Words to live by: Public health, the first amendment, and government speech

Buffalo Law Review

Volumn 57, Issue 1, 2009, Pages 161-224

  Alderman, Jess ^a  

^a UNIVERSITY AT BUFFALO   (United States)

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EID: 64749113463     PISSN: 00239356     EISSN: None     Source Type: Journal    
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References (367)

1. Christ's Bride Ministries, Inc v. Se. Pa. Transp. Auth. 148 F.3d 242, 245 (3d Cir. 1998).
2. Id.
3. Id. at 242.
4. Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 73 (1st Cir. 2004).
5. Id. at 82-83.
6. Id. at 87-90.
7. AIDS Action Comm. of Mass. v. Mass. Bay Transp. Auth., 42 F.3d 1, 4 (1st Cir. 1994).
8. Id. at 5.
9. Id. at 5-6.
10. See, e.g., Gibbons v Ogden, 22 U.S.I, 203 (1824).
11. Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905).
12. Wendy E. Parmet et al., Individual Rights Versus the Public's Health-100 Years After Jacobson v. Massachusetts, 352 NEW ENG. J. MED. 652 (2005).
13. U.S. CONST. art. I, § 8, cl. 3.
14. U.S. CONST. art. I, § 8, cl. 1.
15. United States v. Butler, 297 U.S. 1, 65-66 (1936). One example is requiring all states receiving federal highway funds to raise the legal drinking age to twenty-one. South Dakota v. Dole, 483 U.S. 203 (1987).
16. U.S. CONST. amend. I.
17. Duncan v. Louisiana, 391 U.S. 145 (1968);
18. see also Fiske v. Kansas, 274 U.S. 380 (1927).
19. Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939).
20. Id. at 515-16.
21. Kaplan v. County of Los Angeles, 894 F.2d 1076, 1080 (9th Cir. 1990).
22. Id.
23. Id.
24. Id. at 1079-80. This standard is known as "strict scrutiny."
25. Id. at 1080.
26. Id. The term "non-public forum" is a misnomer because, although not an open forum, it is public space; a more accurate term would be "public non-forum." Despite this imprecision, this article will use "non-public forum" because it is the widely accepted terminology.
27. Id.
28. See id.
29. Id. The term 'limited public forum" is frequently but inconsistently used. Sometimes it is used to mean "designated public forum" and other times to mean "non-public forum." See, e.g., Ridley, 390 F.3d at 76 n.4. To avoid confusion, this article will not use the term.
30. See, e.g., Hudgens v. NLRB, 424 U.S. 507, 513 (1976) ("It is, of course, a commonplace [notion] that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state ⋯ Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself.").
31. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 561 (1980).
32. Id. at 563.
33. Recently there has been much scholarship about commercial speech and public health. The rationale behind protecting commercial speech-that its purpose is to communicate information to consumers-is becoming increasingly less true in the current atmosphere of building brands and associating products with certain lifestyles. As advertisements focus more on image, they convey less information about the products they attempt to sell. Given that the advertising of powerful industries can have a detrimental effect on public health and that advertising targeted at children has grown exponentially in recent decades, many public health advocates have asserted that commercial speech should be afforded significantly less First Amendment protection. See, e.g., Wendy E. Parmet & Jason A. Smith, Free Speech and Public Health: A Population-Based Approach to the First Amendment, 39 LOY. L.A. L. REV. 363 (2006);
34. David G. Yosifon, Resisting Deep Capture: The Commercial Speech Doctrine and Junk-Food Advertising to Children, 39 LOY. L.A. L. REV. 507 (2006).
35. See, e.g., Bose Corp. v. Consumers Union, 466 U.S. 485, 504 (1984).
36. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).
37. Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
38. Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA L. REV. 1377, 1502 (2001).
39. See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995);
40. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992);
41. Rust v. Sullivan, 500 U.S. 173, 193 (1991).
42. Helen Norton, Not for Attribution: Government's Interest in Protecting the Integrity of Its Own Expression, 37 U.C. DAVIS L. REV. 1317, 1326 (2004).
