an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
“Same As It Ever Was”?: The Definition of Marriage in Puerto Rico
On October 21, Judge Juan M. Pérez-Giménez, a federal district court judge in the District of Puerto Rico, made headlines by granting the Commonwealth of Puerto Rico’s motion to dismiss in Conde-Vidal v. Garcia-Padilla, a federal constitutional challenge brought by four same-sex couples to Article 68 of Puerto Rico’s Civil Code, which defines marriage as “originating in a civil contract whereby a man and woman mutually agree to become husband and wife. . . ” Understandably, news stories and legal commentary about this case highlight the court’s consciously departing from other post-Windsor federal courts to rule that Baker v. Nelson (1972) required it to dismiss plaintiffs’ case, given that, in 2012, the First Circuit observed, in striking down DOMA on Equal Protection grounds, that it was neither “empowered” to imply that the Supreme Court’s precedents since Baker implied Baker’s overruling nor “willing to predict” the Court would overrule Baker. Nonetheless, another feature that warrants comment is the district court’s appeal to the Civil Code’s “long-standing definition of marriage, stretching against two legal traditions” – Spanish and United States – to rule out “animus” and show a clear, coherent, and consistent policy that marriage is between one man and one woman. The law of marriage, however, has been far from “consistent,” as the changing versions of the Civil Code illustrate. Instead, that evolution well illustrates marriage’s trajectory from (as Ninth Circuit Judge Marsha Berzon put it in her recent concurrence in Latta v. Otter ) “a profoundly unequal institution [that] imposed distinctively different rights and obligations on men and women” to a more “genderless” relationship of mutuality and equality. Read more » Posted
by Linda McClain [link]
Saturday, October 18, 2014
Keynote Address: Public Health in the Shadow of the First Amendment
[The following is the text of the Keynote Address for the Conference on Public Health in the Shadow of the First Amendment, delivered at Yale Law School on October 18, 2014, byJoshua M. Sharfstein, M.D., Secretary, Maryland Department of Health and Mental Hygiene]
Thank you for inviting me to speak at this important and timely
conference. As a pediatrician and state public health official, I especially
appreciate the chance to talk with you today.
I’d like to start by setting expectations.
My legal training is limited to two courses in health law and an
introductory class in administrative law…which I audited.
So I am not angling for an honorary degree ... as much as I might like
to show it to my brother, who did graduate from here and now teaches at
Vanderbilt Law School.
Instead, I will speak from my judgment and experience.
Before I get into the substance of the topic, however, and as the only
public health doctor speaking at this conference, I would like to clear the air
of a misconception about people who work in my field ... specifically, that we
are dour and humorless killjoys.
I recently spoke to public health graduates who had just earned their
degrees in one of the many diverse fields, including epidemiology,
environmental health science, laboratory investigation and immunology.
I had to remind them that each had passed the core curriculum.
Public Health 101 -- How to take all the pleasure out of eating and
Public Health 201 -- How to turn a conversation on any topic into a
discussion of antibiotic resistant sexually transmitted disease.
And Public.Health 301 -- How to take all the pleasure out of eating and
drinking … by talking about antibiotic resistant sexually transmitted disease.
The truth is that public health is a field full
of people who enjoy life. Our premise is that the well-being of individuals,
families, and communities has fundamental moral value. When people are healthy,
they are productive, creative, and caring. They spend time with their friends and
families, they strengthen their neighborhoods, and they help others in need.
In short, they get to live their lives.
When I think of who works in public health, I do not picture nanny-like
functionaries sitting in cubicles.
Rather, I have in mind Dr. Albert Sommer, the ophthalmologist from my
neighborhood in Baltimore who recognized that Vitamin A deficiency causes not
only blindness but also early death among children in the developing world.
This insight was proven through extensive clinical investigation in the field.
Dr. Sommer’s work has saved millions of lives.
As a public health official in this country, my job has operated at a
different scale. But the premise is the same -- to use tools of science to
identify ways to reduce suffering and improve health.
In Baltimore, for example, after we identified a large number of babies
dying in unsafe sleeping conditions … we designed and implemented a campaign to
address the problem.
Working with experts in behavior change and communications at the Johns
Hopkins Bloomberg School of Public Health, the city developed hard-hitting
advertisements in which parents who lost babies to unsafe sleep told their
stories. We showed these videos across the city, including in jury rooms, and
in social services offices.
