Nanny State

Public Health vs. Free Speech

|

Writing in The New England Journal of Medicine about the tobacco ad restrictions that a federal judge overturned on First Amendment grounds last week, Ronald Bayer and Matthew Kelly wonder why freedom of speech should be allowed to stand in the way of public health. That is not quite the way Bayer and Kelly, both scholars at Columbia University's Mailman School of Public Health, put it. Here is how they put it:

Why does the United States alone among advanced liberal democracies extend to advertising exacting protections more commonly afforded to political, social, and cultural expression? How did we come to believe that the exchange of commercial appeals in the marketplace of goods and services should be equated with free exchange in the marketplace of ideas? Are our freedoms really secured by a constitutional doctrine that would limit our capacity to inhibit the promotion of toxic goods? This is an opportune moment to reflect on these questions and their implications for the relationship between public health goals and the rules that should be foundational in a democracy.

Since the distinction between commercial and noncommercial speech, which has no basis in the text of the First Amendment, was invented (then partly repudiated) by the Supreme Court, a better question might be why money changes everything. As federal appeals court judge Alex Kozinski and his former law clerk Stuart Banner noted in their 1990 evisceration of the commercial speech doctrine, "In a free market economy, the ability to give and receive information about commercial matters may be as important, sometimes more important, than expression of a political, artistic, or religious nature." (Kozinski and Banner demolished the other arguments for commercial speech's second-class status as well, and the courts have been moving in their direction since then.) The argument that advertising does not deserve full First Amendment protection ultimately resolves into the argument that pernicious speech does not deserve full First Amendment protection, as reflected in this testimony from the American Public Health Association (quoted with seeming approval by Bayer and Kelly):

Cigarettes are killing us….Advertisements should be to promote good healthy products and not products that kill. Cigarette companies practice false advertising at its worst: deceptively offering freedom while actively inducing bondage.

By all means, let us talk only about good healthy things, and let us have the government enforce that rule. What could possibly go wrong? It is no coincidence that the liberal democracies where advertising is subject to stricter limits (countries that Bayer and Kelly seem to view as more enlightened) also tend to be countries where other kinds of speech—such as criticism of wealthy people, symbols of certain ideologies, and pictures that offend members of certain ethnic or religious groups—are subject to stricter limits.

Leaving aside the debate about whether tobacco advertising actually boosts consumption, as opposed to shifting brand preferences (and the debate about whether the government has any business trying to stop adults from smoking), there's no question that some forms of speech have bad consequences. But once you accept the idea that one kind of speech is so harmful that it should not be tolerated, it is hard to find a principled stopping place. Even if you want to ban just one form of expression—cigarette ads, say, or Nazi memorabilia, or anti-Muslim hate speech—other people are bound to have examples of their own.

[Thanks to Linda Stewart for the tip.]

NEXT: Obama's Spending Cuts. No, Really!

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Public Health vs. Free Speech

    Uh . . . Are these two really contradictory?

  2. “””Are our freedoms really secured by a constitutional doctrine that would limit our capacity to inhibit the promotion of toxic goods?”””

    Yes.

    1. Indeed. It seems a silly question to ask in a society where we “Rock The Vote”. After all, only slightly less toxic than cyanide is the Republicrat.

  3. Why does the United States alone among advanced liberal democracies extend to advertising exacting protections more commonly afforded to political, social, and cultural expression?

    Because the more “advanced” liberal democracies are really collectivist tyrannies in disguise, whereas the US still gives at least a token shit about the protection for individual’s rights, including free speech?

    1. Also, because the US is alone is recognizing that commercial speech is political, social and cultural expression.

  4. Let’s censor The New England Journal of Medicine just so they’ll know how it feels.

    1. Interestingly enough, I was thinking that if they support the idea of limits on tobacco adverts under the auspices that these are “commercial” speech, they should similarly support in kind restrictions on anti-tobacco campaigns since it is nothing other than “commercial” speech against the product (namely, attempting to acheive a commercial end, the reduction of cigarette consumption). If the underlying product is the same, it follows that the restrictions should flow both ways, those adverts supporting cigarette consumption and those adverts opposing it. Somehow, I don’t think that’s a trade-off Bayer and Kelly would be willing to make. Although, as a smoker I’d love it. I get a little sick of being told I’m gonna die everyday on TV and radio.

