First Amendment Constraints on Public Health Interventions

Richard J. Bonnie

Public Health Law 101

May 12, 2009

Road Map

• Illustrative ways of regulating messages to protect and promote public health

• The First Amendment Constraint: An Overview of First Amendment Principles

• Regulation of “Commercial Speech”• Tobacco Regulation as a Test Case

– Full disclosure required– From exposition to advocacy

Influencing and Controlling Messages to Protect and Promote Public Health

• Promote and facilitate informed individual choice by– Disseminating information– Mandating disclosures– Curtailing false and misleading information

• Prevent and control epidemics by managing information– providing information and instruction to enable people

to avoid exposure to germs or toxins– containing spread of “harmful messages or ideas”

(e.g., suicide clusters, product tampering epidemics)

Influencing and Controlling Messages to Protect and Promote Public Health

• Encourage healthy behaviors and discourage unhealthy behaviors – Persuasion through, e.g., media campaigns– Promote healthy social norms (reshape the

culture)

• Counteract “harmful” cultural influences (e.g., depictions in entertainment media, unhealthy marketing and advertising of alcohol, tobacco, unhealthy food)

The Big Question

As public health policies become more aggressive in promoting, supporting, and reinforcing “healthy” social norms, they will also be confronting commercial and cultural influences that tend to promote and sustain “unhealthy” norms and behaviors. What constitutional boundaries constrain or limit policies aiming to suppress, regulate or counteract messages in entertainment or commercial media that are thought to be inimical to the public health?

The First Amendment Constraint

• “Congress shall make no law … abridging the freedom of speech or of the press…”

• Applies to the states and all state and local public institutions

Overview of First Amendment Principles and Concepts (1)

• Definition of “freedom of speech” – not all “speech” or expression is constitutionally protected: e.g., “obscenity, “defamation,” “fighting words,” solicitation to commit crime, incitement to imminent lawless action

• Even within sphere of “protected speech,” degree of protection varies according to “constitutional value” of speech

• Sometimes unprotected speech must be protected as means of giving breathing room to protected speech

Overview of First Amendment Principles and Concepts (2)

• In most cases, a restriction of speech based on its content is subject to the strictest scrutiny, especially when it involves political or religious speech.

• However, regulations of the “time, place or manner” of speech (e.g., not with a loudspeaker at 2:00 AM) are permissible in they are content-neutral, narrowly tailored to an important non-speech purpose, and leave open alternative channels of communication

Overview of First Amendment Principles and Concepts (3)

• Similarly, government can regulate conduct for legitimate reasons even if it has incidental effect of limiting methods of expression (the symbolic speech problem)

• First Amendment does not constrain “government” speech, or government subsidies for private speech if recipients are not put to a choice between the accepting the subsidy and surrendering rights and if the government’s speech doesn’t violate neutrality regarding religion required by the “establishment clause” of the First Amendment.

“Political” speech is at the core of the First Amendment

• Virtually no constraint on political speech based on content – free marketplace of ideas, open robust debate and criticism essential to self-government

• Press serves checking function• Artistic speech and entertainment also implicate core FA

values • Government must be neutral regarding content and “may not

prescribe orthodoxy in politics, religion… or other matters of opinion”

• No prior restraint (to see whether it is protected or “harmful” before allowing it)

• Even post-facto damages or penalties for harms due to unprotected speech are limited to avoid deterring protected speech

• FA bans coerced speech as well as restrictions on speech

Examples from Injury Prevention

• Adolescent suicide clusters… how to prevent transmission of infectious “ideas”? No prior restraint. Rely on self-censorship by responsible press

• Prevent “copycat” crimes based on specificity of depictions – tort liability of broadcasters for negligent or reckless broadcasting?

• General issues of exposure of children to violence in entertainment media – no prior restraint, difficult to design scheme to protect children without restricting adult exposure. In general, must rely on market forces consumer pressure and self-regulation rather than direct regulation

Commercial Speech

• Until 1976, “commercial speech” was unprotected. • Virginia Board of Pharmacy struck down ban on

prescription drug price advertising by pharmacists based on societal value of free flow of commercial information.

• But what degree of protection? – If same rules applied to commercial speech, even

false and misleading ads might be regarded as tolerable to allow “breathing room,” relying on market forces for correction.

– Government would have to be neutral about commercial messages, even if inimical to public welfare.

The Central Hudson (1980)Test: Intermediate Scrutiny

• Commercial speech is protected by the FA only if it concerns lawful activity and is not false or misleading

• Protected commercial speech may be restricted if the regulation directly advances a substantial governmental interest and is no more extensive than necessary to serve that interest (but it need not be the least restrictive means; only needs to be “narrowly tailored,” and achieve a “reasonable fit” between end and means)

Road Map from Here

• Digression #1: Mandated Disclosures

• Digression #2: Government Speech

• Back to the Main Thread: Restricting Advertising

• The New Frontier: Aggressive Package Regulation

Mandated Factual Disclosures

• Do mandated factual disclosures constitute “coerced” speech subject to heightened scrutiny under Central Hudson? No

• See NYSRA v NY City Bd of Health, 556 F.3d 114 (2d Cir., 2009): NY City Health Code Sec 81.50, mandating covered restaurants to post calorie content on menus and menu boards, simply requires disclosure of “purely factual” information, and is therefore subject to more deferential standard of scrutiny (“reasonable relation between end and means”) rather than heightened scrutiny required by Central Hudson.

