an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Yale Conference on Public Health in the Shadow of the First Amendment
This weekend the Yale Law School, Medical School and Public Health School will co-host a conference on Public Health in the Shadow of the First Amendment. This week Balkinization will feature posts from several of the participants. Here is the conference description:
Public Health in the Shadow of the First Amendment will bring together leading scholars, key policy makers, and top experts in law, public health and medicine. This conference, the first of its kind, will investigate a broad range of complex constitutional issues raised at the intersection of medicine, public health, and the First Amendment.
The regulation of food, medicines, and tobacco all rely crucially today on the regulation of speech, for example through behavioral marketing, disclosures, and restrictions on certain modes of commercial promotion. First Amendment doctrine has recently changed in significant ways, bringing it into potentially deep tension with such measures. For example, commercial speech doctrine has been used to invalidate FDA restrictions on off-label marketing of drugs, to prevent graphic warnings on cigarette packages, and to challenge calorie disclosures in restaurants.
In addition, new and important questions about the limits of a legislature’s ability to mandate or forbid certain physician speech are emerging. For example, should the First Amendment protect doctors from requirements that they provide patients with ultrasounds or medically unproven “information” in the abortion context, or mental health providers from restrictions on conducting reparative therapy for gay teens? In cases such as these, courts and legislatures are also increasingly required to adjudicate questions of scientific merit. Many recent examples suggest reason for concern about the results.
Neither courts nor scholars have developed a consistent and coherent approach to these different areas. Experts in First Amendment law are rarely in a position to fully articulate the health consequences of these cases, and health experts rarely have the literacy in free speech law required to navigate these issues.
This conference will investigate these enormously important issues, with panels on food and drug regulation, behavioral marketing in the context of obesity, tobacco, and food policy, the regulation of professional conduct, First Amendment theory, and the intersection between science and democracy.