Emotional Compelled Disclosures

Abstract

This short Essay is a response to Rebecca Tushnet’s More Than a Feeling: Emotion and the First Amendment, 127 Harvard Law Review 2392 (2014), which argues that emotional compelled disclosures -- whether they be graphic cigarette warnings depicting the gruesome consequences of smoking or abortion counseling detailing the state’s moral view on abortion -- are fine as long as they are accurate and nonmisleading. After agreeing that emotion and reason are inextricably linked, and therefore government compelled disclosures that provoke emotional responses are not automatically suspect, the essay discusses some of the limits of Tushnet’s thesis. First, it defines deception too narrowly and overlooks that you can deceive and mislead with emotion as well as with facts. Second, if deceptive compelled speech triggers concern because it fails to respect the autonomy of its audience, then the government’s goals, and not just its means, merit examination. Finally, a complete analysis of compelled disclosures must also consider the autonomy of the compelled speaker. Nonetheless, the Essay concludes that Tushnet’s insistence that we recalibrate our skepticism to focus more on deception and less on emotion might have prevented one of the most puzzling aspects of these compelled speech cases, which is the way the courts have transformed the facts of smoking into ideology, and the ideology of abortion into facts.

Keywords: speech, compelled speech, first amendment, heuristics, emotion, tobacco, abortion, reproductive rights