19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM

363

FREE SPEECH AND PUBLIC HEALTH:
A POPULATION-BASED APPROACH
TO THE FIRST AMENDMENT
Wendy E. Parmet*
Jason A. Smith**
I. INTRODUCTION
It is banal, but true, to say that we live in an information age.
Today, more than ever, information and the speech that conveys it
are critical currencies as well as sources of wealth and influence.
They help to shape the social, cultural, and political environment in
which we live. They also serve as health determinants.
The role of speech in determining health is especially salient in
the case of childhood obesity. In multiple complex and subtle ways,
speech influences individual behavior, cultural norms, public poli-
cies, and social relationships, all of which form part of the environ-
ment that affects children’s weight. This creates a challenge for both
public health advocates and the law. The challenge is how to shape
the informational environment, formed by speech, to one that retards
the epidemic without running afoul of the First Amendment and its
strong preference for free speech. That challenge is not simple. In
recent years, the Supreme Court has enhanced and enlarged the
protections given to speech, including so-called commercial speech.1
As a result, it may be more difficult for government today to regulate
speech that affects obesity than it would have been in the past.
Moreover, even if the government can constitutionally regulate
* Matthews University Professor of Law, Northeastern University.
** Adjunct Professor, Northeastern University School of Law; Associate
Executive Director, Public Health Advocacy Institute. The authors thank
Matthew McHugh, Deborah Thorpe, Robin Ackerman, Sarah Klosner and
Julie Ciollo for their invaluable assistance and research efforts.
1. See discussion infra Part V.B.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
364 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

speech, public health advocates should pause before they embrace an
overly loose interpretation of the First Amendment. Although
speech may harm public health, it can also serve as a tool for
protecting it.
How then can we reconcile the First Amendment’s protection of
speech with safeguarding health in an information age? This Article
examines that question in the context of the obesity epidemic. We
begin in Part II by situating the role and regulation of speech with
respect to public health in an historical context. We argue that
throughout our constitutional history, society’s attempt to protect and
preserve public health has led to conflicts with those interests most
highly valued and respected at the time. In the past, this has included
conflicts between public health and rights of property, contract, or
personhood.2 Today, an increasingly prominent form of the conflict
is that between the right of free speech and public health. Under-
standing that the tensions we witness today between speech and
public health have parallels in prior constitutional controversies
sheds light on the nature of today’s conflict and is instructive about
its possible reconciliation.
In Part III we turn to a discussion of the role that speech plays in
determining health.3 We begin by examining three different path-
ways by which speech can influence a population’s health. In
undertaking this examination, we demonstrate that the most impor-
tant pathways rely upon the interaction and intervention of social,
population-level factors. In other words, while speech can some-
times influence health by motivating individuals to undertake or not
undertake particular behaviors, speech’s greatest influence upon
health comes from its interactions with other social forces to influ-
ence the environment in which populations live.
2. See discussion infra Part II.
3. We prefer the word “information” because it is more comprehensive
and encompassing than “speech.” First Amendment cases and commentary,
however, tend to use the term “speech.” As a result, a key question under First
Amendment law is whether the activity in question constitutes “speech.” See,
e.g., Texas v. Johnson, 491 U.S. 397, 403 (1989). However, the Supreme
Court has held that activities that are not speech in the common sense of the
term, such as burning a draft card, may nonetheless constitute speech because
they are undertaken to convey a message or information. United States v.
O’Brien, 391 U.S. 367, 376 (1968). We use the term “speech” interchangeably
with the term “information.”

