Public Health Originalism and the First Amendment

45 Pages Posted: 23 Aug 2019

See all articles by Claudia E. Haupt

Claudia E. Haupt

Northeastern University - School of Law; Yale University - Yale Information Society Project

Wendy E. Parmet

Northeastern University - School of Law

Date Written: August 23, 2019

Abstract

Current First Amendment doctrine has set public health regulation and protections for commercial speech on a collision course. This Article examines the permissibility of compelled public health and safety warnings after the Supreme Court’s decision in NIFLA v. Becerra through the lens of a concurrence to the Ninth Circuit’s en banc decision in American Beverage Association v. San Francisco suggesting that only health and safety warnings dating back to 1791 are presumptively constitutional under the First Amendment.

Rejecting this form of “public health originalism,” this Article first assesses the current doctrinal landscape of compelled public health and safety warnings in the context of commercial speech. It then turns to the history of such warnings, revealing that contrary to apparent assumptions underlying “public health originalism” in its deregulatory form, laws compelling speech including to protect public health existed in the framing era and were not thought to clash, in the modern sense, with individual liberties, including the freedom of expression. Finally, this Article offers a reading of NIFLA in light of the underlying normative interests of speakers and listeners that attempts to reconcile contemporary First Amendment doctrine and compelled public health and safety warnings.

Keywords: First Amendment, free speech, originalism, public health, commercial speech, compelled speech, compelled disclosures, NIFLA, Zauderer

JEL Classification: K00, K2, K10, K13, K29, K32

Suggested Citation

Haupt, Claudia E. and Parmet, Wendy E., Public Health Originalism and the First Amendment (August 23, 2019). Northeastern University School of Law Research Paper No. 353-2019; Washington and Lee Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3441716

Claudia E. Haupt (Contact Author)

Northeastern University - School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Wendy E. Parmet

Northeastern University - School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States
(617) 373-2019 (Phone)
(617) 373-5056 (Fax)

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