American Journal of Law & Medicine

The commercial speech doctrine in health regulation: the clash between the public interest in a robust First Amendment and the public interest in effective protection from harm.


Historically, government has been given more leeway when invoking its interests in safeguarding the public health than when asserting other state interests. Thus, for example, when considering a constitutional challenge to mandatory smallpox immunization in Jacobson v. Massachusetts, the Supreme Court employed its highly deferential, rational basis review rather than the stricter level of scrutiny that it normally employs when individuals assert interests in bodily integrity. (1) Similarly, Congress and the Food and Drug Administration (FDA) have imposed greater restrictions on the speech of pharmaceutical companies than have been considered acceptable for speech in other commercial settings.

In recent years, however, it appears that a trend is developing toward applying the same level of constitutional scrutiny to health regulation. In Abigail Alliance, a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit overrode FDA regulations to recognize a constitutional right of access for patients to experimental chemotherapy. (2) In Western States, the U.S. Supreme Court struck down advertising restrictions imposed on pharmacies by Congress. (3)

To some extent, it makes sense to treat health regulation more like other kinds of regulation. Government may be too quick to sacrifice individual liberty when threats to health loom. However, courts may be overcompensating in their efforts to right the balance between individual liberties and the public's interest in good health.

In this article, I consider the balance between liberty and health in the context of the right to speak. More specifically, I examine the commercial speech doctrine and suggest how courts should draw the balance between state interests in public health and corporate interests in promotional speech. I argue that there are two important doctrines for retaining some special treatment of public health concerns. First, rather than following the Jacobson principle of deference to legislative judgment, courts should follow the principle of deference to the judgment of public health officials that was enunciated in School Board of Nassau County v. Arline. (4) Second, courts should invoke the principle of trust and its concomitant duty of loyalty to adequately recognize the interests of individuals in not having their relationships with physicians, pharmacists, and other health care providers exploited for the providers' personal gain.


For much of the twentieth century, the Supreme Court treated health care matters differently than issues arising in other industries or settings. When private or public actors invoked health concerns to justify their conduct, the Court often expressed less skepticism than when other reasons were invoked for public or private conduct. (5) Thus, for example, for many years the Court did not apply antitrust law against health care providers as aggressively as it did against individuals or companies in other businesses, until it changed course in the 1970s. (6)

While the special status of health care has influenced doctrine in a number of legal fields, including tort and contracts law, this article focuses on its special status in constitutional law. More specifically, this article focuses on the special status of public health justifications in constitutional law. After describing the Supreme Court's historic principle of deference when governments invoked health concerns, the article describes a current trend toward treating health concerns like other state interests.


The Supreme Court's jurisprudence in matters of public health dates back to its 1905 opinion in Jacobson v. Commonwealth of Massachusetts. (7) In that case, Henning Jacobson objected to a local regulation that required him to receive a smallpox vaccination. (8) The regulation was authorized under a state statute, and the Court considered the constitutionality of the statute. (9)

What is striking about the Court's opinion is its broad deference to the judgment of the state legislature. According to the Court, the Constitution was not offended by the statute because it did not represent an "unusual, ... unreasonable or arbitrary requirement." (10) It did not go "far beyond what was reasonably required for the safety of the public," (11) nor did it lack a "real" relationship with the public health interests at stake. (12)

Of course, the Court rarely strikes down a statute when it requires only that the law not be unreasonable or arbitrary. This is the language of rational basis review, language that the Court invokes when it is not receptive to an individual's interest in escaping the reach of a law. Indeed, while the Court referred to Mr. Jacobson's interests in exercising free will, caring for his body, and controlling his body, (13) the Court did not suggest that the interests had special importance. (14) This oversight cannot be explained by the fact that the case was decided well before the Supreme Court began to develop its fundamental rights doctrine in the 1960s and 1970s. Just fourteen years before Jacobson, in Union Pacific Railway Co. v. Botsford, the Court wrote that "[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person." (15)

Jacobson's principle of deference to government officials on matters of public health lived on for decades. Thus, in the 1992 Adams ease, when prostitutes challenged a state statute that required them to be tested for HIV- infection, the Illinois Supreme Court cited Jacobson for the proposition that "the States have been allowed broad discretion in the formulation of measures designed to protect and promote public health." (16) The Illinois court saw no fundamental rights being implicated by the forced testing and required only that the statute bear "a rational relationship" to the state's public health goals. (17) Because the court employed rational basis review, it could uphold the statute even though medical experts testified that the testing policy was ineffective and possibly counterproductive to the protection of the public's health. (18) In short, the Justices in Jacobson and Adams allowed legislative officials broad discretion in shaping public health policy.

Or consider the U.S. Supreme Court's decision in Whalen v. Roe. (19) In that case, the Court reviewed a challenge to a New York law that provided for a computerized database to track drug prescriptions for controlled substances. (20) In deciding whether the state's interest in limiting problems with drug abuse could justify the invasion of patient privacy, the Court observed that "States have broad latitude in experimenting with possible solutions" and that the statute was the "product of an orderly and rational legislative decision." (21)


In recent years, however, the Supreme Court and lower federal courts have demonstrated a greater willingness to challenge the public health justifications that governments advance to justify their limitations on individual liberties.


Abigail Alliance involved a claim that terminally ill adult patients should be able to purchase experimental drugs that had not yet been approved for sale by the FDA, once the patients had exhausted all other FDA-approved treatment options. (22)

Under long-standing FDA policy, pharmaceutical companies need to test new drugs in successive research trials and submit the data from the studies to the FDA for approval of the drugs. …

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