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 365

In Part IV we discuss the obesity epidemic. We begin by briefly
outlining the scope and nature of the epidemic. Then we turn to the
role that speech, especially commercial speech, has played in
influencing the weight of children. To a large degree, this speech has
impacted public health by influencing the social, cultural, and
political environments affecting children.
Part V introduces relevant First Amendment law. We begin by
reviewing the Supreme Court’s commercial speech and compelled
speech cases and suggest that in applying its stated tests, the Court
has at times recognized and at other times overlooked the myriad
social pathways in which speech affects the informational environ-
ment and hence public health.
Part VI argues that were the Court to recognize consistently that
speech acts not only upon individuals, but also upon the social and
political environments in which they exist—that is, if the Court were
to consider the way that speech affects populations—the First
Amendment would not present quite as formidable a barrier to
limited regulations of commercial speech as it now does. Moreover,
if the Court employed a population-based perspective,4 it would
more carefully ensure that the protection it affords individuals and
corporations from compelled speech does not extend so far as to
seriously threaten public health.
Finally, Part VII concludes that employing a population-based
perspective will help to balance the application of the values of free
speech with the protection of public health. In other words, this
approach will help courts appreciate that in an information age,
rights of free speech, like other Constitutional rights, can and must
coexist with the state’s interest in protecting public health.5
4. A population-based perspective is the defining vantage point of the
discipline of public health. See JO FAIRBANKS & WILLIAM H. WIESE, THE
PUBLIC HEALTH PRIMER 80–81 (1998). For a discussion of what it means to
apply this perspective in legal analysis, see infra text accompanying notes
455–95.
5. In this Article we do not attempt to reconcile our discussion of the First
Amendment with different theoretical and interpretative constructs prevalent in
First Amendment jurisprudence. Instead, we approach the problem from a
perspective outside of traditional First Amendment discourse, a public health
perspective. For a further discussion of what we mean by “public health
perspective”, see Wendy E. Parmet, Liberalism, Communitarianism, and
Public Health: Comments on Lawrence O. Gostin’s Lecture, 55 FLA. L. REV.
1221, 1233–37 (2003).

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
366 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

II. PUBLIC HEALTH, HEALTH DETERMINANTS,
AND THE POLICE POWER
Societies have always sought to protect themselves against
epidemics and to safeguard the health of their populations. In the
United States, the critical job of protecting public health is entrusted,
in the first instance, to the states, which since the founding of the
Constitution have used their police power to enact “health laws of
every description.”6 Moreover, although the federal government
lacks a general police power, its enumerated powers have long
served to enable it to promote and protect public health.7
Understandably, regulations aimed at protecting public health
generally target what people, at the time, believe is (but often is not)
causally related to the health threat at hand. As a result, the nature
and goals of health regulations vary over time. During the Puritan
era, for example, colonial and local governments mandated prayer
and fasting, believing that the people’s lapse of piety was responsible
for the epidemics they faced.8 The colonies, and subsequently the
states, also imposed quarantines and other regulations that seemed
justified by the medical understandings of the era.9
A century later, when people believed that miasma caused hor-
rific epidemics, states and cities responded by regulating the disposal
of dead animals and waste.10 After the bacteriological revolution of
the late nineteenth century, states and municipalities used laws to
prevent the spread of germs.11 For example, New York relied upon
its health regulations to isolate “Typhoid Mary,” a carrier of
6. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824).
7. See Wendy E. Parmet, After September 11: Rethinking Public Health
Federalism, 30 J.L. MED. & ETHICS 201, 203–04 (2002). Because the courts
have tended to treat First Amendment claims against the federal government
identically to those against the states, for the purposes of this Article we shall
overlook issues of federalism and treat the interests of the federal government
and the states identically when discussing the tensions between public health
protection and constitutional rights. Compare Texas v. Johnson, 491 U.S. 397
(1989) (striking down state law prohibiting flag burning), with United States v.
Eichman, 496 U.S. 310 (1990) (striking down federal flag mutilation statute).
8. Wendy E. Parmet, Health Care and the Constitution: Public Health and
the Role of the State in the Framing Era, 20 HASTINGS CONST. L.Q. 267, 286
(1993).
9. See id. at 287–88.
10. See id. at 290–91.
11. See id. at 292.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 367

