Cite as: 603 U. S. ____ (2024)
3
THOMAS, J., concurring in judgment
11. In that case, the Court held that laws requiring the disclosure of factual information in commercial advertising
may satisfy the First Amendment if the disclosures are
“reasonably related” to the Government’s interest in preventing consumer deception. 471 U. S., at 651. Because the
trade associations did not contest Zauderer’s applicability
before the Eleventh Circuit and both lower courts applied
its framework, I agree with the Court’s decision to rely upon
Zauderer at this stage. However, I think we should reconsider Zauderer and its progeny. “I am skeptical of the premise on which Zauderer rests—that, in the commercialspeech context, the First Amendment interests implicated
by disclosure requirements are substantially weaker than
those at stake when speech is actually suppressed.” Milavetz, Gallop & Milavetz, P. A. v. United States, 559 U. S.
229, 255 (2010) (THOMAS, J., concurring in part and concurring in judgment) (internal quotation marks omitted).
Second, the common-carrier doctrine should continue to
guide the lower courts’ examination of the trade associations’ claims on remand. See post, at 18, and n. 17, 30 (opinion of ALITO, J.). “[O]ur legal system and its British predecessor have long subjected certain businesses, known as
common carriers, to special regulations, including a general
requirement to serve all comers.” Biden v. Knight First
Amendment Institute at Columbia Univ., 593 U. S. ___, ___
(2021) (THOMAS, J., concurring in grant of certiorari) (slip
op., at 3). Moreover, “there is clear historical precedent for
regulating transportation and communications networks in
a similar manner as traditional common carriers” given
their many similarities. Id., at ___ (slip op., at 5). Though
they reached different conclusions, both the Fifth Circuit
and the Eleventh Circuit appropriately strove to apply the
common-carrier doctrine in assessing the constitutionality
of H. B. 20 and S. B. 7072 respectively. See 49 F. 4th 439,
469–480 (CA5 2022); NetChoice v. Attorney Gen., Fla., 34
F. 4th 1196, 1219–1222 (CA11 2022).