“The Eleventh and Fifth Circuits’ applying Zauderer continues a trend of lower courts ignoring Supreme Court precedent.”
—John Masslon, WLF Senior Litigation Counsel

Click here for WLF’s brief.

WASHINGTON, DC— Washington Legal Foundation (WLF) today filed an amicus curiae brief urging the U.S. Supreme Court to strike down the individualized-explanation requirements in Florida Senate Bill 7072 and Texas House Bill 20.

Rather than apply strict or even intermediate scrutiny to these compelled speech provisions, the Fifth and Eleventh Circuits applied the relaxed undue burden standard in Zauderer v. Office of Disciplinary Counsel. As WLF’s brief explains, these decisions made four fundamental errors when they applied Zauderer here. Any one of those errors alone would be enough to apply strict or intermediate scrutiny.

First, Zauderer cannot be applied to statutes that compel speech outside the context of advertising. Second, Zauderer cannot be applied to statutes that compel speech on controversial topics. Third, Zauderer does not govern when a compelled commercial speech requirement seeks to promote consumer welfare in general instead of seeking to correct a commercial entity’s false or deceptive statements. Finally, Zauderer cannot be applied to necessarily subjective regulations. WLF’s brief also highlights the fact that H.B. 20 and S.B. 7072 are not-so-veiled attempts at regulating the content of political speech. The Supreme Court should not allow such regulations to stand. Rather, it should apply the correct test and strike down the individualized-explanation requirements.