typhoid.12
In each case, the interventions infringed upon the personal or
business interests of individuals and entities. Not surprisingly, these
conflicts often made their way to court, where judges had to
reconcile the government’s efforts to protect public health with the
interests of the individuals affected.13
Over the years, litigation challenging public health regulations
has taken many forms and has implicated numerous legal doctrines.
A full recounting of such legal conflicts is well beyond the scope of
this Article. For present purposes, only a few points require discus-
sion. First, at least since Reconstruction, challenges to public health
regulations have often been framed as constitutional contests, in
which individuals have claimed that a putative public health law
violates a protected constitutional right.14 Second, these challenges
have invoked many constitutional rights.15 While many factors have
influenced which constitutional claim was raised, claims that were
dominant in the legal discourse of a period were especially apt to
appear in public health litigation.
A. Rights Related to Real Property and Contract
Consider, for example, the age of sanitation, the mid-1800s.
During this early industrial period, public health laws focused on the
sanitary conditions of property as governments sought to regulate the
sanitary environment.16 In order to implement these reforms, gov-
ernments relied upon legal tools, such as nuisance abatement, which
allowed governments to regulate the use of property.17 This forced
courts to consider the scope of a landowner’s property right in
opposition to a state’s claim to protect public health.18
12. See JUDITH WALZER LEAVITT, TYPHOID MARY: CAPTIVE TO THE
PUBLIC’S HEALTH at xvii–xviii (1996).
13. See, e.g., Fertilizing Co. v. Hyde Park, 97 U.S. 659, 670 (1878)
(holding that a corporation charter did not provide exemption from a nuisance
ordinance).
14. See Parmet, supra note 7, at 201–02.
15. See, e.g., Parmet, supra note 8, at 303 n.270.
16. See GEORGE ROSEN, A HISTORY OF PUBLIC HEALTH 214–15 (1955).
17. Lawrence O. Gostin et al., The Law and the Public’s Health: The
Foundations, in LAW IN PUBLIC HEALTH PRACTICE 3, 14–15 (Richard A.
Goodman et al. eds., 2003).
18. See Parmet, supra note 7, at 202.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
368 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

An interesting example of such a dispute is Fertilizing Co. v.
Hyde Park.19 In that case, the state legislature had granted a fifty-
year charter to a fertilizing company.20 Subsequently, the legislature
delegated to the village of Hyde Park the power to abate nuisances
with a proviso that could not take any action against the fertilizing
company for two years.21 After the period ended, the town sought to
apply its sanitary ordinances against the company and abate the
nuisance the town believed the fertilizing company was causing.22
The company claimed that the town violated its contract rights.23
The Supreme Court disagreed, basing its interpretation in part on its
reading of the charter and the legislation granting police powers to
the village.24 The Court read the documents as it did in large
measure due to its belief that real property rights are limited by the
police power and nuisance law.25 In an opinion by Justice Swayne,
the Court stated:
That a nuisance of a flagrant character existed, as found by
the court below, is not controverted. We cannot doubt that
the police power of the State was applicable and adequate to
give an effectual remedy. That power belonged to the
States when the Federal Constitution was adopted. They
did not surrender it, and they all have it now. It extends to
the entire property and business within their local
jurisdiction . . . . It rests upon the fundamental principle
that every one shall so use his own as not to wrong and
injure another. To regulate and abate nuisances is one of its
ordinary functions.26


19. 97 U.S. 659 (1878).
20. Id. at 663.
21. Id. at 664–65.
22. Id. at 665.
23. Id. at 666.
24. Id. at 667, 670. The actual constitutional claim the plaintiffs brought
was a breach of the contract clause. Id. at 666. The plaintiffs claimed that the
charter acted as a contract that exempted it from the city’s sanitary regulations.
Id. Although the Supreme Court rejected the contracts clause claim, much of
its analysis focused on nuisance law and the police power, and the extent to
which they limited property rights. See id. at 667, 670.
25. Id.
26. Id. at 667.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 369