    2. Interestingly enough, I was thinking that if so-called “commercial” speech advertisments for tobacco are subject to prohibition, why not anti-tobacco adverts as well? I mean, the underlying product that the adverts address is the same, and so it follows that any advert either supporting or opposing tobacco consumption should be similarly restricted. Somehow, I doubt Bayer and Kelly would condone of such a situation.

    3. I’ll grant that these doctors mean well, but they have zero understanding of the freedom of speech. They also indulge in the fantasy that people smoke/drink/etc because commercial speech is just so damn convincing and never for a moment think that smokers light up because they enjoy doing so and have accepted the risks.

      If they decided what speech is legal and what isn’t, we would have strong grounds for censoring the shit out of NEJM considering all of its ridiculous and often misleading drug advertisements.

  5. What could be more damaging to the US, and what could be more ultimately based on cash money changing hands, than public defense of capitalism itself. Disagreement with Progressivism is therefore harmful commercial speech and should be banned.

  6. Where do people learn to think like this? It makes my mead hurt just trying to understand their congnative dissonence.

    Is there a ‘Lil Facists Day Care Center in New England that has slipped notice all these years?

    1. Yes, I believe its referred to as Harvard by the natives.

      1. Bravo, Sudden, bravo!

        1. You should split the kitty with me, Sudden. That was too easy of a set up.

    2. It’s called the public school system and it’s in every major city, not just those in NE. I would include pre-school through graduate school.

    3. More like Lil Collectivists Government Indoctrination Camps, aka public schools. Fascism, or at least the non-liberal iterations, doesn’t get a lot of love in Teh Camps.

  7. The cosmopolitan sees that America is different from all other liberal democracies in the world, and is ashamed.

    The patriot sees that America is different from all other liberal democracies in the world, and is proud.

    I don’t know about you, but I’m putting my stake in with the patriots.

    1. We’re screwed up, but we’re less screwed up than most other places. Sorry.

    2. The cosmopolitan Muslim extremist sees that America is different from all other liberal democracies in the world, and is ashamed.

    3. Don’t knock cosmopolitans. They are traditionally more tolerant of differences. I think the word you want is more like Europhile.

      1. You and I must not know the same cosmopolitans. The ones I know are totally tolerant of pelvic differences (ie, homosexuals, bisexuals, transsexuals, intersexuals, contrasexuals, etc) but if you mention the gold standard you may as well be wearing a yellow star.

  8. “Cigarettes are killing us”

    As are automobiles, alcohol, food and oxygen.

    1. Don’t forget carbon dioxide

      1. Carbon dioxide can kill you, but not as fast as water can.

    2. lets not forget the biggest killer of all …. time.

      1. It’s not time, it’s entropy.

        1. Every time you talk about entropy, the universe dies just a little bit more.

          1. Yeah, entropy is like that.

            1. You did it again! Stop doing that!

              You’re killing the quarks!

              1. every time I clap my hands a child in africa dies of starvation

                1. Then stop clapping your hands you murderer!

        2. entropy wouldn’t get very far without time

          1. Yes, but time alone isn’t the problem. We could have time with entropy in another universe, after all. Shoot, if entropy were reversed time would have a much different meaning, wouldn’t it?

            1. Shoot, if entropy were reversed time would have a much different meaning, wouldn’t it?

              You’re probably thinking that somewhat facetiously, but there is some real work on the physics of time, and it is pretty mindblowing.

    3. “Cigarettes are killing us”

      Cigarettes are not killing me. Nor my wife, daughter, my extended family, most of my friends, or most of the people I know.

      So that, as they say, f***s that little theory.

