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Indiana Law Journal

Document Type

Article

Publication Date

Fall 2019

Publication Citation

94 Indiana Law Journal 1351 (2019)

Abstract

Post-truthism is widely viewed as a political problem. This Article explores posttruthism as a constitutional law problem, and argues that, because post-truthism offers a normative framework for regulating information, we should take it seriously as a basis for law.

In its exploration of the influence of post-truth ideas on law, the Article focuses on the compelled speech doctrine. When the State mandates disclosure, it pits the interests of unwilling speakers against the interests of listeners. In the twenty-first century, speakers who are targeted by mandatory disclosure laws are often organizational actors with informational advantages, such as corporations. Listeners who stand to benefit from information-forcing laws are mainly information end users such as consumers, investors, and citizens. Often, compelled speech law sets the ground rules for the political conflict between these Information Haves and Information Have-Nots, where it becomes fertile ground for post-truth ideas.

The Article argues that post-truth ideas are particularly potent in courts’ application of the Zauderer doctrine, which governs a subset of disclosure laws. In a common interpretation—one endorsed by the Supreme Court last term in NIFLA v. Becerra—Zauderer provides lax scrutiny to laws that mandate disclosure of “purely factual and uncontroversial” information. As a result, many courts deciding a challenge to a disclosure law evaluate the “controversiality” of the information subject to disclosure. In this approach, “controversial” information—a broad category including information related to a public controversy or debate—enjoys greater protection from information-forcing law than uncontroversial information does. The Article argues that a legal framework that calibrates disclosure law to the controversiality of the underlying information is paradigmatically post-truth. It contends that, ultimately, by increasing protection of “controversial” information from disclosure, the Zauderer doctrine contributes to a post-truth information economy, in which the citizenry’s ability to engage in truth-seeking, self-fulfillment, and self-government is constrained by its lack of legal authority to reduce information asymmetries or to wrest information from Information Haves.

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