Compelled disclosure requirements and the First Amendment

Government-compelled disclosures can infringe First Amendment freedoms. While a mandated disclosure is not a direct restriction on speech, it can among other things threaten the ability of individuals to associate for common purposes — particularly if the forced disclosure would lead to threats and harassment. Furthermore, when the government demands that an individual or group disclose or disclaim, it is compelling speech. 

Certain types of government-mandated disclosures are quite common, especially in commercial or quasi-commercial settings, such as ingredient labeling on food products or in advertisements for legal help or prescription drugs. However, when governments attempt to require, for example, that private organizations disclose lists of members or donors, or other sensitive private information, there is serious risk of violating the First Amendment, and in recent years the Supreme Court at times has been skeptical of such efforts. (For more on the compelled speech doctrine as it pertains to individual freedom of conscience, see FIRE’s Guide to Free Speech on Campus.)

Compelled disclosures and freedom of association

Government-mandated disclosures can impact speech and associational interests. Consider the classic case of NAACP v. Alabama ex rel. Patterson (1958), which arose out of the state of Alabama’s attempt to shut down the National Association for the Advancement of Colored People. The state targeted the NAACP because the group had proven quite effective in marshalling support for the burgeoning civil rights movement. 

The state of Alabama filed documents in court seeking to compel the NAACP to disclose its rank-and-file membership list. The NAACP resisted this compulsion, contending the disclosure would lead to violence and economic reprisals (loss of jobs) for NAACP members. 

The U.S. Supreme Court agreed, holding the mandated disclosure would have a serious chilling effect on freedom of association. The Court noted that “effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” The Court added: 

It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.

In 2021, the Court cited NAACP as a primary precedent in upholding a First Amendment challenge to a California law that required charitable organizations to disclose their major donors to the state attorney general’s office. Writing for the majority in Americans for Prosperity Foundation v. Bonta (2021), Chief Justice John Roberts explained that the government can regulate First Amendment freedoms through compelled disclosures only in a very narrowly tailored way. The state may impose such disclosures only when the state satisfies “exacting scrutiny,” which requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest. He described the California law as one that “casts a dragnet for sensitive donor information from tens of thousands of charities each year.” 

However, the Court has upheld some disclosure requirements. In Doe v. Reed (2010), the Court rejected a First Amendment challenge to a Washington law that required the disclosure of petition signers of referendums under the state’s public records law. As in NAACP and Americans for Prosperity, the petition signers argued that the mandated disclosure might subject them to reprisals or harassment. But the Court was not convinced and described the “scant evidence” offered by the petition signers. 

Compelled disclosures and commercial speech

The Supreme Court has been less speech-protective when it comes to compelled disclosures — or what the Court calls “disclaimers” — in the commercial speech context. The Court has defined commercial speech as speech “which does no more than propose a commercial transaction” or is “related solely to the economic interests of the speaker and its audience.” Take the example of a personal injury law firm that advertises about recoveries in litigation in a television or radio ad. The Court in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) upheld a state-mandated disclaimer/disclosure requirement for attorneys when advertising about contingency fees and costs. The Court established that that is constitutional “as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers,” and the required disclosure is “purely factual and noncontroversial” and not unduly burdensome.

Commercial speech: Should it still receive unique constitutional treatment?

Commercial speech — the legal term for advertising — does not receive the same First Amendment protection as political speech.

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In other words, the Court applies exacting scrutiny when it examines state-mandated disclosures involving noncommercial speech. Conversely, the Court applies a commercial speech-specific standard that is somewhat easier for the government to meet when examining compelled disclosures in commercial speech.

Ultimately, the Court’s compelled disclosure jurisprudence reflects an effort to balance legitimate regulatory interests against the core constitutional protections of speech and association. When disclosure requirements threaten to chill civic participation or expose individuals to retaliation, the First Amendment demands exacting scrutiny and narrow tailoring. At the same time, the Court has shown a willingness to permit brief, factual, noncontroversial disclosures in the commercial sphere to prevent consumer deception. The ongoing tension between these lines of reasoning reveals a central constitutional principle: The government may inform, but it may not conscript private speakers or undermine the freedom to associate. As compelled disclosure laws continue to evolve, courts must remain vigilant to ensure that transparency does not come at the expense of fundamental First Amendment freedoms.