43. Id.
44. Leslie Gielow Jacobs, The Public Sensibilities Forum, 95 NW. U. L. REV. 1357, 1375 (2001).
45. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 680 (1998).
46. 203 F.3d 1085, 1089-90 (8th Cir. 2000).
47. Id. at 1086.
48. 441 F.3d 370 (6th Cir. 2006).
49. Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 795, 799 (4th Cir. 2004). While Rose found that specialty license plates were a "limited forum," Bredesen held that the plates were not a forum for expression. Bredesen, 441 F.3d at 370;
50. Rose, 361 F.3d at 786, 798. This discrepancy in forum determination in two cases that seem factually indistinguishable suggests an inherent problem with the reliability and predictability of forum analysis. See infra note 90.
51. Sons of Confederate Veterans, Inc. v. Comm'r of the Va. Dep't of Motor Vehicles, 288 F.3d 610, 611, 619-20 (4th Cir. 2002). The Fourth Circuit distinguished the two cases based on their facts. In Sons of Confederate Veterans, the state simply wished to generate revenue by selling specialty license plates, and the Sons of Confederate Veterans had designed the plate and sought to have it endorsed by the state, so the speech was private. Id. In Rose, the legislature had authorized and designed the pro-life plates specifically to promote a particular message, but motorists who chose to purchase the plate also had clearly endorsed the message, so the speech was mixed governmental and private. 361 F.3d at 793.
52. 58 F.3d 1075 (5th Cir. 1995).
53. Id. at 1079-81.
54. Id. at 1078-80.
55. Id. at 1080-81.
56. 807 F. Supp 1427, 1435-37 (W.D. Ark. 1992).
57. Id. at 1437-38.
58. Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1086 (8th Cir. 2000); see supra notes 42-43.
59. Cuffley v. Mickes, 208 F.3d 702, 703, 711 (8th Cir. 2000).
60. Id. at 705, 709-10.
61. Norton, supra note 38, at 1319-20.
62. Id. at 1338.
63. Id. at 1334-35.
64. Id. at 1339-40.
65. Id. at 1346.
66. 148 F.3d 242 (3d Cir. 1998).
67. CBM describes itself as "dedicated to the Master's use, to communicate vital, life-saving truth, correct ruinous error, expose deadly lies, and direct people to eternal life, while precious, fleeting, temporal time remains." Christ's Bride Ministries' Mission Statement, http://www.christsbride-min.com/ (last visited Dec. 10, 2008).
68. Christ's Bride, 148 F.3d at 244-45.
69. Id. at 245.
70. Id.
71. Id.
72. Id.
73. Id.
74. Id.
75. Id.
76. Id. at 246.
77. Id.
78. Id.
79. Id. at 246-47.
80. Id. at 246.
81. Id. at 257.
82. Id. at 251-52. The Third Circuit found that, although callers to the 800 number might receive information about medical malpractice attorneys, the advertisement was not commercial speech because CBM had only a very attenuated financial motive. Id. at 247.
83. Id. at 255.
84. Id.
85. Id. at 255-56.
86. Id. at 256-57.
87. Id. at 257.
88. Id.
89. Id.
90. 390 F.3d 65 (1st Cir. 2004).
91. Id. at 72-73.
92. Id. at 73.
93. Id.
94. Id. at 73, 83.
95. Id. at 77-82. The Ridley court recognized that its forum analysis differed from that in Christ's Bride. Id. at 80. It distinguished Christ's Bride because in that case SEPTA, unlike the MBTA, viewed its advertising space as a "'catalyst for change,'" the advertisement in question had been refused only after it had already run and caused controversy, and SEPTA did not have guidelines like those of the MBTA, as SEPTA '"virtually permitt[ed] unlimited access.'" Id. at 80-81 (quoting Christ's Bride Ministries, Inc. v. Se. Penn. Transp. Auth., 148 F.3d 242, 249-52 (3d Cir. 1998)). Nonetheless, the different forum determinations in these two factually similar cases, as well as legal scholars' general inability to predict which type of forum courts will find a particular setting to be, reveals the limited utility of forum analysis. Such inconsistencies only confirm Lawrence Tribe's statement, quoted in Ridley, that "whether or not a given place is deemed a 'public forum' is ordinarily less significant than the nature of the speech restriction." Id. at 75-76 (quoting LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 992 (2d ed. 1988)).
