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The First Amendment and Public Health, at Odds

Published online by Cambridge University Press:  06 January 2021

Seth E. Mermin
ChangeLab Solutions
Samantha K. Graff
ChangeLab Solutions


At the turn of the last century, allies of industry on the Supreme Court deployed a novel constitutional doctrine to thwart government regulations aimed at improving public health and safety. During the Lochner v. New York era, the Supreme Court discovered a right to “freedom of contract” in the Due Process Clause of the Fourteenth Amendment that advanced the “economic liberty” of businesses to conduct their affairs without government oversight. The newfound freedom of contract forbade, for example, public policies aimed at improving factory conditions by setting maximum working hours, forbidding child labor, or setting a minimum wage. The Court later somewhat abashedly changed course, finding that government in fact had great leeway to implement economic regulations protecting and promoting general welfare.

Today, seventy-five years after the Supreme Court repudiated the doctrine of economic substantive due process, the Court has backtracked to the notion that the Constitution significantly impedes the government's ability to safeguard public health and safety by regulating commercial activities.

Copyright © American Society of Law, Medicine and Ethics and Boston University 2013

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This work was supported by a grant from the Robert Wood Johnson Foundation through the National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN).


1 Lochner v. New York, 198 U.S. 45, 64 (1905) (“[T]he freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.”).

2 Id.

3 Hammer v. Dagenhart, 247 U.S. 251 (1918).

4 Adkins v. Children's Hosp., 261 U.S. 525 (1923).

5 See W. Coast Hotel v. Parrish, 300 U.S. 379 (1937).

6 See, e.g., Stromberg v. California, 283 U.S. 359 (1927); Gitlow v. New York, 268 U.S. 652 (1925) (Holmes, J., dissenting).

7 See Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173, 176-77 (1999); United States v. Edge Broad. Co., 509 U.S. 418, 421-22 (1993); Valentine v. Chrestensen, 316 U.S. 52 (1942); Ex parte Rapier, 143 U.S. 110 (1892); Ex parte Jackson, 96 U.S. 727, 736–37 (1878).

8 See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976). The fact that the advertising in the early cases was often for products like contraceptives and abortion services may have enhanced the Court's sense that it was furthering the cause of civil liberties. See, e.g., Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983); Bigelow v. Virginia, 421 U.S. 809 (1975).

9 Cent. Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 562 (1980).

10 Id. at 564 n.6.

11 Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2667-68 (2011). Sorrell suggests that an amalgam of strict scrutiny and intermediate scrutiny applies to restrictions on commercial speech. Traditionally, however, the Central Hudson test has applied only an intermediate standard: restrictions on truthful, nondeceptive commercial speech that is not concerned with illegal activity must (1) directly and materially advance a substantial government interest, and (2) restrict no more speech than needed so that there remains a reasonable fit between the government's ends and its means. See id.; see also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001); Cent. Hudson, 447 U.S. 557.

12 The last Supreme Court commercial speech restriction case in which the Court ruled in the government's favor was Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) (upholding Florida bar rules forbidding attorneys from using direct mail to solicit personal injury or wrongful death clients within thirty days of an accident).

13 See, e.g., Lorillard, 533 U.S. at 525.

14 See id.

15 See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).

16 See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

17 See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) (holding that, at least with respect to campaign expenditures, corporations have essentially the same First Amendment rights as human beings); Hasen, Richard L., Citizens United and the Illusion of Coherence, 109 MICH. L. REV. 581 (2011)Google Scholar (critiquing the majority opinion); John Paul Stevens, Beyond Citizens United, 13 J. APP. PRAC. & PROCESS 1 (2012) (same).

18 See, e.g., Sorrell v. IMS Health Inc., 131 S.Ct. 2653, 2678 (Breyer, J., dissenting).

19 See, e.g., id. at 2672 (largely ignoring issues raised by dissent).

20 See Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012), petition for cert. filed, 2012 U.S. Briefs 59508 (U.S. Oct. 26, 2012) (No. 12A102).

21 See United States v. Caronia, 703 F.3d 149 (2d Cir. 2012).


23 Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976).

24 See, e.g., Kunkel, Dale & Castonguay, Jessica, Children and Advertising: Content, Comprehension, and Consequences, in HANDBOOK OF CHILDREN AND THE MEDIA 395 (Singer, Dorothy G. & Singer, Jerome L., eds., 2012)Google Scholar.

25 Cent. Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (1980).

26 See, e.g., Graff, Samantha, Kunkel, Dale & Mermin, Seth E., Government Can Regulate Food Advertising to Children Because Cognitive Research Shows that It Is Inherently Misleading, 31 HEALTH AFF. 392 (2012)Google ScholarPubMed.

27 See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 565 (2001) (“The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.”).

28 Id. at 555.

29 Brooks Barnes, Limiting Ads of Junk Food to Children, N.Y. TIMES, July 18, 2007, (“An episode of Nickelodeon's ‘SpongeBob SquarePants,’ for instance, is viewed by an average audience of 876,000 children age 6 to 11, according to Nielsen Media Research, and falls in the category of shows that are off-limits to ads for junk food. But ‘American Idol’ from Fox, which qualifies as a family show, attracts 2.1 million children in the age group.”).

30 Whether it would be politically feasible is another question entirely. See, e.g., Neil Browne, M. et al., Advertising to Children and the Commercial Speech Doctrine: Political and Constitutional Limitations, 58 DRAKE L. REV. 67 (2009)Google Scholar.