Safe sleeping increased, unsafe sleep deaths declined, and now more
children in our city get to live their lives.
In this context, I would like to share my concern that recent court
decisions involving the First Amendment are undermining the health and
well-being of the American people.
The issues under discussion at this conference are not abstract
questions of law; they are matters of life and death.
About 25 years ago, the Institute of Medicine defined public health as
“what we, as a society, do collectively to assure the conditions for people to
I would like to discuss several “conditions for people to be healthy”
that recent court decisions have put at risk … as a result of an ideology that
gives tremendous weight to commercial speech but provides little deference to
professional speech and public health expertise.
Ted Mermin For the conference on Public Health in the Shadow of the First Amendment Public health and government have what supermarket tabloids
refer to as a “complicated relationship.” One of the reasons for the complexity is that government
has a habit of governing idealized persons, while the people being governed
have an equally strong tendency to behave in ways that are not ideal. It does not take Dr. Phil – or, to advert to a
greater sage of an earlier era – Dr. Ruth to figure out that this is not a
recipe for a successful partnership.
To illustrate: The story of HIV/AIDS prevention in this
country is a morality tale. That is, government
efforts to reduce new infections have from the outset involved considerations other
than the basic public health directive of saving lives. For years, abstinence and monogamy – and
avoiding intravenous drug use – were the primary preventive measures that the federal
government would advocate. Even in
Africa at the height of the AIDS crisis a decade ago, the US government
assistance program insisted on “ABC” – Abstinence, Be faithful, and (only then,
if you must have sex) use a Condom. Domestically,
federal agencies were specifically prevented from funding needle-exchange
programs – despite stark evidence of their effectiveness at preventing
infection – until 2009, and the prohibition was reinstated two years later. For more than a quarter century, then, U.S. policy
in response to the HIV epidemic was driven by something other than simply preventing
We can call it “morality,” or squeamishness, or perhaps
simply a fervent wish that people would just behave better – more in the image of an ideal citizen. At least since the transmission pathways were
established, the federal government has been happy and effective in helping ideal
citizens avoid HIV – hemophiliac children who receive blood products, for example.
But it took much longer for the
government to get around to recognizing gay men and IV drug users as
victims. If these people hadn't done
what they did, none of this – well, you know. They brought it on themselves. This was not at all the way the citizenry was
supposed to behave. The government found
it difficult to officially recognize that it was treating fallible people, not idealized
people – those who behaved as they were, not as the government and many others thought
they should be. These actual humans
posed, as they always have, a real problem.
The landscape where government and public health meet is
dotted with illustrations of the real human/idealized human dilemma.
Law, both within and beyond the
domain of public health, is pervasively concerned with the availability of
information. A question of the first order is then what it means for an
individual to “have” a given piece of information. Consider someone who
hears the following commercial: “I admit it. I thought of
skimping. Could you look into those big blue eyes and skimp on her?
So I buy KRAFT Singles. Imitation slices
use hardly any milk. But KRAFT has five ounces per slice. Five
ounces. So her little bones get calcium they need to grow.” (The example, from a Federal Trade Commission
decision, comes from an article by Professor Richard Craswell.) Upon hearing
this commercial, does the listener “have” the information that KRAFT slices
contain more calcium than “imitation” slices?
can imagine at least three ways of answering this sort of question. The literalapproach concludes, in the KRAFT
case, that the listener does not “have” the information that KRAFT slices
contain more calcium because the literal terms of the commercial are not
logically inconsistent with KRAFT and “imitation” slices containing comparable
amounts of calcium (which in fact they did; the “imitation” slices got their
calcium from sources other than milk). The legal-pragmatic approach asserts that the listener “has” the
information that KRAFT slices contain more calcium because an authoritative
legal decisionmaker – in this case, the Federal Trade Commission (FTC) –
determined that a reasonable consumer would view the commercial as having this
meaning. Finally, the empirical approach suggests that the
listener “has” the information that KRAFT slices contain more calcium to the
extent that empirical evidence of the effects of KRAFT’s language, or
“comparable” language in a related context, suggests that listeners often will in
fact conclude from the commercial that KRAFT slices contain more calcium. In the words of the FTC – which employs the
empirical approach if it interprets a commercial to be ambiguous under its
reasonable-consumer standard, as it found was not the case in In re KRAFT
– relevant empirical evidence includes “reliable results from methodologically
sound consumer surveys” and “generally accepted principles drawn from market
research showing that consumers generally respond in a certain manner to
advertisements that are presented in a particular way.” (In re KRAFT (FTC 1991).)
literal, legal-pragmatic, and empirical approaches to “informedness” are no
less likely (and perhaps are more likely) to produce different conclusions when
a communication combines words with graphics, as in the below example from
Ontario of a sign warning about ticks carrying Lyme Disease:
In many areas of
public health today, there is great interest in warnings that incorporate
graphic elements of various types.
