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Snake Oil

65 Pages Posted: 23 Aug 2017  

Jane R. Bambauer

University of Arizona - James E. Rogers College of Law

Date Written: August 20, 2017

Abstract

Snake oil is dangerous only by way of the claims that are made about its healing powers. But First Amendment doctrine has struggled to find equilibrium in the balance between free speech and the reduction of junk science. Regulation requires the government to take an authoritative position about which factual claims are “true” and “false,” which is anathema to open inquiry. As a result, free speech jurisprudence overprotects factual claims made in public discourse out of respect for any remote possibility that the scientific consensus might be wrong, but has given wide latitude to state actors to regulate all but the most accepted and well-supported claims in advertising. This Article shows that the interests in speech and safety alike would be better served by switching from the truth-oriented set of rules that apply today to a risk orientation. While risk and falsity are obviously related, they are not substitutes. The transition to a risk analysis would better match longstanding First Amendment traditions that permit state interests in avoiding harm to outweigh speech interests while maintaining epistemic modesty. The practical effect of this shift would be to permit more regulation in public discourse and less in commercial speech.

Keywords: First Amendment, free speech, commercial speech, public health, scientific claims

Suggested Citation

Bambauer, Jane R., Snake Oil (August 20, 2017). 92 Washington Law Review ___ (2017, Forthcoming); Arizona Legal Studies Discussion Paper No. 17-18. Available at SSRN: https://ssrn.com/abstract=3023388

Jane Yakowitz Bambauer (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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