American Journal of Law & Medicine

When the First Amendment and Public Health Collide: The Court's Increasingly Strict Constitutional Scrutiny of Health Regulations That Restrict Commercial Speech

CONTENTS
  I. INTRODUCTION
 II. A HISTORY OF CENTRAL HUDSON AND THE COURT'S TREATMENT OF
     PUBLIC HEALTH REGULATIONS THAT INTERFERE WITH
     COMMERCIAL SPEECH
     A. The Origins of the Commercial Speech Doctrine
     B. Central Hudson as Applied to Public Health Regulations and the
     Move Toward a Strict Scrutiny Analysis
     C. Courts' Treatment of Public Health Regulations that
     Compel Speech
III. THE CURRENT CENTRAL HUDSON TEST ESSENTIALLY LOOKS LIKE
     STRICT SCRUTINY WHEN APPLIED TO PUBLIC HEALTH REGULATIONS
     A. In Public Health Commercial Speech Cases, the First and
        Second Prongs of the Central Hudson Test Are
        Typically Irrelevant
     B. Central Hudson Is a Least-Restrictive Means Test in Practice
     C. The Court Demands the Same Level of Scrutiny from Public
        Health Regulations as in Regular First Amendment Cases
 IV. IMPLICATIONS OF APPLYING CENTRAL HUDSON AS A STRICT
     SCRUTINY STANDARD
     A. A Strict Scrutiny Interpretation of Central Hudson Might
        Not be Suitable for All Public Health Regulations of
        Commercial Speech
     B. The Jurisprudential Merits of an Intermediate
        Standard of Review
     C. The Policy Justification for an Intermediate
        Standard of Review
  V. CONCLUSION

I. INTRODUCTION

In Sorrell v. IMS Health Inc., (1) the Supreme Court departed from traditional commercial speech doctrine in striking down Vermont's Prescription Confidentiality Law under a heightened level of scrutiny. (2) The Prescription Confidentiality Law was Vermont's attempt to prevent pharmacies from sharing information about doctors' prescribing habits with drug manufacturers without the consent of the doctor. The law aimed to protect doctors, as well as to promote public health, by regulating speech and conduct that is arguably commercial in nature. The Court has purported to subject regulation of commercial speech to only an intermediate level of scrutiny since Virginia State Board of Pharmacy v. Virginia Citizen's Consumer Council, Inc. (3) established that as the proper standard. (4) Thus, it was inconsistent for the Court to categorize the commercial speech regulation in Sorrell as "content-based" and thus subject to a stricter level of review. (5) The invalidation of the Prescription Confidentiality Law, however, is only the most recent development in the Court's strict treatment of health-related regulations infringing on commercial speech. The Court has been moving toward a more stringent level of scrutiny since first applying the commercial speech doctrine in a public health context in Rubin v. Coors. (6)

In Virginia State Board of Pharmacy, the Court supported more relaxed regulation of commercial speech, recognizing that "society ... may have a strong interest in the free flow of commercial information." (7) At the same time, the Court noted from the beginning of its commercial speech jurisprudence that "[s]ome forms of commercial speech regulation are surely permissible." (8) The Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (9) test for commercial speech thus was an intermediate standard of scrutiny. (10) The Court in Central Hudson developed its four-prong test with the intention that commercial speech should receive less constitutional protection than other protected forms of expression. (11)

Despite the conceptualization of Central Hudson as an intermediate standard, when examining public health regulations, the Court has been increasingly strict in its level of scrutiny. Public health regulations subjected to the Central Hudson analysis are almost always invalidated. (12) Although the government has attempted to more narrowly tailor its legislative means to substantial interests, the Court consistently fails to find that even the more narrowly-tailored regulations can satisfy the increasingly stringent Central Hudson standard.

This Note will show that almost all public health regulations that attempt to restrict speech are invalidated under Central Hudson and argue that the Court actually applies a strict scrutiny analysis when evaluating commercial speech regulations related to public health. This Note will go on to question whether this shift to strict scrutiny is appropriate and consider the Court's significantly less stringent treatment of public health regulations that mandate disclosure.

Part II will examine the origins of the commercial speech doctrine, particularly the Central Hudson four-prong test. Part II.A will provide an overview of the commercial speech doctrine's origins, and Part II.B will detail the history of public health regulations that the Court has invalidated under a Central Hudson analysis. Part II.C will briefly explain courts' rational basis treatment of public health disclosure requirements. Part III will expand upon how the Court has essentially implemented the Central Hudson test as a strict scrutiny standard for public health regulations.

Finally, Part IV will discuss the implications of a strict scrutiny standard for public health regulations that impinge upon commercial speech. Part IV.A will question whether strict scrutiny is appropriate for all types of public health regulations. Part IV.B will then focus on the jurisprudential reasons for having an intermediate standard of review. Part IV.C will discuss the policy justification for having an intermediate standard and suggest that a lack of an intermediate standard may cause the government to be more inclined to regulate public health through disclosure requirements. Part IV.C will also emphasize that it is unclear whether the Court will treat certain health regulations as mere disclosure requirements or as restrictions of commercial speech, subject to strict scrutiny.

II. A HISTORY OF CENTRAL HUDSON AND THE COURT'S TREATMENT OF PUBLIC HEALTH REGULATIONS THAT INTERFERE WITH COMMERCIAL SPEECH

When considering noncommercial protected speech in First Amendment cases, the Court generally applies a stringent strict scrutiny analysis. Under a typical First Amendment strict scrutiny analysis, a law "is invalid unless [the government] can demonstrate that ... it is justified by a compelling government interest and is narrowly tailored to serve that interest." (13) Strict scrutiny analysis is necessary to guard the First Amendment right to free speech.