The literal approach in such
cases may face difficulty in determining what a “literal” interpretation of a
particular graphic element is. In a
prominent legal challenge to the Food and Drug Administration’s proposed
tobacco warnings, for instance, the United States District Court for the
District of Columbia displayed a form of literalism in responding to these
warnings. Speaking of the communication below,
the court complained that the communication’s inclusion of autopsy staples on a
deceased man’s chest suggested – notwithstanding the textual message “WARNING:
Smoking can kill you” – that “smoking leads to autopsies” (p. 273 of the
court’s opinion), and yet, the court remonstrated, “the government provides no
support to show that autopsies are a common consequence of smoking.” (R.J. Reynolds Tobacco Co. v. Food and
Drug Administration (D.D.C. 2012).)
the legal-pragmatic nor the empirical approach would succumb to this sort of
interpretive strategy, but in the case of the former, pictorial material would
tend to be downplayed, while text would often exert an outsize influence. As Rebecca Tushnet has remarked in connection
with the blank spaces Google Books substituted for books’ printed images, the
blank spaces provide “a perfect if unintentional demonstration of how
copyright, like much of law, thinks about images, which is to say it doesn’t
think much about them at all, privileging the text….” (Harvard
Law Review, 2012.)
respect to the empirical approach, the effect of graphic material would remain
a firmly data-driven question. Consider,
for instance, another pictorial health warning (below) challenged in the
tobacco litigation. Results from a
large-scale experimental study compared the likelihood of factually inaccurate
perceptions of the risk of smoking among respondents who viewed this warning to
the likelihood of factually inaccurate perceptions among respondents who viewed
a warning containing only the textual component (“WARNING: Tobacco smoke can
harm your children”). Respondents’ level
of agreement with the factually inaccurate statement “If I have smoked a pack
of cigarettes a day for more than 20 years, there is little health benefit to
me quitting smoking” was significantly lower among those who viewed the graphic-and-text
warning than among those who viewed the text-only warning. (Experimental Study of Graphic Cigarette Warning Labels: Final Results
Report, Prepared for Center for Tobacco Products, Food and Drug Administration,
available at http://www.regulations.gov/#!documentDetail;D=FDA-2010-N-0568-0008; Christine Jolls, 30th International Seminar on the New
Institutional Economics-Behavioral Theory of Institutions, Journal of
Theoretical and Institutional Economics, 2013.)
empirical approach thus suggests that “informedness” in the tobacco context is
higher with pictorial warnings than with text-only counterparts to such
warnings. This and similar empirical
findings on the factual accuracy of people’s risk perceptions under alternate
communication forms have an important yet under-recognized role to play in
First Amendment litigation over such communication forms.
Christine Jolls is Gordon Bradford Tweedy Professor of Law and Organization at Yale Law School. You can reach her by e-mail at christine.jolls at yale.edu
Back in 2002, Dan Solove made the following observation on data brokers:
Consolidating various bits of information, each itself relatively unrevealing, can, in the aggregate, begin to paint a portrait of a person's life ... a ‘digital biography.’ A growing number of private sector organizations are using public records to construct digital biographies on millions of individuals .... These uses are resulting in a growing dehumanization, powerlessness, and vulnerability for individuals.
Twelve years later, these profiles have become even more invasive. Health data, in particular, has become ubiquitous. Brokers have lists of thousands of people with sexually transmitted diseases, diabetes, cancer, Alzheimer’s, dementia and AIDS. They don't need access to medical records to get this information. As Nicolas Terry has shown, patient-curated and medically-inflected data can be used as proxies for health status. When a firm has a sufficient quantity of customers and loyalty programs, it can even predict whether women are pregnant. Consumer health websites and online surveys are also analyzed for clues as to health status.
v. Wade, the Supreme Court utilized medical evidence and expertise to
protect liberalizing abortion. In doing
so, the Court insulated progressive medical expertise and evidence and
delegitimized conservative claims. In
contemporary abortion jurisprudence, however, the courts frequently treat conservative
medical science, evidence, and expertise claims as objective and neutral. Understanding this transformation
examination of the court’s shifting
position towards a growing “conservative” literature on abortion.
