Consumer Law

The meaning of mandatory disclosures

By Rebecca Tushnet

Robert Post writes at Balkinization about state attempts to determine the meaning of words, herein of abortion. I agree with him about the constitutionality, and the wisdom, of the laws he discusses that require doctors to ?disclose? specific biased information and moral conclusions. I?m most interested in this portion of his argument:

Gruender [the author of the majority opinion in the Eighth Circuit en banc case Post is discussing] apparently believes that the meaning of what the state requires a person to say is to be determined by the very government that is mandating a person to speak. That is Orwellian. It denudes the First Amendment of independent significance. If South Dakota passes a statute requiring Gruender to affirm that the ?holy trinity? exists, and if the statute defines the ?holy trinity? as the three atoms making up water molecules, Greunder would seemingly have no cause for complaint.

The implications of Gruender?s opinion are breathtaking. Statutory definitions control the meaning of statutes, which is to say that they control what those who are obligated to obey statutes must and must not do. But statutory definitions do not and cannot control the meaning of what statutes require persons to say. In virtually every legal context, the meaning of a person?s words are determined by reference to how they are understood by a reasonable auditor. Think in this context of the law of defamation or the law of the Lanham Act.

There are certainly some advertising law cases that point in this direction. But there are others that don?t, and plenty of laws that purports to define terms for commercial purposes: miles per gallon, organic, dolphin-free, made in America, etc. Most of them have never been challenged on the grounds that the definitions don?t correspond to preexisting reasonable understandings. I?ve written about this question before.

An initial question for Post is whether he means to limit his claim about what government can define to cases in which there is an identifiable preexisting or competing understanding of the term at issue. If consumers have no particular definition in mind when they hear ?organic,? but they think it means something (and in that situation, when surveyed, they?re likely to make up a lot of different definitions, so surveys are going to be particularly unreliable), is it okay for the government to specify the meaning?

A related question: how are we going to determine what reasonable listeners understand? Post mentions both defamation and the Lanham Act, but those bodies of law have starkly different approaches. The former relies on judges and juries, using their unconstrained intuitions. The latter relies on multifactor circumstantial tests, and occasionally on evidence from actual consumers. Deciding which is better is an exercise left for the reader (and I?m totally serious about this: multifactor tests and consumer surveys have serious weaknesses); in the abortion context, Post seems to be using a defamation model, where we use our common sense to determine what a reasonable listener would hear.

Full post as published by 43(B)log on September 09, 2008 (boomark / email).