Words to Live By: Public Health, The First Amendment, and Government Speech
Jess Alderman, 57 Buff. L. Rev. 161 (2008)
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This Article identifies three general categories of speech and health cases, represented by the three scenarios above, that illustrate how better to protect public health without compromising free speech. In the first category, as in the abortion advertisement example, the First Amendment appears to present a barrier to the government’s duty to protect the public. Seeking to promote public health, the government attempts to avoid the appearance of endorsing false or harmful viewpoints. In such cases the government might find that others’ messages undermine the integrity of its own. This first category presents a direct conflict between public health and free speech. [...]
This discussion will consider each of these three types of cases as it examines how courts in First Amendment cases tend to disregard the effect of government speech on public health. Scientific information can be particularly difficult for listeners to evaluate, so they will turn to sources they trust for information. Because the government is empowered to regulate and promote health, can expend vast resources, and has historically played a central role in the promotion of health, government speech has a uniquely powerful influence on public health. However, the government’s role in protecting public health can conflict with or complicate free speech considerations. If free speech and public health are conceptualized not as competing values but rather as values that further the same ultimate goals, such as self-realization, the government should have an interest in preserving both. A public health perspective enriches First Amendment analysis by considering multiple factors that impact citizens’ ability to make free and informed choices.