Carhart v. Gonzales, the Supreme
Court case that found that there was no need for a health exception for a late
term abortion procedure. In the opinion,
While we find no reliable data to measure the phenomenon,
it seems unexceptionable to conclude some women come to regret their choice to
abort the infant life they once created and sustained. Severe depression and loss of esteem
This statement did not go without
notice. In her dissent, Justice Ginsberg
criticized Kennedy’s assertion by citing to numerous studies that disprove the
assertion of a link between mental health consequences and abortion. Towards the end her long citation, however,
are two key words: “but see.” At this
pivot point the citation shifts to an acknowledgement of a growing literature claiming
that there are negative mental health consequences for women who choose
The citation should concern reproductive
justice advocates and lawyers. It differs significantly from Blackmun’s
implicit dismissal of a similar claim presented to the Roe court in an Amicus
Brief submitted in 1971 by “Certain Physicians, Professors, and Fellows of the
American College of Obstetrics and Gynecology.”
Instead, Ginsberg’s “but see” cite demonstrates that a new “fact” is
taking hold: that abortion causes negative mental health consequences.
To understand the production of new facts
about abortion requires, first, an understanding about how courts aid in the
production and legitimation of knowledge about abortion, and second, how this
knowledge has an impact on access to abortion.
With a new fact about women’s negative mental health consequences to
abortion taken as a given, the courts have been able to roll out a host of
other speech requirements for physicians to protect a woman’s mental
health. The 2011 Fifth Circuit decision
on the Texas Women’s Right to Know Act (WRKA) is a case in point. Texas House Bill 15 requires that a physician
performing an abortion display “a sonogram of the fetus, make audible the heart
auscultation of the fetus for the woman to hear, and explain to her the results
of each procedure and to wait 24 hours, in most cases, between these
disclosures and performing the abortion.”
Reproducing the entirety of the Carhart passage on regret, the Fifth
Circuit takes Carhart’s assertion
that abortion causes negative mental health consequences as a truth. Purported
concern for the “life within a woman” and the mental health risk for the patient,
propels the Fifth Circuit to determine that the requirements of the WRKA do not
constitute a First Amendment violation: physicians can be compelled to provide
this information to women seeking abortions because the WRKA mandates
disclosures that are truthful, non-misleading, and relevant as part of the
reasonable regulation of medical practice.
According to the court, this is simply factual information.
Can “facts” be ideological? This is the hard question that progressive
advocates must take into consideration in making legal claims. Taking note of the court’s role in
legitimating assertions about abortion, while paying attention to the social
and political environment from which evidence emerges, demonstrates the
contingent nature of “facts.” The production
and ordering of these facts has material consequences, as the current
environment for abortion access demonstrates all too clearly.
Aziza Ahmed is Associate Professor of Law at Northeastern University School of Law. You can reach her at Az.Ahmed@neu.edu
The fundamental reason why First Amendment restricts the
government’s ability to compel speech is because compelling a person to
communicate against her will violates her autonomy. This harm to personal
integrity is even more injurious where the speaker disagrees with the message
she is being forced to communicate. For this reason, little attention has been
paid to the harms that some forms of compelled speech inflict on listeners.
My recent research deals with the First Amendment implications
of the FDA’s recently withdrawn graphic tobacco labeling requirements, as well
as state “display and describe” ultrasound laws as part of the abortion
informed consent process. Both sets of laws have been criticized for relying on
emotionally-triggering graphic imagery to persuade audiences that may not wish
to receive these messages, and who (in the case of pre-abortion ultrasounds)
may suffer psychological harm as a result of viewing them. In my symposium
remarks, I argue that concerns about the emotional impact of the tobacco and
ultrasound images on viewers may indeed be relevant to the First Amendment
claims against compelled speech.
