For the conference on Public Health in the Shadow of the First Amendment
On Saturday, October 18, I’m headed to New Haven to speak at
the conference “Public Health in the Shadow of the First Amendment.”
In the meantime, as Secretary of Maryland’s Department of
Health and Mental Hygiene, I have been fielding nonstop questions about the
Ebola virus and the potential risk to Americans.
After the first case was identified in the United States
last week, my Department, along with representatives from Johns Hopkins and the
University of Maryland held a news conference
to provide factual information on Ebola, its treatment, investigation of cases,
and handling of outbreaks. When asked
about potential treatments and vaccines, I was able to say that FDA is
accelerating consideration of important therapies, but that none had been
approved to date.
I’m a pediatrician, not a lawyer. I am, however, familiar with the increasingly
popular view of some attorneys and judges who believe that the First
Amendment’s protections for speech apply fully to marketing by corporations -- that it is
unconstitutional to restrict companies from saying truthful statements about their
products, and that the burden of disproving such statements falls to the
government.
Such a perspective would not serve Americans well this week. Companies would be able to market worthless remedies
for preventing and curing Ebola infection, backed by technically true but
confusing statements about doctors and scientists who happen to agree. When actual treatments that work become
available, consumers would be forced to distinguish in a moment of panic
between meaningful care and snake oil.
Public health agencies have long regulated commercial speech
because doing so saves lives – both directly, by reducing unnecessary
confusion, and indirectly, by supporting an incentive structure that rewards advancing
health. Regulation of commercial speech
often represents the right balance between not doing anything (and the resulting
health harm) and banning particular products (and eliminating choice
altogether). Public health action to
regulate commercial speech has enjoyed broad popular support.
Now is not the time to trade this approach for an ideological
vision of commercial speech under the First Amendment. I look forward to the conference and the
opportunity to engage with practitioners, academic experts, and others on this vital
topic in public health and the law.
Joshua M. Sharfstein, M.D., is Secretary of Health & Mental Hygiene for the State of Maryland. You can reach him by e-mail at joshua.sharfstein at maryland.gov