      1. That’s only because all of the super-duper liberty fighting politicians around the country have outlawed cigarette smoking in “public” establishments like bars and restaurants. Otherwise, because of everyone’s lack of free will and ability to make responsible decisions, most people would end up dead from second-hand smoke. Freedom for all.

      2. hearing “us” used in this context has started annoying me recently. The concept of the individual is meaningless when the speaker includes in a set of people individuals who don’t fit the defining characteristic of the set. I propose substituting “me” from now on, to accurately express the collectivist sentiment of the speaker.

  9. “Congress shall make no law…”

    The problem is the constitution needed to be a little less vague on this point. 🙂

    1. It’s more of a brevity problem. Put a period after “law” and a lot of wickedness goes away.

        1. I’m not so sure, so far SCOTUS can’t seem to define infringed.

  10. Is there a ‘Lil Facists Day Care Center in New England that has slipped notice all these years?

    Yes. It’s too big to see. It’s New England.

    1. Hey! New England is more than just Mass.

    2. As if wherever you’re from isn’t chock full of morons just like NE. That’s the problem, you see: they’re everywhere.

      1. I live in Texas. We have an entirely distinct breed of moron down here, not ones just like New England.

        Still just as many of them, tho’.

        1. All types are everywhere.

          You might not think that the NYC area is loaded with rednecks, until you go to a ZZ Top concert at MSG.

  11. It’s not that hard to regulate commercial speech. I don’t know what they’re bitching about. Too free here?

  12. Old saw about commercial speech: The left hates it because it’s commercial, the right hates it because it’s speech.

  13. Is the concept of an individual owning and controlling thier own life that difficult to understand?

    The answer is no. It’s not difficult to understand. What is difficult is dealing with the ego of others that for various reasons, wish to take that away from the individual.

    We suck as a race.

    1. We suck as a race

      I’ve been telling you guys that for quite some time now.

      1. Damnit, you made me spit chamomile chai all over my new Mac monitor 🙁

    2. It’s actually a very difficult concept to understand if you’ve been indoctrinated into the “government does good, so let’s have more of it” mindset.

      Sort of like how E=MC2 is really hard to understand, until you toss out your preconceptions and realize that mass and energy as different forms of the same thing.

  14. The government should infiltrate Columbia University’s Mailman School of Public Health and try to undermine the bizarre thinking of people like Bayer and Kelly.

    1. Ok, let’s set up a second government. One side Democrat/Liberal, the other Republican/Conservative. Let them spend time infiltrating the other side and tending their flocks of sheep. Hopefully it would keep them very busy.

      Leave us the fuck alone and let us live our lives in relative peace.

    2. Brilliant!

  15. What’s depressing about shit like this is that it’s a harsh reminder that we will never, ever get to stop guarding, struggling, and fighting against endless collectivist scumfucks who would control every aspect of our lives.

    1. That is why we have more guns than them.

      1. You’re not going to have more guns than the people who enforce their will. They will make sure of that one way or another.

        1. I’m trying my best. You do your part and buy more guns, bus driver dude.

          1. If I were a bus driver in this town you bet I’d have an arsenal under my seat. Probably a self-destruct switch under the back chassis a la Mad Max.

    2. True, but if we are fortune in our time on this planet, we’ll only have to use words and reason. Most have paid with blood.

      1. Reason does not work well against emotion and irrational thought. Add in mob mentality and quite frankly, submissive minds, and you have an enemy that is incredibly difficult to defeat or keep at bay.

        It seems like we can pay easier with blood than we can with intelligence and tolerance.

        1. Don’t forget the +50 SMUG and +75 ELITIST powers that get all this started to begin with.

        2. Mark Twain said it nicely:

          “Monarchies, aristocracies, and religions are all based upon that large defect in your race – the individual’s distrust of his neighbor, and his desire, for safety’s or comfort’s sake, to stand well in his neighbor’s eye. These institutions will always remain, and always flourish, and always oppress you, affront you, and degrade you, because you will always be and remain slaves of minorities. There was never a country where the majority of the people were in their secret hearts loyal to any of these institutions.”

