The Commercial Speech Doctrine in Health Regulation: The Clash between the Public Interest in a Robust First Amendment and the Public Interest in Effective Protection from Harm
Orentlicher, David, American Journal of Law & Medicine
Historically, government has been given more leeway when invoking its interests in safeguarding the public health than when asserting other state interests. Thus, for example, when considering a constitutional challenge to mandatory smallpox immunization in Jacobson v. Massachusetts, the Supreme Court employed its highly deferential, rational basis review rather than the stricter level of scrutiny that it normally employs when individuals assert interests in bodily integrity.1 Similarly, Congress and the Food and Drug Administration (FDA) have imposed greater restrictions on the speech of pharmaceutical companies than have been considered acceptable for speech in other commercial settings.
In recent years, however, it appears that a trend is developing toward applying the same level of constitutional scrutiny to health regulation. In Abigail Alliance, a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit overrode FDA regulations to recognize a constitutional right of access for patients to experimental chemotherapy.2 In Western States, the U.S. Supreme Court struck down advertising restrictions imposed on pharmacies by Congress.3
To some extent, it makes sense to treat health regulation more like other kinds of regulation. Government may be too quick to sacrifice individual liberty when threats to health loom. However, courts may be overcompensating in their efforts to right the balance between individual liberties and the public's interest in good health.
In this article, I consider the balance between liberty and health in the context of the right to speak. More specifically, I examine the commercial speech doctrine and suggest how courts should draw the balance between state interests in public health and corporate interests in promotional speech. I argue that there are two important doctrines for retaining some special treatment of public health concerns. First, rather than following the Jacobson principle of deference to legislative judgment, courts should follow the principle of deference to the judgment of public health officials that was enunciated in School Board of Nassau County v. Arline* Second, courts should invoke the principle of trust and its concomitant duty of loyalty to adequately recognize the interests of individuals in not having their relationships with physicians, pharmacists, and other health care providers exploited for the providers' personal gain.
II. THE PRIVILEGED STATUS OF HEALTH CARE
For much of the twentieth century, the Supreme Court treated health care matters differently than issues arising in other industries or settings. When private or public actors invoked health concerns to justify their conduct, the Court often expressed less skepticism than when other reasons were invoked for public or private conduct.5 Thus, for example, for many years the Court did not apply antitrust law against health care providers as aggressively as it did against individuals or companies in other businesses, until it changed course in the 1970s.6
While the special status of health care has influenced doctrine in a number of legal fields, including tort and contracts law, this article focuses on its special status in constitutional law. More specifically, this article focuses on the special status of public health justifications in constitutional law. After describing the Supreme Court's historic principle of deference when governments invoked health concerns, the article describes a current trend toward treating health concerns like other state interests.
A. PUBLIC HEALTH INTERVENTIONS AND THE CONSTITUTION
The Supreme Court's jurisprudence in matters of public health dates back to its 1905 opinion in Jacobson v. Commonwealth of Massachusetts J In that case, Henning Jacobson objected to a local regulation that required him to receive a smallpox vaccination.8 The regulation was authorized under a state statute, and the Court considered the constitutionality of the statute. …