96. Id. at 82.
97. Id. at 82-84.
98. Id.
99. Id. at 85-86.
100. Id. at 86.
101. Id. at 87-90.
102. Id. at 87-88.
103. Id. at 88.
104. Id. at 89.
105. Id. at 90.
106. Id. at 84.
107. Christ's Bride Ministries, Inc. v. Se. Penn. Transp. Auth., 148 F.3d 242, 245-46 (3d Cir. 1998).
108. See supra text accompanying note 35.
109. Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n, 475 U.S. 1, 16 (1986).
110. Daniel Givelber has discussed this problem in the context of tobacco litigation, where "the jury may see 2 witnesses for the plaintiff who say cigarettes cause cancer and 2 for the defendant who say 'we don't know that,"' implying that there is a controversy when in fact the overwhelming majority of scientists believe that smoking can cause cancer. Daniel Givelber & Lori Strickler, Junking Good Science: Undoing Daubert v. Merrill [sic] Dow Through Cross-Examination and Argument, 96 AM. J. PUB. HEALTH 33, 36 (2006). Through this side-by-side juxtaposition of statements, tobacco companies are "disputing ⋯ the epidemiological equivalent of the proposition that the earth is round." Id.
111. Other public health advocates have made similar points in different contexts. For example, Richard Daynard has argued that courts do not accord enough weight to the government's interest in protecting the public from tobacco products, although he suggests that in the wake of September 11, 2001, courts might be more willing to recognize that "a major reason we need [government] is to protect the public's health." Eichard A. Daynard, Regulating Tobacco: The Need for a Public Health Judicial Decision-Making Canon, 30 J.L. MED. & ETHICS 281, 288 (2002). Likewise, Wendy Parmet has said in the context of federalism: Our courts do not remind us, perhaps because they do not remember, that federalism does not exist only for itself, that governments are instituted for purposes, and that among these purposes is the preservation of the common good, which is reflected in the ancient maxim salus populi suprema lex est [the welfare of the people is the supreme law]. If courts understood this, it might not change their holdings, but it would at least compel them to explain just how their federalism doctrines advance at least one goal of a federal republic, public health.
112. Wendy E. Parmet, After September 11: Rethinking Public Health Federalism, 30 J.L. MED. & ETHICS 201, 208 (2002) (footnote omitted).
113. Christ's Bride, 148 F.3d 242.
114. See id.
115. Id. at 252.
116. In fact, in the past SEPTA had accepted advertisements advocating adoption and providing adoption services, an advertisement that said "[K]eep Abortion Legal and Safe," and an advertisement for a pro-life hotline. Id. at 251-52. It had also accepted many controversial advertisements about sex, sexuality, and STDs. Id.
117. Id. at 242, 245-46.
118. See id. at 242, 245-46, 257.
119. Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 88 (1st Cir. 2004).
120. See infra text accompanying notes 218-35 (discussing the notable exception of medical marijuana).
121. See Ridley, 390 F.3d 65.
122. See id. at 69.
123. Id. at 86; see supra note 94.
124. Id. at 82-85.
125. Id. at 87-90.
126. Id.; see infra text accompanying notes 301-06 (discussing further First Amendment problems in Ridley).
127. 535 U.S. 234 (2002).
