108 Iowa L. Rev. Online 80 (2023)



A 1985 Supreme Court opinion, Zauderer v. Office of Disciplinary Counsel, holds a key to the Internet’s future. Zauderer provides a relaxed level of scrutiny for constitutional challenges to some compelled commercial speech disclosure laws. Regulators throughout the country are adopting “transparency” laws to force Internet services to disclose information about their editorial operations or decisions when they publish third-party content, based on their assumption that Zauderer permits such compelled disclosures. This Essay explains why these transparency laws do not qualify for Zauderer’s relaxed scrutiny. Instead, given the inevitably censorial consequences of enacting and enforcing compelled editorial transparency laws, they should typically trigger strict scrutiny—just like outright speech restrictions do.

Wednesday, April 19, 2023