Herz-Roiphe, Daniel, Stubborn Things: An Empirical Approach to Facts, Opinions, and the First Amendment (November 25, 2014). 103 Michigan Law Review First Impressions (2014 Forthcoming). Available for download at SSRN: http://ssrn.com/abstract=2530768

“This essay offers an empirical approach to assessing whether compelled disclosures are “factual” for the purposes of the First Amendment — the central issue at stake in the D.C. Circuit’s upcoming rehearing of National Association of Manufacturers v. SEC (“NAM”). Under the Supreme Court’s holding in Zauderer v. Office of Disciplinary Council, “purely factual and uncontroversial” compelled disclosures receive only minimal constitutional scrutiny. Other forms of commercial speech regulation face more demanding requirements. Whether mandated commercial speech consists of “facts” or “opinions” is therefore an important question — both for NAM and for other related cases. This essay offers a new perspective on the problem by conducting original survey research that assesses whether ordinary consumers understand the compelled disclosures at issue in several recent cases to express facts or opinions. It finds that respondents’ characterizations accord with those of courts in many cases — such as American Meat Institute v. U.S. Department of Agriculture, United States v. United Foods, and United States v. Arnold — but deviate sharply from the D.C. Circuit over the disclosures from NAM and R.J. Reynolds Tobacco Co. v. FDA, which survey participants tended to classify as “purely factual.” The essay argues that while these results do not “prove” or “disprove” any court’s analysis, they could play a valuable role in helping judges understand the disclosures that come before them as NAM, and other similar cases, continue to be litigated.”