The Court went on to note that common law permitted the
destruction of buildings without compensation to stop the spread of
fire.27 Thus, despite the importance of property, the Court viewed
the individual’s contract and property rights as bounded by and co-
existing with the states’ police power.28
B. Due Process Rights
During the epidemiological transition underway at the end of the
nineteenth and start of the twentieth centuries, the dramatic epide-
mics of infectious disease that plagued the earlier era declined
drastically.29 As they did, chronic diseases and occupational health
hazards took on a new salience as major targets of public health
intervention.30 This led public health advocates to turn their atten-
tion to a different set of interventions, including those that pertained
to the workplace.31
It was during this period that the clash between public health
and individual interests focused on the “rights” of contract, which the
Fourteenth Amendment’s due process clause supposedly protected.32
Lochner v. New York33 is, of course, the most famous example. In
that case, the state of New York limited the number of hours that
bakers could work to sixty hours a week.34 The state argued, and the
27. Id. at 669–70.
28. See id. A classic articulation of this understanding of the relationship
between rights of property and the police power derives from Justice Shaw’s
opinion in Commonwealth v. Alger, 61 Mass. (7 Cush.) 53 (1851).
29. THEODORE H. TULCHINSKY & ELENA A. VARAVIKOVA, THE NEW
PUBLIC HEALTH: AN INTRODUCTION FOR THE 21ST CENTURY 42 (2000).
30. Id. at 251. This does not mean that courts did not continue to face cases
challenging sanitary regulations as a violation of property rights. They did,
and most often, they continued to uphold the constitutionality of such laws.
See, e.g., Cal. Reduction Co. v. Sanitary Works, 199 U.S. 306, 325 (1905)
(holding that the local government had the power to make regulations
necessary for the protection of the public health).
31. See, e.g., Lochner v. New York, 198 U.S. 45 (1905).
32. PUBLIC HEALTH LAW AND ETHICS 257 (Lawrence O. Gostin ed., 2002).
This is not to say that other disputes did not continue. For example, during this
period, public health officials focused new attention on the role that individuals
as carriers could play in the spread of epidemics. This clash led to cases, such
as Jacobson v. Massachusetts, 197 U.S. 11 (1905), that raised claims of
individual bodily integrity and liberty against the police power.
33. 198 U.S. 45 (1905).
34. Id. at 52.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
370 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

New York Supreme Court agreed, that the law was designed to
protect the health of workers and the public that ate their bread.35
The United States Supreme Court disagreed, and found that the
public health rationale was pretextual and that the New York law
violated the liberty of workers to contract for a longer workday.36
Volumes have been written about Lochner. We need not repeat
an extensive discussion of the case here. For present purposes, only
three points warrant emphasis. First, as we already suggested,
Lochner exemplifies how litigation over new forms of public health
protection (such as occupational regulations) focus on the
constitutional doctrines dominant at the time. While Lochner is an
especially famous example of this phenomenon, it is hardly the only
one. For example, during the twentieth century, there were challen-
ges under the due process clause to numerous public health laws that
conflicted with important social and economic interests.37 While
each case is unique, and while due process law rightly commands
attention for its own particularities, it is also useful to note that due
process claims covered many issues and conflicts similar to those
that arose under different doctrines in an earlier era.
Second, Lochner dramatizes how public health interventions
often conflict with interests that seem especially critical at the time.
This should not be surprising. In order for public health protections
to have a meaningful impact on population health, they must
necessarily target those activities and interests that affect a broad
spectrum of a population and touch the health of many.38 Regu-
lations that affect only a few, or only those activities peripheral to
society, are unlikely to significantly impact health across a popu-
lation.39 Hence, to have a broad impact, public health litigation
necessarily implicates many of the central activities and concerns of
a society.


35. People v. Lochner, 76 N.Y.S. 396, 402 (App. Div. 1902), rev’d, 198
U.S. 45 (1905).
36. Lochner, 198 U.S. at 57–59.
37. See, e.g., Muller v. Oregon, 208 U.S. 412 (1908) (challenging the
state’s restrictions on the amount of hours female employees could work).
38. See GEOFFREY ROSE, THE STRATEGY OF PREVENTIVE MEDICINE 53–76
(1992).
39. Id. at 73.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 371

