Free Speech and Public Health: Unraveling the Commercial-Professional Speech Paradox

Abstract

Public health advocates have puzzled in recent years over an apparent paradox. Commercial speech with a significant potential to harm health, such as tobacco marketing, appears to receive more robust protection under the First Amendment than speech of health care professionals that aims to protect patient health. This Article explores this paradox and makes two related arguments: first, the paradox may be resolving as courts are moving, with some exceptions, towards an approach that treats both commercial and professional speech related to health in a similar manner; and second, speech's impact on health should be a crucial aspect of the inquiry into when the regulation of speech affecting health violates the First Amendment. The paper begins by reviewing the evolution of the commercial speech and professional speech doctrines, as they are applied to cases relating to health. The paper then examines First Amendment theory, especially regarding commercial and professional speech, and concludes that the scope of First Amendment protection for such speech is bounded by the goals that underlie the speech clause, including the preservation of autonomy and self-governance. The article then argues that the protection of health is an additional constitutional norm that is closely related to and supportive of both autonomy and self-governance. This leads us to argue that the regulation of health-related speech, be it commercial or professional, should be subjected to a nuanced form of intermediate scrutiny in which the health-impact of the speech matters. The paper concludes by exploring what that means and considering some of the limitations and objections to our approach.

Keywords: public health, commercial speech, First Amendment