Compelled Disclosure and the Workplace Rights it Enables

Worker and consumer protection laws often rely on the regulated entity to notify workers or consumers of their legal rights because it is effective and efficient to provide information at the time and place where it is most likely to be useful. Until the Supreme Court ruled in NIFLA v. Becerra in 2018 that a California law regulating crisis pregnancy centers was an unconstitutional speaker-based, content-discriminatory regulation of speech, mandatory disclosure laws were constitutionally uncontroversial economic regulation. Yet, the day after striking down a disclosure law in NIFLA, the Court in Janus v. AFSCME Council 31 expanded the right of workers to resist supporting unions, a right that depends on an even more intrusive compelled notice regime than the one the Court struck down in NIFLA. When the Court found a First Amendment right not to disclose on one day and a First Amendment right to receive information based on a system of mandatory disclosure on the next, it revealed that treating disclosure rules as compelled speech inevitably requires the Court to pick sides in fights involving free speech or other rights claims on both sides. This essay argues that compulsory notice or disclosure laws are not constitutionally problematic when and insofar as they require statements of fact or statements of policy that are unambiguously labeled as speech of the government rather than the views of the speaker.