Update on the Establishment Clause and Third Party Harms: One Ongoing Violation and One Constitutional Accommodation
Nelson Tebbe, Richard Schragger, and Micah Schwartzman
It is well known that the
Obama Administration has taken up the Supreme Court’s invitation to ensure
full contraception coverage without cost sharing for the employees of Hobby
Lobby and similar companies with religious objections. What is less commonly
appreciated is that Hobby Lobby’s own employees almost certainly are not
receiving that coverage—right now. Consequentially, federal law is
accommodating religious objectors to the contraception mandate by shifting that
burden to third-party employees in violation of the Establishment Clause, at
least at the moment. But not every religious accommodation shifts significant costs
to third parties. A second case before the Court proves that point: Holt v. Hobbs involves an accommodation
of belief that is perfectly constitutional, as we will explain.
This is Part Two of a two-part post on the First Amendment issues raised in United States v. Caronia
Commercial Speech Protection Is Not That Dumb
Amendment protection of commercial speech generally is not at odds with
consumer protection. To the contrary, restrictions on advertising often favor
incumbent firms, and the development of these restrictions is often the product
of self-interested lobbying.
Legal scholars sometimes obscure the fact that the commercial
speech doctrine was developed to promote a right to receive information by
consumer listeners, and not to strengthen the power of corporations. Since the
only dissenter in the seminal commercial speech case Virginia State Board of Pharmacy was then-Justice Rehnquist, it’s
difficult to argue that the doctrine developed as mere obeisance to corporate
America. Rather, the Court believed regulators were interfering with
information exchanges that were desirable for consumers.
Court was correct. A few years before Virginia
State Board of Pharmacy, several studies showed that well-meaning
advertising bans punished consumers instead of producers. For example, a 1972 study comparing states that either permitted or banned advertising by optometrists
found that the prices for prescription eyeglasses were 25% higher in the states
with advertising bans. The FTC itself found that the product quality was
indistinguishable, and that the gap in prices was attributable to the
information asymmetries in the ad ban states.
Other studies found the same effects from advertising restrictions on legal services and prescriptiondrugs.
Even cigarette advertising
restrictions have ambiguous effects, sometimes negative. Notwithstanding the
Supreme Court’s findings in Lorillard, empirical
evidence is mixed on whether tobacco advertising mostly affects market share
among brands or if it raises overall demand for tobacco products. There was at
least one period when cigarette advertising had the effect of decreasing demand for cigarettes. 1950 marked the first time that
doctors were making an explicit connection between smoking and cancer. But
while the federal government, the American Medical Association, and the American Cancer Institute reassured consumers that the evidence was preliminary and that there was no reason to drastically alter smoking habits, the tobacco
industry lost sales every year for several years
in a row.
One plausible explanation, as explained by John Calfee, is that the industry was engaged in a “less worse”
campaign. The brands were encouraging smokers to pick their slightly
less-unhealthy brand over other more dangerous ones. So consumers were
bombarded with the message that these things are NOT healthy.
pharmaceutical industry is enjoying the sort of influence over First Amendment
jurisprudence once reserved for the likes of HustlerMagazine. In Sorrell v. IMS, the Supreme Court protected
the transfer and use of prescription data for pharmaceutical detailing (that
is, the in-person sales pitches that pharmaceutical reps make to doctors.) A more
significant free speech victory for Big Pharma was delivered by the Second
Circuit in United States v. Caronia,
which overturned the conviction of a pharmaceutical detailer for off-label
marketing of a drug. Public health expertsand constitutional law scholars are
intensely critical of these developments, arguing that they are perversions of
the First Amendment to favor large corporations at the expense of consumer
protection. For reasons I sketch here, their reactions overstate the conflict
between Big Pharma and public health and underestimate the First Amendment
interests at stake.
While the constitutional concept of animus was born in a
case about discrimination against hippies, and was significantly elaborated in
a case about persons with cognitive disabilities, since the Court’s 1996
decision in Romer v. Evans, animus
has come to be strongly associated with protecting the rights of sexual
minorities. (See Bill Araiza’s post in this symposium: “[A]nimus has become a central organizing
principle of the Court’s sexual orientation discrimination jurisprudence.” And Russell Robinson’s: “The modern Court has refused to extend
those precedents [Moreno and Cleburne] in every context except gay
This reliance on animus in the sexual orientation cases may
represent, as Neil Siegel has used the term in other contexts, a “way station” to application of traditional equal protection doctrines (suspect
classification analysis and explicit application of heightened scrutiny) to
sexual minorities. Alternatively, it may
represent a non-transitory commitment to approaching the sexual orientation
cases in this manner.
In either case, now that the Court has tabled the issue of
same-sex marriage—perhaps temporarily, perhaps permanently—the question becomes
whether the doctrine of animus has significance outside of the same-sex
qualifies as state regulation of physician “conduct” as opposed to physician “speech”?
