When one sells a poison he is not in a position to refuse public health mandates spelling out the consequences of the toxin. Unless you are in the United States living under the rule of the Scalia-Roberts gang. Then you can observe the First Amendment as a cudgel impairing public health. - gwc
Balkinization:
by Jack Balkin
This weekend the Yale Law School, Medical School and Public Health School will co-host a conference on Public Health in the Shadow of the First Amendment. This week Balkinization will feature posts from several of the participants. Here is the conference description: Public Health in the Shadow of the First Amendment will bring together leading scholars, key policy makers, and top experts in law, public health and medicine.
This conference, the first of its kind, will investigate a broad range of complex constitutional issues raised at the intersection of medicine, public health, and the First Amendment. The regulation of food, medicines, and tobacco all rely crucially today on the regulation of speech, for example through behavioral marketing, disclosures, and restrictions on certain modes of commercial promotion.
First Amendment doctrine has recently changed in significant ways, bringing it into potentially deep tension with such measures. For example, commercial speech doctrine has been used to invalidate FDA restrictions on off-label marketing of drugs, to prevent graphic warnings on cigarette packages, and to challenge calorie disclosures in restaurants.
In addition, new and important questions about the limits of a legislature’s ability to mandate or forbid certain physician speech are emerging. For example, should the First Amendment protect doctors from requirements that they provide patients with ultrasounds or medically unproven “information” in the abortion context, or mental health providers from restrictions on conducting reparative therapy for gay teens?
In cases such as these, courts and legislatures are also increasingly required to adjudicate questions of scientific merit. Many recent examples suggest reason for concern about the results. Neither courts nor scholars have developed a consistent and coherent approach to these different areas. Experts in First Amendment law are rarely in a position to fully articulate the health consequences of these cases, and health experts rarely have the literacy in free speech law required to navigate these issues. This conference will investigate these enormously important issues, with panels on food and drug regulation, behavioral marketing in the context of obesity, tobacco, and food policy, the regulation of professional conduct, First Amendment theory, and the intersection between science and democracy."
Balkinization:
by Jack Balkin
This weekend the Yale Law School, Medical School and Public Health School will co-host a conference on Public Health in the Shadow of the First Amendment. This week Balkinization will feature posts from several of the participants. Here is the conference description: Public Health in the Shadow of the First Amendment will bring together leading scholars, key policy makers, and top experts in law, public health and medicine.
This conference, the first of its kind, will investigate a broad range of complex constitutional issues raised at the intersection of medicine, public health, and the First Amendment. The regulation of food, medicines, and tobacco all rely crucially today on the regulation of speech, for example through behavioral marketing, disclosures, and restrictions on certain modes of commercial promotion.
First Amendment doctrine has recently changed in significant ways, bringing it into potentially deep tension with such measures. For example, commercial speech doctrine has been used to invalidate FDA restrictions on off-label marketing of drugs, to prevent graphic warnings on cigarette packages, and to challenge calorie disclosures in restaurants.
In addition, new and important questions about the limits of a legislature’s ability to mandate or forbid certain physician speech are emerging. For example, should the First Amendment protect doctors from requirements that they provide patients with ultrasounds or medically unproven “information” in the abortion context, or mental health providers from restrictions on conducting reparative therapy for gay teens?
In cases such as these, courts and legislatures are also increasingly required to adjudicate questions of scientific merit. Many recent examples suggest reason for concern about the results. Neither courts nor scholars have developed a consistent and coherent approach to these different areas. Experts in First Amendment law are rarely in a position to fully articulate the health consequences of these cases, and health experts rarely have the literacy in free speech law required to navigate these issues. This conference will investigate these enormously important issues, with panels on food and drug regulation, behavioral marketing in the context of obesity, tobacco, and food policy, the regulation of professional conduct, First Amendment theory, and the intersection between science and democracy."
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