Is Public Health and the First Amendment At Odds with Each Other

An interesting article appears in the vol. 2 and 3. edition of the American Journal of Law and Medicine in 2013 titled “The First Amendment and Public Health, at Odds,” by Seth Mermin and Samantha Graff. The article talks about how the interpretation of freedom of speech in the First Amendment has, in recent years, been altered to benefit corporations. Usually when one thinks of the First Amendment they think of protecting individual’s rights to express their opinions and thoughts. The authors essentially state that with recent changes in the interpretation of the law now companies can push products without much regard to their effect on the health of their customers.

The authors state

“There has been nothing comparable to an uproar over the Supreme Court’s granting…in the infamous Citizens United versus Federal Election Commission. It is time – well beyond time – … to develop an understanding of what is at stake…a broad range of government initiatives to prevent threats to public health could stand or fall depending on the outcome.”

The authors in the article go on to discuss 4 problems they see with the so called commercial speech doctrine.

1. The Myth of the Rational Consumer

The authors point out that recent research in behavioral economics and psychology suggests humans are irrational economic actors. The authors state that much of the information involved in advertising does not allow for rational decisions to be made even if they could be made. Hence the authors suggest that some consumers are being manipulated into buying products counter to their health. (Note that I have talked about this before as it relates to the decision to remove or not remove healthy wisdom teeth, see here

2. The vulnerability of Children and Adolescents

The authors describe how the current Commercial Speech Doctrine provides no constitutional protection for information that is false or misleading. This is particularly problematic for children. The authors state

“An extensive body of scientific literature confirms that children up to the age of twelve are generally unable to handle the bias and self-interest of advertising messages and then to apply that understanding…”

The authors also address how adolescents are particularly vulnerable to some types of marketing and that various industries exploit this. (Note I have previously raised this point and pointed out some studies in the blog post Let’s Give our Kids a Chance to Succeed)

3. Evidentiary Hurdles

The authors point out how an evaluation has taken place as to whether a speech restrictive measure taken by the government is useful. The issue at hand is that a governmental agency needs to have evidence that a particular warning on some product causes less harm then before implementing such a warning. However, as discussed later by the authors their are limits on scientific evidence even with double blind studies.

4. The Expanding Scope of Free Speech

The authors point out a few illustrative cases. The first case is that a tobacco companies ability to distribute free samples does not fall under an act of commerce  but as an expressive activity and commercial speech. The second case is that a database containing a record of prescriptions is considered a form of protected communication and hence information is speech.

The article goes on to suggest some brief call to actions for each of the 4 points and provides some more examples. I think the issues in the paper raised are important to understand and don’t get that much play and discussion in the media.

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