While the Court has not always taken this position, it is now well-established that the First Amendment protects commercial speech. (14) Commercial speech, however, is subject to the Central Hudson standard, a standard purportedly less stringent than traditional strict scrutiny review. A lesser standard is allegedly justified because commercial speech, which is made for a business purpose, does not necessarily implicate the political and creative freedom typically thought to be at the core of First Amendment doctrine. (15) Commentators have been quick to criticize the ambiguous Central Hudson standard itself, as well as the Court's inconsistent application of the test. (16) Certain critics of Central Hudson have vehemently argued that granting full First Amendment protection to commercial speech would be more appropriate than continuing attempts to apply an unclear, lesser level of protection to commercial speech. (17) As this Note will examine, this is precisely the direction that the Court seems to have been headed for years, at least with regard to public health regulations. Leading up to the Sorrell decision, the Court has continued to strike down commercial speech regulations under what increasingly has looked like a strict scrutiny standard. Now, more recent commentators have suggested that the Court may have gone too far in extending a heightened scrutiny standard in Sorrell, raising the question of how this development will affect the Court's treatment of future public health regulations that interfere with commercial speech. (18)

A. THE ORIGINS OF THE COMMERCIAL SPEECH DOCTRINE

In Virginia State Board of Pharmacy, the Court first held that the First Amendment protects speech that "does no more than propose a commercial transaction." (19) Virginia State Board of Pharmacy involved a Virginia statute that banned the advertisement of prescription drug prices. The suit was brought by consumers of prescription drugs who argued that they had an interest in the prohibited information. (20) The Board of Pharmacy contended that price advertising would result in aggressive price competition and would jeopardize the expertise of pharmacists and the health of consumers. (21) The Board further asserted that advertisements of prescription drugs fell outside of First Amendment protection. (22) Despite this, Justice Blackmun's majority opinion held that commercial speech is not "so removed from any 'exposition of ideas,' and from 'truth, science, morality, and arts in general' ... that it lacks all protection." (23) Blackmun also recognized a general societal interest in the free flow of information, noting that consumers have the right to be well-informed when making decisions about how to allocate their resources. (24) Therefore, First Amendment protection of commercial speech has always been partly justified for its protection of consumer education and free choice. Blackmun also acknowledged that some forms of commercial speech regulation can still be valid, including "mere time, place, and manner restriction[s]" and prohibitions of false or misleading speech. (25)

Four years after Virginia State Board of Pharmacy, Central Hudson officially established an intermediate test for the regulation of commercial speech. The Court in Central Hudson acknowledged that "[t]he Constitution ... affords a lesser protection to commercial speech than to other constitutionally guaranteed expression" and established the four-part test still used to determine whether a regulation of commercial speech violates the First Amendment. (26) Under the Central Hudson test, (1) commercial speech must concern lawful activity and not be misleading in order to be protected, and (2) the asserted government interest must be substantial. (27) If the first two prongs are satisfied, then the Court moves on to ensure that (3) the means identified by the state directly advance the government interest asserted, and (4) the means are not more extensive than necessary to serve the substantial government interest. (28)

The regulation before the Court in Central Hudson was an absolute ban on promotional advertising by an electric utility. The Court found that the government had a substantial interest in energy conservation and that the regulation directly addressed this interest, since there is a link between promotions and demand for energy. (29) The regulation, however, was struck down at the fourth step of the test as over-inclusive. (30) Because the absolute ban could affect advertising that is unrelated to overall energy use, the regulation was more extensive than necessary. (31) The holding of Central Hudson makes sense in relation to Virginia State Board of Pharmacy's concerns about consumer free choice. As Justice Blackmun noted previously, commercial speech can have the important purpose of communicating information about a product to consumers. If upheld, the regulation in Central Hudson would have kept the public from being fully informed energy consumers.

B. CENTRAL HUDSON AS APPLIED TO PUBLIC HEALTH REGULATIONS AND THE MOVE TOWARD A STRICT SCRUTINY ANALYSIS

Despite its origins as an intermediate standard of review, the Court has moved toward a stricter interpretation of Central Hudson when relying upon the standard to strike down public health regulations. Public health regulations, which have become subject to a Central Hudson analysis, have been consistently invalidated. The first time the Court applied Central Hudson to strike down a public health regulation was in Rubin v. Coors. (32) In Rubin, the Court invalidated section 5(e)(2) of the Federal Alcohol Administration Act. (33) Section 5(e)(2) prohibited beer labels from displaying alcohol content. (34) The government argued that the ban was necessary to prevent brewers from competing in "strength wars" over the potency of their beer. (35) Although the Court recognized that the government had a sufficiently substantial interest in protecting the "health, safety, and welfare of its citizens," the Court held that the prohibition did not satisfy Central Hudson's third prong of directly advancing that significant interest. (36) Justice Thomas explained that the ban was irrational and under-inclusive, focusing on how it applied only to labels and not the advertising of alcohol content in general. (37) Thomas went on to assert that the ban was also over-inclusive, explaining that there were less speech-restrictive alternatives, such as directly limiting the alcohol content of beers. (38)

The next year, the same Court struck down a Rhode Island ban on all advertising of liquor prices under Central Hudson prongs three and four. …

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