31 See Lorillard Tobacco Co., 533 U.S. at 565.

32 See Harris, Jennifer L. & Graff, Samantha K., Protecting Young People from Junk Food Advertising: Implications of Psychological Research for First Amendment Law, 102 AM. J. PUB. HEALTH 214, 216-19 (2012)Google Scholar.

33 Id.

34 Brown v. Entm't Merchants Ass’n, 131 S. Ct. 2729, 2735-42 (2011).

35 See, e.g., Lorillard Tobacco Co., 533 U.S. at 555.

36 See id.

37 See, e.g., Brown, 131 S. Ct. at 2739; R.J. Reynolds Tobacco Co. v. Food & Drug Admin., 696 F.3d 1205, 1219 (D.C. Cir. 2012).

38 See R.J. Reynolds Tobacco, 696 F.3d at 1221.

39 Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (2009).

40 See 21 U.S.C.A. §§ 333, 372, 387a-1, 387f(d) (West 2012).

41 Commonwealth Brands, Inc. v. United States, 678 F. Supp. 2d 512, 538 (W.D. Ky. 2010), aff’d in part, rev’d in part sub nom. Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012).

42 Discount Tobacco City, 674 F.3d at 539. The court ultimately upheld the measure under the Central Hudson test, but the point remains that treating the distribution of samples as an expressive activity points toward a troubling expansion of the commercial speech doctrine. See id.

43 Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2667 (2011) (“There is thus a strong argument that prescriber-identifying information is speech for First Amendment purposes.”). The Court cited cases to illustrate its proposition, but those decisions generally found that the disclosure of information, rather than the information itself, qualified as protected speech. Id.

44 The rule established by precedent is more nuanced, granting less constitutional protection to commercial information flowing from businesses to their customers than to commercial speech addressing matters of public concern. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (plurality opinion); Trans Union Corp. v. FTC, 245 F.3d 809 (D.C. Cir. 2001).

45 See, e.g., King v. General Information Servs., Inc., No. 10-6850, 2012 WL 5426742 (E.D. Pa. Nov. 6, 2012) (upholding constitutionality of section of Fair Credit Reporting Act, 15 U.S.C.A § 1681c (West 2012), prohibiting dissemination of criminal arrest records after a certain number of years).

46 See Regis McKenna, Marketing Is Everything, HARV. BUS. REV., Jan.-Feb. 1991, available at; see also Philip J. Kitchen et al., The Emergence of IMC: A Theoretical Perspective, 44 J. ADVERTISING RES. 19, 21 (2004), available at

47 See, e.g., KAHNEMAN, supra note 22.

48 See Sorrell, 131 S. Ct. 2653; Cent. Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 562 n.5 (1980) (“[T]he failure to distinguish between commercial and noncommercial speech ‘could invite dilution, simply by a leveling process, of the force of the [First] Amendment's guarantee with respect to the latter kind of speech.’”).

49 See Piety, Tamara R., “A Necessary Cost of Freedom?The Incoherence of Sorrell v. IMS, 64 ALA. L. REV. 1, 4755 (2012)Google Scholar.

50 See Cent. Hudson, 447 U.S. at 557.

51 Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012).

52 See Jennifer Harris & Samantha K. Graff, Protecting Children from Harmful Food Marketing: Options for Local Government to Make a Difference, 8 PREVENTING CHRONIC DISEASE, no. A92, 2011 at 1.

53 See Graff, Samantha K., First Amendment Implications of Restricting Food and Beverage Marketing in Schools, 615 ANNALS AM. ACAD. POL. & SOC. SCI. 158 (2008)Google Scholar.

54 Id. at 172. This leeway does not extend to government property that is a “public forum.” Id. at 165. But it does leave government room to issue public service messages embodying the government's own speech; regulate advertising on government property not open to the general public, like commissaries and hospitals; and require government procurement contracts to include clauses restricting certain types of ads (on vending machines, for example). Cf. id.

55 Id. at 170.

56 See Cent. Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 564 (1980).

57 Id. at 566.

58 See Samantha Graff & Tamara Piety, The New First Amendment and Its Implications for Combating Obesity Through Regulation of Advertising, in ADVANCES IN COMMUNICATION RESEARCH TO REDUCE CHILDHOOD OBESITY 101, 113 (Jerome D. Williams et al. eds., 2013) (describing the troubling implications of court decisions demanding proof of a one-to-one causal relationship between a regulation and the problem it is trying to address).

59 Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 538 (6th Cir. 2012).

60 See Nat’l Ass’n of Tobacco Outlets, Inc. v. City of Providence, No. 12-96-ML, 2012 WL 6128707, at *1 (D.R.I. Dec. 10, 2012).

61 Id.

62 Id.

63 Id. at *4.

64 See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 567 (2001) (citing United States v. O’Brien, 391 U.S. 367, 376-77 (1968) (“[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”)).

65 See Lorillard, 533 U.S. at 567 (considering regulation of retailers’ “particular means of displaying their products” to be subject at most to the standard for expressive conduct); Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 538 n.10 (6th Cir. 2012).

66 As noted, since 1995 no Supreme Court case has upheld a government restriction on commercial speech; in the same period, no Supreme Court case has struck down a measure restricting expressive conduct. See supra note 12.