7
In commercial speech cases, the government’s burden is
to demonstrate that its speech restriction “directly” advances the
interest it identifies. Central Hudson, 447 U.S. at 566. To this
end, the Supreme Court has required an evidentiary showing that
the regulation advances the government’s interest to a material
extent. See, e.g., Greater New Orleans Broad. Ass’n, Inc. v.
United States, 527 U.S. 173, 188 (1999); 44 Liquormart, 517
U.S. at 505 (plurality); Rubin v. Coors Brewing Co., 514 U.S.
476, 486-90 (1995); Ibanez, 512 U.S. at 142-43; Edenfield v.
Fane, 507 U.S. 761, 770 (1993); cf. Bose Corp. v. Consumers
Union of United States, Inc., 466 U.S. 485, 499 (1984).
7
Government “speculation” or “conjecture” will not suffice.
Ibanez, 512 U.S. at 143 (quoting Edenfield, 507 U.S. at 770).
tax information and comply with the rule; or (3) cease marketing on
the platform altogether. The government addressed this problem at
oral argument by explaining that it was “not aware of the [mediums]
where you only have a choice of one font, but if [airlines] have a
particular problem with the rule as applied in some situation like that
. . . they can make that point with the agency.” Oral Arg. Rec. at
33:31-46. If I understand the point, the onus is on the airlines to
justify same-size disclosures whenever fine print is not an option, and
it is the agency’s prerogative to exempt truthful disclosures from the
rule’s reach. This is completely backwards; supplication and
administrative clemency have no place in the First Amendment. “If
the First Amendment means anything, it means that regulating speech
must be a last – not first – resort.” Thompson, 535 U.S. at 373.
7
In Milavetz, Gallop & Milavetz, P.A. v. United States, 130
S. Ct. 1324, 1340 (2010), a commercial speech case dealing with the
constitutionality of a federal statute, the Court accepted as evidence
material in the congressional record and stated that it was self-evident
that the advertisements at issue were misleading. Milavetz has no
bearing on the relevant portion of the tax and fee rule. The opinion
dealt with the requirement of disclosure. Id. at 1339; Maj. Op. at 12-
13. The issue I am addressing deals with suppression of speech.