In Wollschlaeger v.
Governor of Florida,
760 F.3d 1195 (11th Cir. 2014), the Eleventh Circuit determined that a Florida
statute prohibiting physicians from inquiring about firearm ownership (among
other things) posed no First Amendment concerns because the statute just
regulated physician “conduct” that had only an incidental effect on physician speech.
According to the Eleventh Circuit,
Florida could define “good medical practice” as not including questions about
if Florida had instead required
physicians to inform patients that firearm ownership poses little risk to their
families’ safety and health as long as the firearms are properly secured? Under
the majority decision in Wollschlaeger, the state would just be “defining the
practice of good medicine” as including giving patients information about
firearm ownership, and the First Amendment would be inapplicable to this
regulation of physicians’ “conduct.” As the Eleventh Circuit held, “[t]o define
the standards of good medical practice and provide for administrative
enforcement of those standards is well within the State’s long-established
authority to regulate the professions.” But many physicians would undoubtedly
disagree with the compelled statement about firearm ownership, and would view
it as the state’s attempt to interject its ideological position into the
demonstrates the dangers of the speech versus conduct distinction as applied to
the regulation of medical professionals: if states are given free reign to
define what qualifies as the practice of “good medicine,” the First Amendment
will provide little protection against the imposition of the state’s ideological,
biased, and medically dubious opinions upon physicians, and by extension, their
patients. Consider state ‘informed consent laws’ in the abortion context: when
a state requires physicians to give patients certain ‘information’ prior to a
medical procedure, the state is regulating what qualifies as “good medicine” as
part of the “conduct” of performing that medical procedure. Under this logic,
requiring a physician to tell her abortion patient that the abortion will
terminate the life of a whole, separate, unique, living human being, and that a
known risk of abortion is an increased risk of suicide and suicide ideation is
just regulation of physician “conduct” that has an incidental effect on speech.
As is a state law requiring physicians to display and describe the results of
an ultrasound examination to the abortion patient, even if she does not want to
see or hear the results. In fact, there would be few limits (except for
rational basis review) on what a state could require physicians to say before
any given medical procedure: the state’s general power to regulate medical
professionals would be extended into an unfettered power to control physician
Speech in the context
of a patient-physician relationship will often be intertwined with the
physicians’ “conduct.” Certainly there are some types of state statutes that
regulate pure “conduct” that necessarily involves speech—a statute prohibiting
a physician from prescribing a certain drug, for example, also prohibits him
from stating to a patient that he is going to prescribe that drug. Such a
statute regulates pure conduct, not speech, and does not raise First Amendment
concerns. A more complicated example is the California statute prohibiting
licensed therapists from engaging in “sexual orientation change efforts” with
minors, which was upheld by the Ninth Circuit as a mere regulation of licensed
therapists’ “conduct” by banning a certain type of “treatment” effectuated
through speech. Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014).
But if “conduct” is extended to mean whatever occurs during a physician
appointment that is part of “the practice of medicine,” states could control
any aspect of physician speech. Placing heavy reliance on the speech versus
conduct distinction in the context of regulation of the speech of medical
professionals is unworkable. While the First Amendment may not apply with equal
force to all aspects of physician speech, the “conduct” distinction dodges the
free-speech issues raised by these laws, and would give states too much leeway
to regulate medicine based on ideological motivations.
Jennifer Keighley is an associate at Emery Celli Brinckerhoff & Abady, LLP, in New York City, and formerly a Resident Fellow at Yale's Information Society Project. You can reach her by e-mail at jennifer.keighley at gmail.com Posted
by Guest Blogger [link]
Tuesday, October 14, 2014
Free Speech, Medicine, and Public Health: An Overview of Issues
speech in professional or public health contexts include both funding
conditions and restrictions on what must or must not be said. Some restrictions entail straightforward
First Amendment analysis, while others raise the question of whether
professional speech occupies a special niche of more limited scrutiny. Still others raise questions about commercial
speech doctrine and its application to medical or health-related information. A comprehensive theory uniting all situations
is still wanting. Delineating family
resemblances may be all that is possible.
Building on the work of Robert Post, Eugene Volokh, Jack Balkin, and
others, this conference explores this territory.