128. Id. at 241-42.
129. Id. at 246-50.
130. Id. at 236.
131. Id. at 236, 253-54.
132. Id. at 251-53.
133. Id. at 236.
134. Id. at 234-73. Public health is only one aspect of the Ashcroft case. Protecting children from child pornography is no doubt a government interest, but it is related to law enforcement as well as to health. Nonetheless, child abuse is widely recognized as a public health problem and, as with other health issues, both government health agencies and medical professionals are involved in its prevention and treatment.
135. Id. at 260-67 (O'Connor, J., dissenting).
136. Id. at 262-263.
137. Id. at 266-67.
138. Id. at 263-64.
139. Id. at 263-65. In his dissent, Chief Justice Rehnquist agreed with O'Connor but asserted that the entire statute could have been construed in a way consistent with the First Amendment. Id. at 267-73 (Rehnquist, J., dissenting).
140. Id. at 234 (majority opinion).
141. Id. at 263-68 (O'Connor, J., dissenting).
142. Id.
143. See id. at 234 (majority opinion); Christ's Bride Ministries, Inc. v. Se. Penn. Transp. Auth., 148 F.3d 242 (3d Cir. 1998).
144. R. George Wright, Why Free Speech Cases Are as Hard (and as Easy) as They Are, 68 TENN. L. REV. 335, 336 (2001).
145. Id.
146. Id. at 337-38.
147. Id. at 341.
148. Id. at 343.
149. Id.
150. Id. at 356-60;
151. 529 U.S. 1138 (2000).
152. Aguilar v. Avis Rent A Car Sys., Inc., 980 P.2d 846, 848-49 (Cal. 1999).
153. Id. at 848-50.
154. Avis Eent A Car Sys., Inc. v. Aguilar, 529 U.S. 1138, 1140 (2000) (Thomas, J., dissenting).
155. Id. at 1142-43.
156. Wright, supra note 138, at 357-59.
157. Id. at 357-58.
158. Id. at 356-60.
159. Id. at 357-60.
160. Kathleen M. Sullivan, Free Speech Wars, 48 SMU L. REV. 203 (1994).
161. Id. at 210.
162. See, e.g., Jess Alderman et al., Application of Law to the Childhood Obesity Epidemic, 35 J.L. MED. & ETHICS 90 (2007);
163. Parmet & Smith, supra note 32.
164. See Wright, supra note 138.
165. See Aguilar v. Avis Rent A Car Sys., Inc., 980 P.2d 846 (Cal. 1999).
166. Sullivan, supra note 153, at 214.
167. Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939).
168. Kaplan v. County of Los Angeles, 894 F.2d 1076, 1080 (9th Cir. 1990).
169. Id.
170. Bezanson & Buss, supra note 36, at 1501.
171. Id.
172. Sullivan, supra note 153, at 207.
173. Bezanson & Buss, supra note 36, at 1507-08.
174. Id. at 1504-05.
175. Id. at 1384.
176. Id. at 1491.
177. 500 U.S. 173, 177-80 (1991).
178. Id. at 178 (quoting 42 U.S.C. §§300(a)-300a-6).
179. Id. at 179-80.
180. Id. at 180.
181. Id.
182. Id. at 187.
183. Id. at 173-74.
184. Id. at 193.
185. Id. at 194.
186. Id. at 183.
187. Id. at 195.
188. Id. at 195-96.
189. Id. at 196.
190. Id. at 200.
191. Id. The Court also held that the regulations did not violate the patients' due process rights under the Fifth Amendment because the government was under no obligation to fund abortion referrals or services and patients could receive information about abortion outside the context of Title X. Id. at 201-03.
192. Id. at 207 (Blackmun, J., dissenting).
193. Id. at 204.
194. Id. at 207.
195. Id. at 213.
196. Id.
197. Id. at 214.
198. Id. at 215.
199. 505 U.S. 833 (1992).
