American Journal of Law & Medicine

The First Amendment and Public Health, at Odds

"We must not mistake absolutism for principle." Barack Obama, Second Inaugural Address

I. INTRODUCTION

At the turn of the last century, allies of industry on the Supreme Court deployed a novel constitutional doctrine to thwart government regulations aimed at improving public health and safety. During the Lochner v. New York era, the Supreme Court discovered a right to "freedom of contract" in the Due Process Clause of the Fourteenth Amendment that advanced the "economic liberty" of businesses to conduct their affairs without government oversight. (1) The newfound freedom of contract forbade, for example, public policies aimed at improving factory conditions by setting maximum working hours, (2) forbidding child labor, (3) or setting a minimum wage. (4) The Court later somewhat abashedly changed course, finding that government in fact had great leeway to implement economic regulations protecting and promoting general welfare. (5)

Today, seventy-five years after the Supreme Court repudiated the doctrine of economic substantive due process, the Court has backtracked to the notion that the Constitution significantly impedes the government's ability to safeguard public health and safety by regulating commercial activities. The old result has been achieved, however, with a new instrument. Rather than the Fourteenth Amendment and freedom of contract, the Supreme Court has now turned to the First Amendment and freedom of speech.

Business interests and their allies have successfully advanced an interpretation of the Free Speech Clause that elevates product advertising--deemed in this new incarnation "commercial speech"--to a level nearly commensurate with core political, religious, and artistic expression. Traditionally, the First Amendment was invoked to shield individuals who criticized the government or otherwise expressed unpopular views. (6) Commercial advertising received no protection because it was simply considered a species of business activity. (7) The First Amendment had no more to say about advertising regulations than about laws governing workplace hygiene or product safety.

In the 1970s, however, the Supreme Court began to extend moderate First Amendment protection to commercial messages, recognizing consumers' strong interest in information about the price, availability, and characteristics of products and services for sale. (8) Importantly, advertising was accorded a lesser degree of protection than core speech. (9) The Court reasoned that advertising is heartier than core speech, because marketers should be able to verify the accuracy of what they are claiming and because economic self-interest makes it unlikely that even broad regulation will deter advertisers from communicating to potential customers. (10)

Over the course of the past thirty-five years, however, the First Amendment "commercial speech doctrine" has expanded to afford a significantly "heightened" level of protection to advertising. (11) In fact, it has now been eighteen years since the Supreme Court last upheld a law restricting commercial speech. (12) Moreover, the doctrine has shifted focus from the right of consumers to hear commercial information to the right of corporations to express their own viewpoints, regardless of whether the audience benefits. (13) In effect, the commercial speech doctrine has become a means of guaranteeing companies unfettered access to their potential customer base--even when they are peddling products that may lead to illness and early death. (14)

These developments are particularly troubling given what it means for the Supreme Court to afford advertisers a constitutional right to free speech. (15) Not only is there no appeal, there is also, effectively, no way to change the law. The political branches at every level of government--the representatives of the people--are powerless to undo the ruling. (16)

Neither the press nor the public has paid much attention to the revolutionary expansion of corporate speech rights that the enhanced commercial speech doctrine embodies. There has been nothing comparable to the uproar over the Supreme Court's granting corporations broader speech rights in the political campaign arena, as it did in the infamous case Citizens United v. Federal Election Commission. (17) Although some Supreme Court Justices have dissented from the key decisions, citing a litany of health and safety regulations that the expanded doctrine might invalidate, (18) these catalogs have generally been met with no more than passing concern. (19)

It is time--well beyond time--for those who work to protect the health and safety of the American people to develop an understanding of what is at stake. From graphic warning labels on cigarette packages (20) to restrictions on the promotion of untested off-label uses of prescription drugs, (21) a broad range of government initiatives to prevent threats to public health could stand or fall depending on the outcome.

II. FOUR LOOMING PROBLEMS POSED BY THE COMMERCIAL SPEECH DOCTRINE

There are grave problems with the Court's current approach to the protection of commercial speech. This essay highlights four of the most salient for public health. These issues suggest the need to look closely at how consumers actually behave; to question and, if necessary reject, doctrine grounded in abstract theory rather than economic, psychological, and scientific reality; and to reassess the role that government should properly play in regulating the marketplace of commercial communication. …

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