The First Amendment and the
Congress shall make no law … abridging the freedom of
—First Amendment, U.S. Constitution
FFREEDOM OF SPEECH, secured by the First Amendment, is a bedrock principle of both American democracy and constitutional law.1 It is a principle that courts, including the Supreme Court, have come to regard very seriously. Indeed, if any constitutional right is treated as creating a strict limit on the power of the state, it is the First Amendment's protection of speech.
Yet, in our so-called information age, speech is also a powerful determinant of population health. In myriad ways, speech can and does promote population health, providing individuals and populations with information they can use to keep themselves healthy and, more important and less obvious, providing them with information they can use to mobilize around public policies that can promote their health. But speech can also harm the health of populations, both by enticing individuals to engage in risky behaviors and by shaping an unhealthy environment.
Given how important speech is to population health, it might appear that a clash between free speech and population health is inevitable, that courts must choose between validating the First Amendment and permitting the government to protect population health. At times this will