Health Promotion and the First Amendment: Government Control of the Informational Environment

Abstract:     
This article considers the applicability of the U.S. Constitution to American health policy, a topic only occasionally addressed in the health policy literature. Gostin and Javitt are concerned with the government's power - and limits thereon - to exert control over the public's receipt of information that is pertinent to health. They analyze three means by which government might do this: through restrictions on commercial speech, through requirements that might be attached to commercial speech (e.g., warning labels), and through health-related messages by the government itself. As Gostin and Javitt note, the First Amendment protects private citizens from governmental interference with expression, but it has no specific application when government is the speaker. They report that there is very little jurisprudence or scholarship on the permissible boundaries of government speech on matters of health. Drawing on the law that applies to commercial speech, Gostin and Javitt propose some legal and ethical principles that should apply when the government is the source of information.

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