200. Id. at 881.
201. Id.
202. Id.
203. Id. at 882.
204. Id.
205. Id. at 883-84.
206. Id. at 884.
207. Id.
208. Id. at 921-22 (Stevens, J., concurring in part and dissenting in part).
209. Id. at 917-18.
210. Id. at 933-36 (Blackmun, J., concurring in part and dissenting in part).
211. Id. at 935 (quoting Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747, 762-63 (1986)).
212. Id. at 936 (quoting Thornburgh, 476 U.S. at 764).
213. Id. at 967-68 (Rehnquist, J., concurring in part and dissenting in part).
214. Id. at 968-69.
215. See, e.g., Paula E. Berg, Lost in a Doctrinal Wasteland: The Exceptionalism of Doctor-Patient Speech within the Rehnquist Court's First Amendment Jurisprudence, 8 HEALTH MATRIX 153 (1998);
216. Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995).
217. See, e.g., Casey, 505 U.S. 833; Roe v. Wade, 410 U.S. 113 (1973).
218. See Bezanson & Buss, supra note 36, at 1397-98.
219. Rust v. Sullivan, 500 U.S. 173, 200 (1991);
220. see also id.; supra note 183.
221. Probably not. See supra note 104 and accompanying text.
222. Casey, 505 U.S. at 884.
223. Casey, 505 U.S. at 916 (Stevens, J., concurring in part and dissenting in part), 926 (Blackmun, J., concurring in part and dissenting in part);
224. Rust, 500 U.S. at 204 (Blackmun, J., dissenting).
225. See infra text accompanying notes 293-94.
226. Casey, 505 U.S. at 968-69 (Rehnquist, J., concurring in part and dissenting in part).
227. Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 795 (4th Cir. 2004).
228. Id. "The array of choices makes the license plate forum appear increasingly like a forum for private speech. As the citizen becomes less likely to associate specialty plate messages with the State, the State's accountability for any message is correspondingly diminished." Id. at 799.
229. 309 F.3d 629, 630 (9th Cir. 2002).
230. Id. at 632.
231. Id.
232. Id. (referring to the term "public interest" as defined in 21 U.S.C.A. § 823).
233. Id. at 633.
234. The federal government was permitted to revoke a doctor's license for prescribing or dispensing marijuana. Id. The Supreme Court later held that the federal government could prosecute the users and growers of medical marijuana even though their conduct was legal in California. Gonzales v. Raich, 545 U.S. 1 (2005).
235. Conant, 309 F.3d at 634-35, 638.
236. Id. at 635-36.
237. Id.
238. Id. at 638.
239. Id. at 634, 636-37.
240. Id. at 634.
241. Id. at 636.
242. Id. at 637.
243. Id.
244. Id. at 638.
245. Id. at 639.
246. Id. The court also found that professional regulation was traditionally the province of the states and that, as a federal court, it should minimize conflict between federal and state law to the extent possible. Id.
247. See generally Planned Parenthood Minn., N.D., S.D. v. Rounds, 467 F.3d 716 (8th Cir. 2006), vacated, 530 F.3d 724 (8th Cir. 2008).
248. Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1467 (8th Cir. 1995).
249. Rounds I, 467 F.3d at 719-20.
250. Id. at 720.
251. Id.
252. Id.
253. Id. at 723-24
254. Id. at 722-23
255. Id. at 723
256. Id. at 724-25
257. Id. at 725-26
258. Id. at 725
259. Id. at 726
260. Id. at 725-26
261. Id. at 727.
262. Conant v. Walters, 309 F.3d 629, 634, 636-37 (9th Cir. 2002);
263. see supra notes 230-31.
264. Id. at 636-38.
265. Rounds I, 467 F.3d at 722-23;
266. see supra notes 242-47.