Third, Lochner reveals that despite the high value that different
constitutional claims may command, courts have rarely regarded the
state’s interest in protecting public health lightly. Indeed, despite the
outcome in Lochner, the majority of the Court never questioned that
the state could limit liberty of contract to protect public health.40
Rather, the Court clearly accepted that states could reasonably
regulate and limit that right to protect public health.41 The Court,
however, simply did not believe that the legislature enacted the
statute to protect public health.42 Thus, even in the case that most
clearly epitomizes the pre-New Deal Court’s laissez-faire jurispru-
dence, the Supreme Court accepted that public health protection
could justify limiting highly cherished rights.
C. The Era of Individual Rights
In the middle of the twentieth century, different constitutional
rights became the favored vehicles for challenging public health
regulations. For example, during the Warren Court era, courts gave a
great deal of attention to the protections that the Bill of Rights
afforded to criminal defendants.43 It was in this climate, when
substantial litigation and attention centered on the Fourth
Amendment, that the Court undertook the question of whether health
or safety inspections required warrants under the Fourth
Amendment.44
More notably, with the decline of infectious diseases by the mid-
twentieth century, society began to see health as the result of indivi-
dual lifestyle choices and behavior rather than of public or environ-
mental risks.45 At the same time, with the advent of the social
40. See Lochner, 198 U.S. at 57.
41. Id.
42. Id. at 58.
43. See, e.g., Miranda v. Arizona, 384 U.S. 436, 469 (1966) (holding that
the police must inform suspects in custody about their rights to remain silent
and to consult counsel); Gideon v. Wainwright, 372 U.S. 335, 339–45 (1963)
(holding that indigent criminal defendants have the right to counsel in state
courts); Mapp v. Ohio, 367 U.S. 643, 655 (1961) (holding that evidence
obtained through unconstitutional search and seizures is inadmissible in state
courts).
44. Camara v. Mun. Court, 387 U.S. 523, 525 (1967).
45. See JAMES F. MCKENZIE & ROBERT R. PINGER, AN INTRODUCTION TO
COMMUNITY HEALTH 200 (2d ed. Jones & Bartlett Publishers, Inc. 1997)
(1995).

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 379

placing their children in the supine or side position for sleeping.96
Evidence suggests that the campaign was remarkably effective.
Between 1992 and 1999 the incidence of SIDS in the United States
dropped 40% as a result of the BTS campaign’s introduction in
1994.97 By providing “just the facts” to individuals, in other words,
by relying upon the rationality of individuals receiving relevant
information, the BTS campaign was able to reduce infant deaths,
showing that direct-to-individuals speech can have an important
effect on behavior.98
Despite its overall success, the BTS campaign also highlights
some of the limits of public health informational campaigns that seek
to alter behavior simply by giving individuals information. First,
researchers have hypothesized that the BTS campaign achieved the
success it did in part because the information conveyed was
relatively simple to comprehend, the danger the campaign sought to
help people avoid was great (an infant’s death), and the behavioral
change suggested was relatively simple and easy to adopt.99
Additionally, because the greatest danger to infants from SIDS is in
the first six months of life, the required behavioral change did not
have to be put in place for very long.100 Had the intervention
required long-term attention, the campaign may have been less
effective. Moreover, information that is about more complex
problems or that is more nuanced may also be less apt to change
behavior.101 Behaviors that are addictive, habitual, or result from
deeply ingrained social patterns may also be harder to change.102
96. See id.
97. Rachel Y. Moon et al., Back to Sleep: An Educational Intervention with
Women, Infants, and Children Program Clients, 113 PEDIATRICS 542, 542
(2004).
98. Another campaign that may have been similarly successful was one
aimed at getting parents to stop giving their children aspirin when they have
the flu or chicken pox in order to reduce the risk of Reye’s Disease. See
Stephen B. Soumerai et al., The Effects of Professional and Media Warnings
About the Association Between Aspirin Use in Children and Reye’s Syndrome,
in PUBLIC HEALTH COMMUNICATION: EVIDENCE OF BEHAVIOR CHANGE,
supra note 65, at 265, 266.
99. Id. at 283 (discussing the simplicity of the information and behavior
change at issue in the Reye’s campaign).
100. Moon et al., supra note 97, at 545.
101. Soumerai et al., supra note 98, at 283.
102. See id.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
380 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