Government Funded Health Activities
One cut at the
issues distinguishes disputes involving government funding of regulated
activities from nonfunded situations. At
one pole is Rust v. Sullivan, 500 U.S
173, (1991), which upheld restrictions on doctors discussing abortions funded
under a Title 10 federal contraceptive program.
The Court found that the program in essence funded government speech by
private doctors, thus allowing the government leeway in limiting what funded
doctors could say to patients treated under that program. At the other pole is Legal Services Corp. v. Velasquez, 531 U.S. 533,(2001), which struck down a restriction
on LSC lawyers challenging welfare laws on behalf of their clients. Finding that the LSC was intended to support
a diversity of views, the Court held that the restriction constituted a
viewpoint restriction and could not stand.
Future funding of medical and health activities conditioned on mandates
to speak or refrain from speaking will have to navigate the space between Rust and Velasquez, and other conditional funding cases.
funding is not involved, the analysis of government regulation of medical professional
speech directly implicates the First Amendment. Conceptually, the analysis will be the same
whether the state is mandating or is restricting speech. To get a flavor of the area, however, it is
useful to consider cases that group into one or the other category.
skepticism, and open-mindedness to unwelcome discoveries are critical to the scientific
process, as well as to the spirit of the First Amendment. Yet in some areas of public health science –
particularly applied research on certain environmental and public health
problems – the possibility of vigorous debate has too often been chilled and
suppressed when it cuts against the interests of those with the stakes and
resources to control the message.
Dozens of highly
respected public health researchers have found themselves in the bull’s-eye of
legally-backed attacks when their scientific speech is unwelcome to powerful
When Dr. Paul Fischer published research in JAMA revealing
that children preferred Joe Camel (a tobacco logo) to popular children’s characters
like Mary Poppins, the tobacco giant, R.J. Reynolds took aggressive legal
action. They initiated scientific
misconduct charges against him, filed subpoenas through third-party litigation seeking
every scrap of paper in his files, including the confidential names and
addresses of the children in his study, and ultimately acquired this data
through a State Open Records Act request.
Dr. Herbert Needleman was also drawn into a long scientific
misconduct proceeding over his research revealing correlations between exposure
to lead in children and below-mean IQs.
This time it was the lead industry that initiated the claim. Both sets of attacks were vigorous,
illegitimate, and arose from those with the stakes and resources to endeavor to
shut down the “truth machine.” And,
sadly, as my colleague Tom McGarity and I document in Bending Science, and Professors Doremus and Kuehn document in complementary articles, these
accounts appear to only be the tip of the iceberg.
In the absence of the First Amendment, regulating commercial
activity through information would seldom be controversial. Mandatory disclosure (and even the much less
common practice of proscribing corporate information-sharing) is generally
considered less intrusive than “command-and-control” regulation. It also accords with a variety of ideological
perspectives, ranging from market facilitation among conservatives to a “right
to know” among liberals. The
constitutional overlay of First Amendment rights, particularly as developed by
the Roberts Court, makes legal analysis more difficult.
Regulation of speech involving licensed professionals – such
as physicians, dentists, attorneys, and accountants – adds even greater
nuance. In a line of decisions dating
back over 30 years but recently increasing in variety and frequency, the courts
have considered the legality of restrictions on professional advertising,
prohibitions on counseling and interviewing, obligations to share particular
information with patients in advance of treatment, and various other professional
Why do these cases challenge constitutional lawyers more
than other commercial cases? A
profession, as Harvard law dean Roscoe Pound usefully defined it, is a group
“pursuing a learned art, as a common calling, in the spirit of public
service.” Sociologist Steven Brint
distinguishes further between “expert knowledge professions” and “social
trustee professions,” while emphasizing that many modern professions encompass
elements of both roles. These attributes
introduce into the analysis of professional regulation considerations of
specialized knowledge and judgment, collective self-governance, and obligation
to both individual clients and the broader society that go substantially beyond
the notion that professionals voluntarily subject themselves to government oversight
by receiving a license from the state.
On Saturday, October 18, I’m headed to New Haven to speak at
the conference “Public Health in the Shadow of the First Amendment.”
In the meantime, as Secretary of Maryland’s Department of
Health and Mental Hygiene, I have been fielding nonstop questions about the
Ebola virus and the potential risk to Americans.
After the first case was identified in the United States
last week, my Department, along with representatives from Johns Hopkins and the
University of Maryland held a news conference
to provide factual information on Ebola, its treatment, investigation of cases,
and handling of outbreaks. When asked
about potential treatments and vaccines, I was able to say that FDA is
accelerating consideration of important therapies, but that none had been
approved to date.
