, from a
consumer autonomy standpoint; Brings to bear empirical communications
research on questions of facticity and rationality in emotional and
graphic communications; Teases apart and distinguishes among various
free speech dangers and contributions of commercial disclosure mandates
with a view towards informing policy, law and research.

Leave a Reply

Your email address will not be published. Required fields are marked *