Government Speech

• See RJ Reynolds v Bonta, 272 F. Supp. 2d 1085 (2003) objecting to use of funds raised under Prop. 99 to fund anti-smoking media campaign

• Government can collect taxes from regulated industry and then use the tax dollars for any authorized public purpose, including funding a media campaign discouraging use of industry’s products

• This is “government speech,” not “coerced” private speech

Back to Main Point: Aggressive Regulation of Industry Marketing

• No time to discuss food or alcohol marketing; use tobacco marketing as a test case

• Specific policy tools (See IOM, Ending the Tobacco Problem: Blueprint for the Nation, 2007)– Restrictions on advertising by manufacturers and

retailers: limited to black-and-white, text only– Mandated “corrective advertising” by manufacturers

and retailers– Ban on manufacturer communications targeting youth– Aggressive package regulation, including pictorial

warnings

What are Permissible Restrictions on

Commercial Advertising? • 5-4 decision in Lorillard v Reilly (2001) struck down MA

ban of ALL outdoor tobacco advertising on billboards and at point of sale w/in 1000 feet of schools, holding that it was broader than necessary to serve state’s interest in preventing use by minors

• A growing number of Justices wants to afford truthful, non-misleading commercial speech strong constitutional protection (more demanding scrutiny than Central Hudson requires)

• Most tobacco control advocates assume that any significant restriction of tobacco advertising (unrelated to truthfulness of a claim) would be struck down.

• I believe they are wrong.

The Basic Question

• I believe that the Justices who want to apply stricter scrutiny are concerned about bans on advertising of information.– I am willing to assume that any ban on advertising

truthful, non-misleading information to adults is presumptively unconstitutional

• The key question is whether promotional advertising warrants stronger constitutional protection than that provided under the Central Hudson test. – I am confident that a strong majority of the Court will

say no. (I believe that it has little or no constitutional value on its own, but I don’t need to go that far.)

Black-and-White Text-Only Restriction Is Test Case

• The test case is a regulation limiting tobacco advertising to a text-only, black-and-white format

• FDA’s 1996 Tobacco Rule, which would have covered magazine advertising with >15% youth exposure, would be revived under HB 1256

• 2007 IOM Report recommends this approach for all tobacco advertising, including at point of sale

• But IOM Report emphasizes that images of product itself should be permitted (to inform consumers about product characteristics relating to potential health risks)

Black-and-White Text-Only Restriction Would Be Upheld

• This position accords full protection to informational advertising, but would ban “lifestyle” or “image” advertising aiming to create positive feelings toward the product and to “suggest” potential benefits without saying so -- a “reasonable fit” between means and objective of suppressing tobacco use

• Put another way, tobacco producers and retailers have a constitutionally protected interest in conveying information regarding price and product characteristics, but do NOT have a constitutionally protected interest in “promoting” the use of tobacco when the government has a compelling interest in suppressing its use.

Black-and-White Text-Only Restriction Would Be Upheld

• Were it otherwise, the Constitution would be incoherent, forcing government to choose between prohibiting the product altogether or allowing it to be aggressively promoted, with no regulatory space in between.

• Even if the “greater power” (to prohibit) doesn’t always include the “lesser power” (to ban advertising altogether), disabling government from suppressing promotional marketing creates a constitutional contradiction and undermines prudent self-governance.

Other Possible Objections?

• Regulatory distinction between words and pictures is not workable, even in conveying information– Answer: I think that FDA would be able to craft and

apply reasonable regulations that would allow images to convey information about product characteristics; if the manufacturer wants to display other images (e.g., of people smoking) it has to articulate what message is actually being communicated by the image

• Any commercial message can be dressed as a constitutionally protected “political” message– Answer: Perhaps, but the manufacturers would have

to make a combined political/marketing decision and media would have to decide whether to display the ad

Stay Tuned

• Supreme Court will eventually have to confront these unsettled issues about the status of commercial speech under the First Amendment

• How it does so for tobacco is likely to have implications for other health-based restrictions on promotional advertising – Certainly for regulations aiming explicitly to suppress

consumption of certain foods or alcohol (by youth only or by adults as well)

– And even if the argument is focused more narrowly on preventing child exposure to messages that are inherently manipulative and deceptive (as with food advertising)

Aggressive Package Regulation

• HR 1256 would strengthen package warnings and empower FDA to revise them, including increased size and visibility and use of graphics

AUTHORITY TO REVISE CIGARETTE WARNING LABEL STATEMENTS

The Secretary may … adjust the format, type size, and text of any of the label requirements, require color graphics to accompany the text, increase the required label area from 30 percent up to 50 percent of the front and rear panels of the package, or establish the format, type size, and text of any other disclosures required under the [FDA Act] if the Secretary finds that such a change would promote greater public understanding of the risks associated with the use of tobacco products.'

CANADIAN WARNING LABELS

Canadian Health Warning Labels

Brazilian Warning Labels

Warning Labels—Salience at Baseline

In the last month...how often, if at all, have younoticed the warning labels on cigarette packages?

Canada Australia U.K. U.S.

Often/Very often

60% 52% 44% 30%

Warning Labels—Selected Other Results

Canada Aust. U.K. U.S.

Reading labels often/very often 33 26 22 16

Notice anti-smoking informationon pack 84 71 55 46

Labels have been a motivation toquit 45 31 28 29

Labels have stopped you fromhaving a cigarette 19 12 9 14

Would Compelled Graphic Displays be Constitutional?

• Coerced speech? (e.g., flag salute)• Clearly mandatory product disclosures,

corrective statements, etc are permissible• But are there limits? Information v

images? Communication v persuasion?• Can government “commandeer” the

package for its persuasive message?• New frontier of public health and safety

regulation

Stay Tuned