          1. that’s a great quote warty

  16. I’ve been buying pills from the TV and the Internet that were suppose to be making my penis larger. I think they should tell you in the commercial that it takes a few years. I’ve been thinking about buying them pills that make my hands bigger.

    I also seen on the TV where if I get a certain kind of rum, me and all my hip and cool friends can take our boats out and make us an island.

    I admire the way them fellas on the TV get to go to ball games, go fishing, and ride bicycles just because they take Flomax.

  17. Hell, politicians kill more people than cigarettes do, and they let those bastards talk all of the time.

    1. I actually started clapping after I read this.

      Bravo EES. That is an awesome line.

  18. Threadjack:

    http://firstpersontetris.com/?tetris

    I think Im going to hurl.

    1. I’m with you. But in a good way. Or as good as motion sickness can get.

      1. On fark, it was suggested not to try while drunk. That is clearly exactly backwards.

        1. Idea for a new viral video craze. Drunk and high people being video taped playing First Person Tetris.

  19. Stress has been shown to have a negative impact on a person’s health. Listening to Totalitarian fucktards like Bayer and Kelly makes me very stressed. Ergo it is completely legitimate to slap some duct tape over their mouths so they can’t make me die slowly anymore.

  20. I’d like to ban any speech by Roland Emmerich.

    That is all.

    1. Also: Michael Bay, Uwe Boll, or Will Fucking Smith.

      1. I will fight you.

      2. Ignorance talking here…what did Will Smith ever say? As far as I know he is apolitical. Did I miss something?

        You did NOT SHOOT that Green…

      3. You’re going to be sorry when Bay’s next action film is populated exclusively by exploding CGI mimes.

        1. If Bay is making mimes explode, I will have to give him some of my money. Although I will give him more of it if they are real live mimes.

  21. Even if you want to ban just one form of expression?cigarette ads, say, or Nazi memorabilia, or anti-Muslim hate speech?other people are bound to have examples of their own.

    Carpet humping guy…

  22. But once you accept the idea that one kind of speech is so harmful that it should not be tolerated, it is hard to find a principled stopping place.

    That’s a pretty broad statement, given that all kinds of harmful speech is illegal and Constitutionally accepted as such, including immediate harm and direct harm.

    1. Please note that the legislature and courts have not yet found that stopping place.

    2. Its hard to find a stopping place, not impossible.

      1. If the behavior of the political class over the past 100 years or so is any guide, I’d say it’s impossible in practical terms.

      2. If they do find it they’ll just lose it.

    3. That’s a pretty broad statement, given that all kinds of harmful speech is illegal

      Err, examples?

      1. It’s illegal to make statements for the express purpose of causing a panic or a riot.

        It’s illegal to verbally threaten someone with physical harm.

        It’s illegal to verbally plan to commit a crime.

        1. No, it’s actually perfectly legal to plan to commit a crime until you take that first overt act. Which any prosecutor worth his paycheck can find, but technically, you can discuss the crime all day long with no legal repercussions.

          1. If I tell a known hit-man that I will give him $5000 to kill someone, that is conspiracy to murder. And it is just speech.

        2. I can verbally threaten people with harm all day long and not break any laws, MP. I am aware of no federal or state statute that outlaws threats of violence generally.

          Although threats in certain defined circumstances are illegal (I’m thinking debt collection here).

          1. If you pick a random person out of the phone book, call them up and say you’re going to come to their house and kill them, you’ve committed a crime, whether there is an apparent motive or not. It would probably fall under aggravated harassment, but it’s definitely illegal.

          2. “”I can verbally threaten people with harm all day long and not break any laws,””

            Spousal abuse?

      2. Fraud, libel, slander, threats, copyright violation, disclosure of classified information, obscenity, … and that’s before we get to all the conspiracy to commit ______ crimes.

        1. Actually, we could easily dispense with our libel and slander laws, so if you want to argue that they are outlawed by a strict reading of the 1st Amendment I’d be all for it. You are not entitled to the good opinion of any person. Opinion is not a tangible good.

