Free Speech and Public Health: A Population-Based Approach to the First Amendment

Abstract

Speech is an important determinant of health, especially with respect to the epidemic of childhood obesity. In multiple complex and subtle ways, speech influences the behavior of individuals, cultural norms, public policies, and social relationships, shaping the environment children face, and thereby their health. As a result, public health efforts to ameliorate the obesity epidemic must consider the role of speech, particularly commercial speech aimed at children. Attempts to do so, however, implicate the First Amendment. An overly strict and absolutist view of the First Amendment could hamper government's ability to protect children from a health-impairing speech environment. However, the First Amendment need not be viewed as incompatible with reasonable protections of public health. This article shows what that is so by applying a population-based perspective that recognizes the value of public health protection and concludes that courts can provide significant and robust protection for speech while granting government the room required to protect population health.