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Should We Put a Price on Free Speech?
Abstract
Should public policy guarantee First Amendment rights to all citizens at all times? Some of our commentators think not. We argue that there is good reason to hold to rights. Consistent with economic theory and behavioral research, experimental findings show that mandatory disclaimers harm producers and consumers. They are also expensive to develop and to enforce.
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In this article, the authors introduce the notion of a "sound disclosure" and define it from the perspective of academic, business, and legal/policy (expert) constituencies. The authors define sound disclosure as the direct linkage of a policy standard to a dedicated, rigorous consumer testing methodology that measures explicitly stated communication objectives put forth in the policy. Sound disclosure results when the policy is influenced by the disclosure testing. Consequences of a sound disclosure testing regime can include withdrawing the disclosure from the marketplace because of harmful, unintended consequences to the target population or, conversely, adding supplementary materials (e. g., educational primes) to maximize the disclosure's effectiveness. Drawing from previous research, the authors illustrate various standards of sound disclosure efficacy.
Prior research indicates that mandatory disclaimers increase consumer confusion and lead to inferior decisions. The authors examine the implications of these findings in the context of mandatory disclosures required by federal law for mortgage loan transactions. Research suggests that consumers can be confused when too much information is presented or disclosure information is too complex but falls short of concluding that all mandatory disclaimers increase consumer confusion and lead to inferior decisions. The literature lacks conclusive evidence of the effects of disclosures on decisions and outcomes, such as loan choice or performance, and research examining the role of disclosures in light of other social, contextual, or informational influences is scarce. Longitudinal, experimental evidence that controls for these factors is necessary to examine the effects of disclosures on decision quality. Better-designed research in this area could lead to significant improvements in public policy and consumer protection and result in a more efficient allocation of public resources.
Objective to elaborate the conceptual theoreticallegal provisions and scientific recommendations for the substantiating the inefficiency of mandated disclosure.
Methods general dialectic method of cognition as well as the general scientific and specific legal methods of research based on it.
Results the article explores the spectacular prevalence and failure of the single most common technique for protecting personal autonomy in modern society mandated disclosure. The article has four parts 1 a comprehensive summary of the recurring use of mandated disclosures in many forms and circumstances
in the areas of consumer and borrower protection patient informed consent contract formation and constitutional rights 2 a survey of the empirical literature documenting the failure of the mandated disclosure regime in informing people and in improving their decisions 3 an account of the multitude of reasons mandated disclosures fail focusing on the political dynamics underlying the enactments of these mandates the incentives of disclosers to carry them out and most importantly on the ability of disclosees to use them and 4 an argument that mandated disclosure not only fails to achieve its stated goal but also leads to unintended consequences that often harm the very people it intends to serve.
Scientific novelty the article elaborates and introduces into academic sphere the substantiation of the efficiency of mandated disclosure proves the failure of the mandated disclosure regime in informing people and in improving their decisions and reveals the unintended consequences that often harm the very people it intends to serve.
Practical significance the provisions ad conclusions of the article can be used in scientific lawmaking and lawenforcement activities and in the educational process of institutions of higher education.
Laws that compel speech implicate the First Amendment to the U.S. Constitution, which protects not only the right to speak but also the right to choose the content of one's speech. The U.S. Supreme Court's jurisprudence regarding compelled speech, however, has been far from consistent. Although the Court has typically been hostile to laws that compel the expression of opinions, it has been quite tolerant of laws that compel the expression of facts, including mandatory disclaimer laws. This essay examines the Supreme Court's compelled-speech jurisprudence in light of recent findings by Green and Armstrong (2012) that mandatory disclaimers may be worse than useless, leading consumers to make inferior decisions. These findings suggest that a properly engaged judiciary should be more skeptical of the alleged benefits of mandatory disclaimers in both the commercial and political arenas.
District Court for the District of Columbia
- R J Reynolds Tobacco
- Co
R.J. Reynolds Tobacco Co et al. v. U.S. Food and Drug Administration et al. (2012), U.S. District Court for
the District of Columbia, No. 11-cv-1482, (accessed August 22, 2012), [available at
www.ana.net/getfile/16887].