Alderman — Volume 57, Issue 1

Alderman examines how courts should evaluate situations involving both public health protection and First Amendment free speech rights through examination of concrete scenarios. A young woman at a subway station sees an abortion advertisement warning about health risks; a 15-year-old notices a bus advertisement declaring marijuana is not cocaine or heroin; couples see subway advertisements asking about condom use and safe sex. These scenarios illustrate tensions between government's two-century duty to protect public health and the First Amendment's protection of free speech. Courts often perform First Amendment analysis without fully considering public health implications. Alderman identifies three general categories of health-speech cases. The first presents direct conflicts where the First Amendment impedes government's duty to protect public health—such as restrictions on abortion advertising. The second involves government resistance to misleading health claims despite truthfulness, such as marijuana advertisements courts found misleading. The third involves government restrictions on unrelated health speech to avoid controversy or offense, such as condom advertisements. Alderman argues that judges often disregard government speech effects on public health, and that scientific information difficulties make listeners turn to trusted sources. The article proposes that courts consider public health ramifications in free speech analysis by examining how factors affect citizens' ability to make informed decisions, integrating public health concerns into established free speech doctrine without elevating public health above free speech.

Topics: First Amendment · Constitutional Law · Administrative Law

Keywords: First Amendment · public health · free speech · government speech · health promotion · commercial speech · abortion · marijuana