For the conference on Public Health in the Shadow of the First Amendment
Public health and government have what supermarket tabloids refer to as a “complicated relationship.” One of the reasons for the complexity is that government has a habit of governing idealized persons, while the people being governed have an equally strong tendency to behave in ways that are not ideal. It does not take Dr. Phil – or, to advert to a greater sage of an earlier era – Dr. Ruth to figure out that this is not a recipe for a successful partnership.
To illustrate: The story of HIV/AIDS prevention in this country is a morality tale. That is, government efforts to reduce new infections have from the outset involved considerations other than the basic public health directive of saving lives. For years, abstinence and monogamy – and avoiding intravenous drug use – were the primary preventive measures that the federal government would advocate. Even in Africa at the height of the AIDS crisis a decade ago, the US government assistance program insisted on “ABC” – Abstinence, Be faithful, and (only then, if you must have sex) use a Condom. Domestically, federal agencies were specifically prevented from funding needle-exchange programs – despite stark evidence of their effectiveness at preventing infection – until 2009, and the prohibition was reinstated two years later. For more than a quarter century, then, U.S. policy in response to the HIV epidemic was driven by something other than simply preventing disease.
We can call it “morality,” or squeamishness, or perhaps simply a fervent wish that people would just behave better – more in the image of an ideal citizen. At least since the transmission pathways were established, the federal government has been happy and effective in helping ideal citizens avoid HIV – hemophiliac children who receive blood products, for example. But it took much longer for the government to get around to recognizing gay men and IV drug users as victims. If these people hadn't done what they did, none of this – well, you know. They brought it on themselves. This was not at all the way the citizenry was supposed to behave. The government found it difficult to officially recognize that it was treating fallible people, not idealized people – those who behaved as they were, not as the government and many others thought they should be. These actual humans posed, as they always have, a real problem.
The landscape where government and public health meet is dotted with illustrations of the real human/idealized human dilemma.
Consider the history of “off-label” uses of fire hydrants in
New York City. In the 1970s, it was a
common sight on hot days in summer to see people in landlocked urban
neighborhoods playing in the streets in the wild flow of an open fire
hydrant. The City fought these “vandals”:
it turned off the hydrants, it installed
safety locks, it arrested people – but none of those measures worked. And then someone had the nutty idea of
actually looking at why people were opening the hydrants. It turned out they were hot. The openings happened primarily during heat
waves, in neighborhoods without pools or park sprinklers or even backyards. So the someone who stopped to figure out why
people were risking fines and even freedom to open hydrants proposed that if
the City couldn’t stop the openings – and it couldn't – and if it wanted people
to be able to cool down on dangerously hot days – and it did – then why not … distribute
spray caps? The dangerous diversion of
water flow dropped from 1000 gallons a minute to 25. The kids could cool off. Everyone was happy.
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.
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.
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
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