The First Amendment and Regulatory Responses to Workplace Sexual Misconduct: Clarifying the Treatment of Compelled Disclosure Regimes
In response to revelations about the pervasiveness of workplace sexual misconduct, legislators have proposed a variety of regulatory solutions. Among those responses are proposals to require companies to disclose information related to the settlement of sexual misconduct allegations made by employees. This proposal merits special attention because it conceivably compels speech, making it vulnerable to a First Amendment challenge. While such a claim appears surprising, recent developments in First Amendment law have taken the idea from laughable to plausible. This Note situates the proposals in light of recent First Amendment challenges to compelled disclosure regimes, using the proposals as a lens to examine how courts have addressed such challenges. The analysis demonstrates the need for greater clarity in the treatment of information-forcing regulations. A suggested approach is for courts to explicitly recognize regulatory exceptions to compelled speech claims when the compelled speech is only incidental to the broader purpose of the regulation.