267. Id. at 725-26.
268. Id. at 725.
269. Planned Parenthood Minn., N.D., S.D. v. Eounds, 530 F.3d 724 (8th Cir. 2008).
270. Id. at 731-32.
271. Id. at 726-28 (quoting S.D.C.L. § 34-23A-10.1; Ball Aff. H 2.). In its analysis of the truthfulness of the state messages, the court focused on the "terminate the life of a whole, separate, unique, living human being" language and did not directly address the required warnings about psychological distress, including depression and suicide. In the midst of its discussion of the former, it approvingly quoted Gonzales v. Carhart: "Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort ⋯ Severe depression and loss of esteem can follow." Id. at 734 (quoting Gonzales v. Carhart, 550 U.S. 124 (2007)). The Eighth Circuit failed to recognize that the Supreme Court's admission in Gonzales suggests that at least some of the South Dakota law's required language was based on conjecture rather than scientific data. While it is likely true that some women regret having an abortion or suffer psychological consequences from terminating a pregnancy, some measure of the percentage of patients so affected would be highly relevant to a First Amendment analysis of whether a warning about serious psychological consequences of the procedure (unaccompanied by information about the likelihood of occurrence) is truthful and non-misleading. As currently worded, the South Dakota law seems to imply that severe psychological consequences are common. There is evidence that most women do not suffer long-term psychological damage from having an abortion. See, e.g., Anne C. Gilchrist et al., Termination of Pregnancy and Psychiatric Morbidity, 167 BRITISH J. PSYCHIATRY 243 (1995) ("Rates of total reported psychiatric disorder were no higher after termination of pregnancy than after childbirth.");
272. Brenda Major et al., Psychological Responses of Women After First-Trimester Abortion, 57 ARCHIVES GEN. PSYCHIATRY 777, 780-81 (2000) (finding that in a study of abortion patients two years after the procedure, most women did not suffer psychological consequences; the minority who did tended to have a prior history of depression). Other studies have shown a correlation between abortion and poor mental health.
273. See, e.g., David M. Fergusson et al., Abortion and Mental Health Disorders: Evidence from a 30-year Longitudinal Study, 193 BRITISH J. PSYCHIATRY 444, 444 (2008) ("[A]bortion may be associated with a small increase in risk of mental disorders.");
274. Kaeleen Dingle et al., Pregnancy Loss and Psychiatric Disorders in Young Women: An Australian Birth Cohort Study, 193 BRITISH J. PSYCHIATRY 455 (2008) (concluding that pregnancy loss- both abortion and miscarriage-increased substance abuse and affective disorders in young Australian women). As at least one author has pointed out, it is extremely difficult to design a study of post-abortion psychological problems that will produce accurate results because of multiple confounding variables.
275. Brenda Major, Psychological Implications of Abortion - Highly Charged and Rife with Misleading Research, 168 CAN. MED. ASSOC. J. 1257 (2003).
276. Cf. Nancy F. Russo & Jean E. Denious, Violence in the Lives of Women Having Abortions: Implications for Practice and Public Policy, 32 PROF. PSYCHOL. 142 (2001) (finding that abortion was not related to mental health problems when researchers controlled for variables like history of abuse and partner characteristics; mental health problems may be incorrectly attributed to abortion rather than to underlying violence in abortion patients' lives).
277. Planned Parenthood Minn., N.D., S.D. v. Sounds, 530 F.3d 724, 735-36 (8th Cir. 2008).
278. Id. at 736.
279. Id. at 737.
280. Id. at 740-41 (Murphy, J., dissenting).
281. Id. at 745.
282. Id. at 744.
283. Id. at 743.
284. Id. at 746.
285. Id.
286. Id. at 747.
287. Id. at 753.
288. Id. at 735-36 (majority opinion).
289. Rounds I, 467 F.3d at at 722-24;
290. see generally Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724 (8th Cir. 2008).
291. Rounds II, 530 F.3d at 740-46.
292. 524 U.S. 569, 569 (1998).
293. Id.
294. Id. at 571.
295. Bezanson & Buss, supra note 36, at 1460.
296. Id. at 1460-61.
297. Id. at 1462.
298. Id.
299. Rust v. Sullivan, 500 U.S. 173, 177-80 (1991).
300. Id. at 214 (Blackmun, J., dissenting);
301. see supra note 189.