          The obscenity exception is utterly and completely an invention of cowardly and corrupt judges who decided to just make shit up, and we can easily do without it.

          I don’t believe that the state has any Constitutional authority to outlaw the disclosure of classified information by anyone except its own employees, with the exception of the minutes of proceedings of Congress.

          In fraud and copyright violation, it’s not the speech that is outlawed. I can walk around claiming to have a cure for cancer all I want and it’s not fraud. It’s only fraud if I let you pay for it and then fail to deliver a cure for cancer. Fraud isn’t about speech, it’s about failure to perform. And before the DMCA copyright violation was almost universally about the exchange of money or goods and not just the speech involved.

          Conspiracy, as has been pointed out above, is not a crime until an overt act in furtherance of the conspiracy is taken. Because it’s not really about the speech element of what’s taken place, but about the criminal enterprise.

  23. Cigarettes are killing us

    The other day, after finally able to escape from my gun chasing me around shooting at me, a damn cigarette jumped up into my lips. Well, I felt like I had no other choice but to light it up and smoke it. I made the best of the situation and fantasized about hot-boxing a stogie with Big O outside the Oval Office.

  24. A quick question:

    Under the existing anti-commercial-speech tyranny, do you have to actually be personally selling the product in question for your speech to be considered commercial?

    In other words, if I am not a cigarette company owner personally, and I want to run ads saying, “Cigarette smoking is cool and I think everyone should try it – especially you young people! Newports are particularly good if you like minty menthol goodness!” can anyone stop me using the diminished standard for protection of commercial speech? Or would that speech get the full protection afforded, say, art criticism?

    1. It’s stuff like this that keeps me playing Mega Millions. If you’re going to have $50 million from nothing but luck, you really owe it to yourself and others like you to promote crazy ideas through TV commercials.

      1. Dude, I would need about a billion dollars for all the crazy ads I would want to run.

        I’d basically read Radley’s column every morning and then pick up the phone to call my crazy ad guy.

        The shit that would be on the airwaves right now about Martha Coakley’s record as a prosecutor and as Attorney General alone would turn that bitch’s hair white.

        And I would definitely run cigarette ads for companies in which I had no interest and tell the FDA, “Fuck you, come and get me.”

  25. “Even if you want to ban just one form of expression?cigarette ads, say, or Nazi memorabilia, or anti-Muslim hate speech?other people are bound to have examples of their own.” But those other people are bad people who only want to ban “good speech”.

  26. Why do people give a fuck about “Public Health”? Isn’t it impossible to evaluate such a thing since your preference for sacrificing short-term pleasures for long-term benefits might be different than other people?

    Oh yeah, we’re forced to pay for the health of everyone else by law.

  27. Why should essays by Ronald Bayer and Matthew Kelly be considered protected speech? They advocate laws that undermine the Constitutional Order of the Republic which is a far more grievous matter than whether or not the life span of a certain demographic of people averages are shortened to averages similar to what was the common for the entire populace just forty years ago.

    These men deserve the public stockades in a village full of feces throwing monkeys for their transgressions against us, the outstanding citizens of this nation!

  28. The existence of these cunts is a product that kills.

    Can we do away with that product?

  29. The problem is liberal scientists, of which public health professionals are the worst. They share a poor understanding of the constitution and individual rights with their fellow liberals, combine that with the True Believer mindset described by Eric Hoffer. This leads to a lot of moments where they acknowledge the First, then turn right around and say “but surely The Truth(tm) of public health research trumps the so-called rights of evil corporations.”

    Personally, I feel that any researcher receiving public funds should be required to take and pass a remedial and purposefully demeaning course in free speech, and to sign an enforceable contract with heavy penalties for advocating against constitutional rights on the basis of their research.

    1. Fat lot of good that would do. We already have 535 dudes in D.C. who take an oath pledging to uphold the Constitution. How’s that working out?