These types of difficulties in changing behavior result in what has
been termed “bounded willpower.”103 Bounded willpower acknowl-
edges the effect that addiction, habit and physiology can have on
decisions and individuals’ ability to act.104 Thus, it is far easier for
individuals to hear information about SIDS and change their infant’s
sleeping position than it is to hear information about HIV and alter
their own sexual behavior.
Despite its strengths, the BTS campaign was not uniformly
successful across populations. For example, deaths from SIDS did
not decrease in minority communities or among mothers who did not
graduate from college.105 Further studies emphasized the importance
of cultural context and media in sharing information with targeted
communities.106 In other words, the campaign failed to reach some
mothers when it only conveyed factual information to individuals
directly through brochures and pediatricians.107 Only after the cam-
paign altered the materials and information it conveyed and targeted
more complex social pathways, did the speech concerning SIDS
begin to impact minority communities and mothers without college
degrees.108 By targeting the information to the correct social net-
works, emphasizing the extreme nature of the event (death of an
infant), and repeating the message, the campaign took advantage of
the availability heuristic to influence behavior.
B. Speech and Culture
Speech influences culture, including social and legal norms.
This may be an obvious and simple statement, but it is one worth
exploring in order to understand how speech influences public
health. Smoking, mentioned briefly above, offers an excellent
example. In the mid-twentieth century, smoking was very prevalent
in the United States. In fact, the majority of adult American men
were smokers.109
103. Horwitz, supra note 83, at 13.
104. Id.
105. Michael J. Corwin et al., Secular Changes in Sleep Position During
Infancy: 1995–1998, 111 PEDIATRICS 52, 57 (2003).
106. See Moon et al., supra note 97, at 546.
107. See id.
108. See id.
109. In 1965, 52% of adult men in the United States smoked cigarettes. See
Robert A. Kagan & William P. Nelson, The Politics of Tobacco Regulation in

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
384 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

public service announcements to air during the holidays, urging
party-goers to select designated drivers.133 This campaign empha-
sized the seriousness of drunk driving, the severity of its conse-
quences, and repeated, throughout the media, the same idea: the
designated driver.134
It worked. Studies showed an association between the Designa-
ted Driver campaign and a decrease in alcohol-related auto deaths
and injuries.135 In a 1993 survey, 64% of adults in the United States
reported assigning a designated driver when going out drinking.136
While the campaign was associated with a decrease in deaths and
injuries, it did not achieve its results merely by providing individuals
with relevant information or even by altering the cultural
environment. It also changed public policy.137 The Designated
Driver campaign, in conjunction with additional media coverage of
drunk driving, focused policymakers on the problem. Since the
campaign began, the number of legislative and regulatory initiatives
introduced to deter drunk driving has increased.138 These legislative
and regulatory policies have been, in contrast to the Designated
Driver campaign alone, directly associated with and have caused a
decrease in drunk driving.139 Moreover, scholars have demonstrated
the relationship between media coverage of drunk driving in the
culture and policy formation.140 Greater awareness of the problems
associated with alcohol-impaired driving has provided the grounds
for improved regulations, stricter sanctions, and stronger law
enforcement policies that have measurably affected drunk driving.
The campaign powerfully demonstrated the use of information to set
health policy.
133. Randall Rothenberg, Bush to Lead Televised Plea on Sober Driving on
Holidays, N.Y. TIMES, Dec. 20, 1990, at B20.
134. Id.
135. Itzhak Yanovitsky, Effect of News Coverage on the Prevalence of
Drunk-Driving Behavior: Evidence from a Longitudinal Study, 63 J. STUD.
ALCOHOL 342, 349 (2002).
136. William DeJong & Jay A. Winsten, The Use of Designated Drivers by
US College Students: A National Study, 47 J. AM. C. HEALTH 151, 151 (1999).
137. See id.
138. Yanovitsky, supra note 135, at 345.
139. Id. at 349.
140. Id.; see also Toben Nelson et al., Factors Associated with Planned
Avoidance of Alcohol-Impaired Driving in High-Risk Men, 60 J. STUD.
ALCOHOL 407, 407 (1999).