302. Bezanson & Buss, supra note 36, at 1397.
303. Also, it would be useful to determine whether the amount of burden on the counter-speaker should affect the constitutional analysis; should some very high level of burden be considered constitutionally equivalent to banning counter speech outright? The Rust situation is also further complicated by the fact that the government is denying patients access not just to information about other options, but to information about an option that is itself a constitutionally protected right. But see supra note 183.
304. Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 882 (1987). Sunstein suggests that this concept originated in the famous Lochner case (now overturned) in which the Court struck down a New York law limiting the working hours of bakers because it interfered with the right to contract and there was no direct relationship between the law and the state's health objective. Lochner v. New York, 198 U.S. 45 (1905).
305. Sunstein, supra note 284, at 914-15. This also invokes Kathleen Sullivan's point, discussed supra, that if social conditions are unjust it does not follow that the government should be the entity specially empowered to remedy the injustice. See supra text accompanying note 158.
306. GEORGE STIGLER, MEMOIRS OF AN UNREGULATED ECONOMIST 8 (1988).
307. This why some commentators claim that political accountability to voters in general is an illusion. It also has serious implications for commercial speech because the government is unlikely to regulate the advertising of an industry that has "captured" it. See, e.g., Yosifon, supra note 32.
308. MARION NESTLE, FOOD POLITICS 51-66 (2003).
309. Jon Hanson & David Yosifon, The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture, 152 U. PA. L. REV. 129, 218 (2003).
310. Alderman et al., supra note 155, at 102;
311. see also Hanson & Yosifon, supra note 289, at 220-23.
312. In their work, Bezanson and Buss use the term "deception" to mean "avoid [ing] fully disclosing that the government is behind the communication in question." Bezanson & Buss, supra note 36, at 1491. This article will use the term to describe a situation in which the government withholds information when developing policy or communicating messages to the public.
313. Leonard H. Glantz, Control of Personal Behavior and the Informed Consent Model, in KENNETH K. WING ET AL., PUBLIC HEALTH LAW 507, 511 (2007). As an example, Glantz asks, "[SJhould the goal of public health be to ensure that nobody smokes cigarettes, or should the goal be to ensure that everybody knows the risks of cigarette smoking ⋯ ?" Id. This example seems out of place in this context because smoking is addictive. When addiction is involved, people often cannot make their behavior conform to their knowledge, so a public health focus on behavior rather than education seems much more appropriate.
314. Daniel I. Wikler, Persuasion and Coercion for Health: Ethical Issues in Government Efforts to Change Life-Styles, 56(3) HEALTH & SOC'Y. 303, 328 (1978).
315. Id.
316. Id. at 329.
317. Glantz, supra note 292, at 511.
318. Wikler, supra note 293, at 316.
319. Id.
320. Glantz, supra note 292, at 508.
321. Id.
322. Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65 (1st Cir. 2004).302. Id. at 87-88.
323. Using marijuana for specific medical purposes, as in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), could enhance health, but this type of use was not at issue in Ridley, 390 F.3d 65.
324. Ridley, 390 F.3d at 73.
325. The government is not the only public health speaker with a motive to deceive in this context. For example, the American Cancer Society's oft-quoted statistic that 1 in 8 women will get breast cancer is based on the risk that a female infant will get the disease at some point in her lifetime. WlNG ET AL., supra note 292, at 516. In comparison, the actual risk for women ages 30-39 is 1 in 229 and for women ages 60-69 is 1 in 26, leading some critics to charge that the society was manipulating the statistic to sound more alarming. Id. at 517. The American Cancer Society maintained that it was doing a public service by calling patients' attention to the disease, thus encouraging prevention and screening. Id.
326. However, deception about one issue may decrease the government's credibility about other issues, potentially reducing its motivation to deceive. See infra text accompanying note 309.
327. Rust v. Sullivan, 500 U.S. 173, 216 (1991) (Blackmun, J., dissenting) (quoting 42 C.F.R. § 59.2 (1990)).
328. Also, justifications for public health interventions are often criticized as being paternalistic, a problem not faced by First Amendment absolutists.