I’m a pediatrician, not a lawyer. I am, however, familiar with the increasingly
popular view of some attorneys and judges who believe that the First
Amendment’s protections for speech apply fully to marketing by corporations -- that it is
unconstitutional to restrict companies from saying truthful statements about their
products, and that the burden of disproving such statements falls to the
Such a perspective would not serve Americans well this week. Companies would be able to market worthless remedies
for preventing and curing Ebola infection, backed by technically true but
confusing statements about doctors and scientists who happen to agree. When actual treatments that work become
available, consumers would be forced to distinguish in a moment of panic
between meaningful care and snake oil.
Public health agencies have long regulated commercial speech
because doing so saves lives – both directly, by reducing unnecessary
confusion, and indirectly, by supporting an incentive structure that rewards advancing
health. Regulation of commercial speech
often represents the right balance between not doing anything (and the resulting
health harm) and banning particular products (and eliminating choice
altogether). Public health action to
regulate commercial speech has enjoyed broad popular support.
Now is not the time to trade this approach for an ideological
vision of commercial speech under the First Amendment. I look forward to the conference and the
opportunity to engage with practitioners, academic experts, and others on this vital
topic in public health and the law.
Joshua M. Sharfstein, M.D., is Secretary of Health & Mental Hygiene for the State of Maryland. You can reach him by e-mail at joshua.sharfstein at maryland.gov
Do laws that regulate the professional speech of doctors trump
the First Amendment? The underlying premise of this question is that the First
Amendment applies whenever a person engages in what would colloquially be known
as “speech.” If a doctor talks to patients, and if the state regulates this
medical “speech,” the First Amendment must be “trumped.”
I reject that premise. If First Amendment scrutiny were
triggered every time a person communicates, tort liability for product warnings
and instructions would be constitutionalized. All state regulations of contract
formation would be constitutionalized. Securities and Exchange Commission
requirements of corporate disclosure would be constitutionalized. Antitrust
legislation would be constitutionalized.
But this has never been the landscape of our law. We accord
First Amendment protection to allow all to participate in the formation of
public opinion, which, as James Madison observed, is “the
real sovereign in every free” government. In a democracy like ours,
all must be equally free to contribute to public discourse.
Public discourse does not include contracting, product
warnings and labels, corporate disclosure forms, or antitrust behavior. It is
for that reason that none of these forms of “behavior” receive First Amendment
protection, even though each involves “speech” in its colloquial sense.
Analogously, the practice of medicine forms no part of
public discourse. That is why doctors are sued every day in medical malpractice
for speaking or failing to speak. None of these suits ever involves the First
Amendment. Were it otherwise, state regulation of the practice of medicine
would be fundamentally constitutionalized.
When doctors engage in public discourse as citizens, they
should and do receive the protection of the First Amendment. Thus Dr. Oz can make whatever
recommendations he wishes when he speaks publicly on his television show. If he
is sued for his opinions, he can claim the First Amendment as a defense. But if
Dr. Oz makes an improper recommendation in the course of his medical practice
while treating a patient, he will be subject to malpractice law and find no
refuge in the First Amendment.
There is one complication. The First Amendment protects the
circulation of knowledge, because “We the people” require knowledge to govern
ourselves. State malpractice laws uphold this circulation of knowledge, because
they require doctors to communicate reliable and accurate information.
But to the extent that the practice of medicine has become
politicized, some states have sought to corrupt this circulation by preventing
doctors from communicating relevant knowledge, or by requiring them to
communicate falsehoods. Texas, for example, seems to require physicians to
inform women that an abortion may increase their risk of breast cancer. This is
false, and it frustrates an underlying purpose of the First Amendment. A doctor
may sue to raise this constitutional issue, but it is misleading to imagine
that the doctor is asserting her personal First Amendment rights to speak as
she wishes. It is more accurate to imagine that she is a constitutional
spokeswoman for the rights of her patients to be informed. This is analogous to
the kind of First Amendment rights we apply in the domain of what is known as
Robert C. Post is Dean and Sol & Lillian Goldman Professor of Law at Yale Law School. You can reach him by e-mail at robert.c.post at yale.edu An earlier version of this blogpost appeared in the New York Times.
Yale Conference on Public Health in the Shadow of the First Amendment
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.