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 385

The Designated Driver campaign also demonstrated the some-
times unexpected consequences of altering the informational
environment. While studies are ongoing, it appears that the desig-
nated driver campaign had some unintended and harmful effects.141
Specifically, preliminary data suggested that use of designated
drivers is associated with an increase in binge drinking.142 Addi-
tionally, among college students and younger drivers, preliminary
data indicates that the campaign may put women at risk for increased
violence.143 If not properly trained and supported, women who
attempt to intervene with an intoxicated male partner may risk
physical or verbal abuse.144 As this example reminds us, the
informational environment is complex and multifactorial, and the
relationship between speech and health is not always easy to predict.
C. Information, Trust, and Population Health
So far, we have discussed the role that speech and information
can have on a population’s health by influencing individual decisions
and behaviors, the social environment in which individuals make
decisions, and the public response to health threats. There is another,
perhaps more subtle way that speech and information can affect
public health: by promoting or undermining trust, a major component
of the social capital that is critical for effective public health.
In recent years, scholars and theorists have explored the inter-
related concepts of trust and “social capital.” According to Francis
Fukuyama, “[t]rust is the expectation that arises within a community
of regular, honest, and cooperative behavior, based on commonly
shared norms . . . .”145 At the individual level, trust may be critical to
establishing an effective therapeutic relationship between patient and
health care provider.146 At the population level, trust may be
141. See Nelson et al., supra note 140, at 411.
142. DeJong & Winsten, supra note 136, at 155.
143. Nelson et al., supra note 140, at 411.
144. Id.
145. Jonathan R. Macey, Cynicism and Trust in Politics and Constitutional
Theory, 87 CORNELL L. REV. 280, 280 (2002) (quoting FRANCIS FUKUYAMA,
TRUST: THE SOCIAL VIRTUES AND THE CREATION OF PROSPERITY 26 (1995)).
146. L. Ebony Boulware et al., Race and Trust in the Health Care System,
118 PUB. HEALTH REP. 358, 359 (2003); David Mechanic, The Functions and
Limitations of Trust in the Provision of Medical Care, 23 J. HEALTH POL.
POL’Y & L. 661, 662 (1998).

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 387

When individuals feel little connection to others they may be more
inclined to see health issues as individualistic and to resist
investment in public health resources.154 This privatization of
healthcare obviously disadvantages those who are poor and lack the
assets to invest in their own health, but it also may disadvantage
those who are economically well off but find that they have health
problems that individual efforts cannot alone resolve. Consider, for
example, a wealthy person who has a coronary attack in a
community that lacks a good public emergency medical response or
well-supplied emergency room.
A closely related reason why social capital may be positively
associated with public health is that social capital can diminish
collective action problems.155 In communities in which individuals
are connected to and trust one another, collective action problems
become less costly to solve.156 Individuals can predict, with greater
assurance, that others will also act in ways that maximize the
community’s well being.157 In these circumstances, it makes more
sense for individuals to act in ways conducive to the public good.158
Public health frequently implicates collective action problems;
indeed, one can understand public health to be at least a partial
public good.159 The public nature of public health is most obvious
with respect to infectious diseases and the techniques for preventing
or retarding their spread. For example, vaccination confers a public
benefit because it extends protection to the community at large rather
are disparately impacted by a lack of social capital and public investment.
154. Id.
155. Mazzone, supra note 148, at 420.
156. See id. at 427. David Mechanic states that “trust is an essential ‘glue’
that holds communities together and allows us to pursue our affairs without
excessive suspicion, policing, and regulation. The erosion of trust, therefore,
damages the effectiveness of medical interventions, and invites legislative and
regulatory micromanagement of health affairs.” Mechanic, supra note 146, at
662.
157. See Mazzone, supra note 148, at 421; Mechanic, supra note 146,
at 662.
158. Mazzone, supra note 148, at 421.
159. See David Woodward & Richard D. Smith, Global Public Goods and
Health: Concepts and Issues, in GLOBAL PUBLIC GOODS FOR HEALTH:
HEALTH ECONOMIC AND PUBLIC HEALTH PERSPECTIVES 3, 9 (Richard Smith
et al. eds., 2003). Illingworth notes that trust is also a public good. See
Patricia Illingworth, Bluffing, Puffing and Spinning in Managed-Care
Organizations, in ETHICAL HEALTH CARE, supra note 150, at 271, 278–79.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 389