329. Parmet & Smith, supra note 32, at 406-07 ("[B]road First Amendment protection may be supportive, if not necessary, for the development of an informational environment that safeguards public health ⋯ [In the case of the AIDS epidemic], the broad protections offered by the First Amendment helped to ensure the availability of information that the public needed ⋯").
330. Id. at 391.
331. See, e.g., JAMES H. JONES, BAD BLOOD: THE TUSKEGEE SYPHILIS EXPERIMENT (1993) (describing a forty-year federal government project beginning in the 1930s that studied the progression of syphilis in a group of African-American men who were left untreated for decades, even after antibiotics became the widely available standard of care). President Clinton later apologized to the study survivors for the government's behavior. Press Release, The White House, Remarks by the President in Apology for Study Done in Tuskegee (May 16,1997), available at http://www.cdc.gov/tuskegee/ cUntonp.htm.
332. See, e.g., DAVID J. ROTHMAN & SHEILA M. ROTHMAN, THE WILLOWBEOOK WARS (1984) (discussing how mentally retarded children in a New York State institution were deliberately infected with hepatitis in the 1960s).
333. See, e.g., NATHAN HERSHEY & ROBERT D. MILLER, HUMAN EXPERIMENTATION AND THE LAW 6-7 (1976) (describing a federally funded study in 1963 in which live cancer cells were injected into indigent elderly patients without their knowledge or consent).
334. E.g., Buck v. Bell, 274 U.S. 200 (1927) (authorizing forced sterilization of Carrie Buck, a "feeble-minded" woman). Carrie Buck was in fact of normal intelligence. In this case "feeble-minded" implied sexually promiscuous, but Buck was pregnant as the result of a rape. In the half century following this case, the U.S. government involuntarily sterilized more than 60,000 Americans. Paul A. Lombardo, Three Generations, No Imbeciles: New Light on Buck v. Bell, 60 N.Y.U. L. REV. 30, 31, 53-54 (1985).
335. For example, the media has reported that due to the legacy of incidents like Tuskegee, many African-Americans do not trust the government to protect their health. JONES, supra note 311, at 220. As a result, some African-Americans believe that HIV/AIDS and associated preventive measures "are part of a conspiracy to wipe out the black race." Id. at 221.
336. George J. Annas, The Statue of Security: Human Rights and Post-9/11 Epidemics, 38 J. HEALTH L. 319, 341 (2005).
337. Id.
338. 42 F.3d 1, 3 (1st Cir. 1994).
339. Id.
340. Id. at 3-4.
341. Id. at 4.
342. Id.
343. Id. at 4-5.
344. Id. at 5.
345. Id. at 5-6.
346. Id.
347. Id. at 5.
348. Id. at 8-9.
349. Id. at 8-9.
350. Id.
351. Id. at 9-13.
352. Id. at 10. In addition, the court noted that the "Fatal Instinct" advertisements were less protected under the First Amendment because, unlike AAC's advertisements, they were commercial speech. Id. Neither the parties nor the court appeared to recognize that this film was a parody of other popular movies such as "Basic Instinct" and "Fatal Attraction" and thus the sexual content of the advertisements was meant to be tongue-in-cheek.
353. Id. at 12.
354. See id. at 11-12.
355. Id. at 13.
356. Id.
357. Nat'l Abortion Fed'n v. Metro. Atlanta Rapid Transit Auth., 112 F. Supp. 2d 1320 (N.D. Ga. 2000).
358. Id. at 1324.
359. Id. at 1326.
360. Id.
361. Id.
362. Id. at 1327.
363. Id.
364. Id. at 1327-28.
365. AIDS Action Comm. (1st Cir. 1994). of Mass. v. Mass. Bay Transp. Auth. ,42 F.3d 1, 5-6
366. Ridley v. Mass. Bay supra note 101. Transp. Auth., 390 F 3d 65, 84 (1st Cir. 2004);
367. see supra note 101.