Public Health Originalism and the First Amendment
74 Pages Posted: 23 Aug 2019 Last revised: 2 Apr 2021
Date Written: August 23, 2019
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: Suggested Citation