      1. I like to use the 546 number, since all of them take the same oath.

  30. for a public health official he is pretty fucking stupid, lacking any understanding of toxicity. how do you determine a product is “toxic” any reasonable person would realize toxicity is dependent on dose. are we to assume that 1 puff will cause serious health problems? like Paracelsus said, “All things are poison and nothing is without poison, only the dose permits something not to be poisonous.”

  31. Why do people give a fuck about “Public Health”? Isn’t it impossible to evaluate such a thing since your preference for sacrificing short-term pleasures for long-term benefits might be different than other people?

    If you live long enough and have any friends, there’ll be someone you knew and liked who did something that increased the risk of dying from Foo who dies a slow and painful death from Foo. And you won’t like it.

    Worse, if you go looking for victims of Foo, you find them. And many of them will have done the same stupid thing.

    The next step is to think “If people wouldn’t do this stupid thing, they wouldn’t die of Foo.” Which is only true in a statistical way, but is very convincing none-the-less.

    So you go on down the street until you meet a couple of rough and youthful counter culture type engaged in Foo promoting activity and you tell them “Hey you shouldn’t do that, or you’ll die of Foo. And trust me, you don’t want that.”

    TattooedAndBepiercedRoughYouth1: Live fast, die young, and leave a beautiful corpse, man.

    TattooedAndBepiercedRoughYouth2: I’ve got something to say! It’s better to burn out, then to fade away!

    At which point you realize that there are limits to what you can accomplish with simple persuasion, and you either accept that people are stupid, or you decide that the There Should Be A Law ™ and turn in to a Community Activist.

  32. I just smoked another Marlboro. I hope I’m not killing all you Reason posters with second-hand smoke, cause I like you. And I promise not to talk about it any more, lest I be accused of “conspiracy to commit advertising of the evil death weed.”

    Or maybe I’m just one of those stealth posters from Harvard out to undermine your little Libertarian cult from the inside….mwaahahahahahaha!

    1. hmm – apparently doesn’t like apostrophes

  33. Link on “criticism” is bad, above. Should be this one.

  34. Agreed. The key point that hasn’t been made is that if commercial speech is restricted, that will unfairly favor some market participants over others. Especially when it comes to the medical establishment, I could see innovative but unorthodox treatments being restricted from being advertized.

    IMO, Regulations are inherently conservative in nature. The whole point seems to be to restrict the market from evolving in directions that might be risky. As a result, they end up reinforcing established players and established institutions and inhibiting innovation.

  35. truth,,,,obama people have no idea of the extent to which they have to be gulled in order to be led.”
    “The size of the lie is a definite factor in causing it to be believed, for the vast masses of the nation are in the depths of their hearts more easily deceived than they are consciously and intentionally bad. The primitive simplicity of their minds renders them a more easy prey to a big lie than a small one, for they themselves often tell little lies but would be ashamed to tell a big one.”
    “All propaganda must be so popular and on such an intellectual level, that even the most stupid of those towards whom it is directed will understand it. Therefore, the intellectual level of the propaganda must be lower the larger the number of people who are to be influenced by it.”
    “Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way around, to consider the most wretched sort of life as paradise.”pelosi don’t see much future for the Americans … it’s a decayed country. And they have their racial problem, and the problem of social inequalities …obama feelings against Americanism are feelings of hatred and deep repugnance … everything about the behaviour of American society reveals that it’s half Judaised, and the other half negrified. How can one expect a State like that to hold TOGTHER.They include the angry left wing bloggers who spread vicious lies and half-truths about their political adversaries… Those lies are then repeated by the duplicitous left wing media outlets who “discuss” the nonsense on air as if it has merit? The media’s justification is apparently “because it’s out there”, truth be damned. STOP THIS COMMUNIST OBAMA ,GOD HELP US ALL .THE COMMANDER ((GOD OPEN YOUR EYES)) stop the communist obama & pelosi.((open you eyes)) ,the commander

  36. Life just like shoes at our feet. Only wear comfortable, it can help to move forward for you. Believe me, if you want to achieve something in life, you need a pair of good shoes.

  37. to consider the most wretched sort of life as paradise

Please to post comments

Comments are closed.