Except for the government.  Because people weren’t behaving correctly.  That was still 25 gallons a minute being poured onto the street, and the Fire Department had better things to do than open hydrants and install spray caps.  So a number of years later, during the Giuliani administration, when the City discovered new types of locks that it thought could keep civilians from turning on the hydrants – it installed them.  “Fire hydrants should be for firefighting, not for playing,” said the Fire Chief.  It is very difficult for the government to let go of the idea that people should act, must act, do act as morality and good judgment and the law expect them to.  

(And, yes, of course the residents of New York eventually figured out how to break the new locks.)

This tension between the ideal and the real is something that permeates government policy at all levels, and in all areas of law.  But public health holds a special place.  Consider, to pick another area, disclosures.  We know – recent scholarship backs this up but we already knew – that we don't read that stuff.  The required disclosures on ibuprofen bottles are so small that we can barely read the dosage, much less the warning.  We flip past the full-page disclosures following prescription drug ads in magazines.  Even the measures public health advocates fight hardest for don't really seem to work, if by “work” we mean actually convey information in a meaningful way that changes consumer behavior.  Calories are now posted on menu boards in many fast food restaurants, yet most studies so far have shown that the impact on customers’ choices has been minimal.  There may be other beneficial effects – reformulated menu offerings, increased awareness.  But for the heartland purpose of the conveyance of information to a rational consumer who utilizes that information to make a beneficial dietary choice – not so much.  Or, let’s for a moment pretend that Judge Brown was right and that placing grotesque images of the consequences of smoking on the outside of cigarette packages doesn't actually cause a measurable decline in the incidence of smoking.  Yet even if that were so, wouldn’t a lot of people still believe that the government should require that those images be there?

There must be something else going on.  Government is still discharging its duty.  It is doing what it would do if everyone were just . . . reasonable.  And for some reason, we the People – if not we people – hold that to be enough. 

So what does all this have to do with the honored guest at this symposium?  How could the First Amendment possibly be influenced by Ideal thinking?  Could it be that the Judicial branch – principal steward of the First Amendment – is also guilty of government by wishful thinking?  It appears that that may be the case.

The uncomfortable truth is that the commercial speech doctrine, which governs all efforts to regulate advertising in the service of public health, is built on a foundation that is more mirage than bedrock.  Current research in neuroscience, behavioral economics, developmental psychology, and addiction studies paints homo sapiens as a very different creature from homo economicus.  The research strongly suggests that the commercial speech doctrine is built on a flawed foundation – the idea that we are “Econs” rather than Humans.  Constitutional protection for commercial advertising arises from the assumption that human actors make rational economic decisions based on the information provided in that advertising.  But it turns out that human beings often don’t make Virginia Pharmacy’s iconic “intelligent and well informed” purchasing decisions, and that a great deal of commercial advertising contains no information that could aid in those decisions even if they were being made.  If consumers are being manipulated rather than informed, and if some of the products they are being manipulated to buy may lead to grave health problems and premature death, then there is a profound problem with a doctrine that severely restricts government’s ability to regulate commercial advertising in the interest of public health.

And that is the rub.  There can be very real consequences to the maintenance of the Ideal.  As a collective, we apparently care about the image we hold of ourselves as rational and well behaved.  But for the government to hold that view as a matter of public health policy can cause serious harm. 

So what happens when reality intrudes on the ideal?  What happens to the law – and (if you will) the “Lexons” that it purports to govern – when it is revealed by scientific studies to be an emperor without clothes?  Generally, the answer is “Nothing.”  We cling too hard to ideals to let them be disturbed by mere fact.  Millenialist groups do not disband when the world does not end – they just change the date.

But sometimes – sometimes – the right combination of ferment in the underlying ideal and an upsurge in scientific evidence can make a change.  For a very long time government in the United States acted on a vision of the family as including one mother and one father, and the underlying assumption that it was better for a child to grow up in such a family went unchallenged.  But when the image – the ideal – began to shift, the presence of studies establishing no measurable difference in well-being between the children of traditional families and two-mom or two-dad families had (and is still having) a dramatic impact.

True paradigm shifts don't arise often, but reality can be insistent and disruptive in smaller ways. To return to where we began, consider again the course of U.S. government response to HIV/AIDS.  In July 2013, the Centers for Disease Control issued a remarkable communication putting the government’s imprimatur on a program called “pre-exposure prophylaxis” that included use of the drug Truvada.  Earlier studies had shown that although condom use is, under ideal conditions, an effective, albeit imperfect, way to prevent transmission, real people in groups at high risk for HIV don't actually use condoms consistently.  But apparently they do use pills.  In a series of studies, Truvada, compared to a placebo, reduced transmission rates dramatically, including among those who had multiple sexual partners.  In other words, the United States government was issuing a policy based not on idealized patterns of sexual activity but rather on the reality of sexually active gay men.  Consider the distance traveled:  from abstinence, to monogamy, to condom use, to Truvada.  That is a not just a change in policy; it is a shift, in dramatic terms, over time, from the ideal to the real.

Will the new policy last?  The New York City fire hydrant example, for one – and the fate of federal funding for needle exchange programs, for another -- suggest that there may be a reaction in the future, some irredentist officials for whom the ideal has not shifted enough to recognize quite this much reality.  But in the meantime infection rates are going to go down.  And that will create its own kind of reality.

Finally, what about the First Amendment and commercial speech?  Does the Bill of Rights come within the realm of ideals that may usefully be held up to the light?

Certainly there are reasons to be thoughtful about which ideals we scrutinize.  We hold certain truths to be self-evident in part because we don’t want to question them.  They are foundational, part of what holds us together as a nation.  “All [people] are created equal” might not stand up to intense DNA-based scrutiny, but you know what we mean – and we cherish that ideal.  On the other hand, “Corporations are people, too, my friend” – maybe, given the harm done, we would be willing to let that one go. 

Ted Mermin is Executive Director, Public Good Law Center, Berkeley, CA. You can reach him by e-mail at TMermin at publicgoodlaw.org