By Mike Dorf
My latest Verdict column discusses the recent en banc decision of the Eighth Circuit, which upheld a South Dakota law that requires that a woman seeking an abortion be told that suicide and suicidal ideation are a "known risk" of abortion--even though there is no evidence that abortion causes suicide (or suicidal ideation). The court found that the warning was neither false nor misleading. I explain in the column why this is wrong. Here I want to ask a somewhat broader question: Is there a free speech right not to be required by the government to lie? And I want to suggest that although the answer is yes in many circumstances, it may not always be yes.
In the Eighth Circuit en banc ruling, the court accepted that it would violate the abortion right for the government to require a doctor to provide a patient with false or misleading information about the risks of abortion. The court inferred such a principle from the Supreme Court's abortion cases and, for reasons I explain in the column, I think that's correct.
The plaintiffs also asserted a free speech right. The Eighth Circuit did not assess that independently, stating that to prevail on their free speech claim, the plaintiffs had to satisfy the same standard as they needed to satisfy to prevail on their abortion claim: They needed to show that the government was not requiring false or misleading statements. And because the court found that the required disclosure was not false or misleading, it had no occasion to ponder whether there really is a freestanding First Amendment right not to be coerced by the government into making false or misleading statements.
So, is there? In some sense, yes, of course. After all, there is a general free speech right against compelled speech, recognized in such cases as West Virginia State Board of Education v. Barnette (upholding a right of schoolchildren not to be compelled to recite the Pledge of Allegiance) and Wooley v. Maynard (upholding a right of adults not to be punished for covering over the state motto--"Live Free or Die"--on their license plates). A right against compelled speech includes a right against compelled false or misleading speech.
Nonetheless, there are circumstances in which people can be compelled to speak. Banks (and their employees) can be (and are) required to disclose information about the financial products they offer; car dealers can be (and are) required to disclose information about the cars they sell; and most saliently here, doctors and pharmaceutical companies can be (and are) required to disclose information about the treatments and medicines they respectively offer.
In each of the foregoing circumstances, we imagine--or at least we hope--that the disclosures the government requires are true and non-misleading. But suppose the compelled speech is false. Would the compulsion therefore be unconstitutional in virtue of the fact that it is false?
We might think that, quite apart from the heightened scrutiny to which regulations of speech are ordinarily subject, a government requirement that somebody say something false lacks a rational basis and thus fails even the most minimal judicial scrutiny. Earlier this year, the Sixth Circuit rejected a challenge by tobacco industry plaintiffs to the FDA's requirement of graphic warnings on cigarette packages and advertising. Citing the Supreme Court's ruling in Zauderer v. Office of Disciplinary Counsel, the court held that unlike laws forbidding commercial speech, which are subject to heightened scrutiny, a law compelling speech is subject only to rational basis scrutiny--at least in the context of a facial challenge. The court then concluded, not surprisingly, that health warnings on cigarette packages and advertisements warnings are rationally related to the government's legitimate aim of fostering public health.
But the plaintiffs in the tobacco case did not argue that the graphic warnings are false. They argued that they cannot be made to give over so much of their own speech to the government's message. So let us suppose a case in which the government message is demonstrably false.
Here's my hypothetical example: State A forbids medical marijuana but borders on States B, C and D, all of which permit medical marijuana. Legislators in State A do not want citizens of A using marijuana and are worried that prohibiting it is not enough; patients seeking medical marijuana may try to buy it illegally in State A or travel to a border state to buy it legally. So State A both forbids doctors from telling patients that they can get relief (from nausea, lack of appetite, etc) from marijuana and also mandates that, if a patient asks about marijuana, the doctor must state that it has no medical benefits.
Let's assume that the statement is false. Is the requirement irrational? Certainly not. Here, the state is giving people false information in an effort to dissuade them from using marijuana--a legitimate public health objective. After all, under ordinary principles of rational basis review, if we can imagine circumstances in which the prohibition makes sense, then the law survives. If the state can use the criminal law to forbid marijuana use in the first place, surely it is not irrational for the government to take the lesser step of trying persuade people that they shouldn't use marijuana, even if persuasion takes the form of scare tactics. Compelling people to lie may be immoral but it is not irrational.
However, neither Zauderer nor the Sixth Circuit tobacco case says that mere rational basis scrutiny applies to compelled false statements. Maybe that kind of compelled statement is subject to some more intrusive scrutiny. Intuitively, it certainly feels like a greater intrusion on the liberty of doctors (or even tobacco companies) for them to be required to disclose information that is false.
But such a principle would give rise to a dilemma of enforcement regarding the triggering condition. Must the government know that the compelled statement is false in order for the heightened level of scrutiny to apply? If so, then we have all of the difficulties of purpose tests. Although the Supreme Court has not always honored the sentiment, it was after all a free speech case--United States v. O'Brien--in which CJ Earl Warren said for the Court: "It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." How will a plaintiff prove that government officials knew the compelled statement to be false? Which government officials? In my hypothetical example, we can well imagine that many of the legislators who voted to impose the obligation to tell patients that marijuana has no medical benefits sincerely believe that to be true.
So maybe we should abandon a knowledge/purpose test and simply adopt a principle that the government either can never require people to make false statements or must satisfy heightened scrutiny if it does so. But if the triggering condition is mere falsity (rather than purposeful or knowing falsity), we risk opening the floodgates to litigation by sellers and manufacturers of sundry products subject to disclosure regimes, each claiming that the mandated disclosure is false. Is it sensible to channel such complaints into the courts under the aegis of the First Amendment rather than into the political or administrative realm as a pre-enactment challenge to the contested legislation or regulation? And note that when such challenges occur in the administrative realm, government agencies get substantial deference from the courts.
It's easy to sympathize with the doctor in my hypothetical example, but finding a free speech right to resist the false statement about marijuana would mean inviting backdoor litigation by pharmaceutical companies, doctors and others who lost fair and square in the ordinary channels. Accordingly, the least-bad solution may well be to say that in the regulatory context the First Amendment subjects requirements of false or misleading disclosures to mere rational basis scrutiny. I'm not happy with that solution but as I've said, it's at best the least bad approach, not a good approach.