capital, individuals may decide to ignore the interests of others,
presuming that others will do likewise. In this “each person for
themselves” milieu, individuals may be more apt to endanger the
health and safety of others.
The trust and social capital that nurtures public health depends,
in many ways, upon both the existence and nature of speech.163 This
is so for several reasons. First, the very act of speech operates as a
sign of respect. By speaking to someone, by providing them with
information, a speaker is signaling his or her respect for the dignity
and agency of the listener. This display of respect and dignity can
help the listener trust the speaker. Of course, as we shall discuss
shortly, deceitful or harmful speech undermines trust.
The literature pertaining to the relationship between physicians
and patients and the role of informed consent has frequently noted
and discussed the relationship between speech and trust. For
example, in Canterbury v. Spence,164 one of the seminal informed
consent cases, the court characterized the physician’s obligation to
provide patients with information about medical procedures as an
obligation arising from the physician’s fiduciary or trust relationship
with the patient.165 To merely act upon a patient, without providing
the patient with information sufficient to make an informed choice,
demonstrates disrespect for and undermines the agency of the patient
and constitutes a breach of trust. Perhaps for this reason, patients are
more apt to trust and follow interventions suggested by physicians
who take the time to explain clinical benefits and risks.166
Likewise, populations may be more likely to trust and comply
with public health suggestions when information is provided to them
about the need for and reasons behind public health recommen-
dations.167 Few people and fewer communities, are willing to accept
163. In turn, trust facilitates speech, as people are more apt to speak with and
reveal more information to those in whom they trust. See Illingworth, supra
note 159, at 278.
164. 464 F.2d 772 (D.C. Cir. 1972).
165. Id. at 782.
166. Ronald M. Epstein et al., Communicating Evidence for Participatory
Decision Making, 291 JAMA 2359, 2359 (2004); Parmet, supra note 160, at
82; David H. Thom et al., Measuring Patients’ Trust in Physicians When
Assessing Quality of Care, 23 HEALTH AFF. 124, 124–26 (2004).
167. Likewise, at the individual level, trust in physicians seems to facilitate
compliance with their orders. Thom et al., supra note 166, at 124.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
390 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

“just do it,” or “trust me” for long. Thus, studies of Toronto’s
experience with the SARS virus highlight the role of public health
information and public health hotlines in promoting compliance with
voluntary quarantines.168 Had public health officials not given the
population sufficient information to understand the importance of
quarantines, and had social capital been weaker in the area in the first
place, many more people may have been unwilling to accept public
health requests to stay at home. Likewise, people are generally more
willing to follow recommendations and vaccinate their children if
they are given information about the benefits of vaccination.169
Speech can also foster trust by allowing individuals to engage
with one another, promoting reciprocity and the development of
common norms. As Ellen Goodman reminds us, “[c]ommunication
is . . . embedded, lexically and conceptually, in community,
communion, and common.”170 The social process includes
communication and the sharing of ideas, which are among the ways
in which individuals within democratic societies connect to each
other and develop their cultural and legal norms. Indeed, many
scholars have identified speech as an integral part of the deliberative
process that helps to constitute democracy.171 Cass Sunstein goes
further and sees this deliberative aspect of speech as an animating
rationale for the First Amendment.172 He writes: “The belief that
politics lies at the core of the [First] [A]mendment is an outgrowth of
the more general structural commitment to deliberative
democracy.”173
People in a democratic state debate and deliberate about policies
affecting public health, in addition to other issues and interests. In
this sense, speech helps to shape the contours of public health policy,
and thereby public health. As a result, the very process of commu-
nicating and exchanging ideas can itself promote cooperative
behavior and trust,174 which, as we have seen, can affect public
168. Parmet, supra note 160, at 99–100.
169. Id. at 104.
170. Ellen P. Goodman, Media Policy out of the Box: Content Abundance,
Attention Scarcity, and the Failures of Digital Markets, 19 BERKELEY TECH.
L.J. 1389, 1405 (2004).
171. See, e.g., infra note 459.
172. See Sunstein, supra note 57, at 314.
173. Id.
174. Mazzone, supra note 148, at 429.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
392 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

IV. INFORMATION AND OBESITY
Overweight and obesity are pressing threats to public health.179
In the past two decades, there has been a steady and striking increase
in the prevalence of overweight and obesity in the United States.180
In 1999, 34% of US adults were overweight and 27% were obese.181
The increase in the prevalence of childhood obesity has caused
significant alarm in the public health community:
Over the past three decades since the 1970s, the prevalence
of childhood obesity . . . has more than doubled for
preschool children aged 2 to 5 years and adolescents aged
12 to 19 years, and it has more than tripled for children
aged 6 to 11 years. Approximately nine million American
children over 6 years of age are already considered obese.182
Overweight and obesity are associated with myriad diseases and
conditions.183 Most troubling among children is the explosive rise in
type 2 diabetes.184 The number of children developing this condition
is staggering. It is estimated that children born in 2000 in the United
States have between a 30% and 40% chance of being diagnosed with
diabetes at some point in their lives if obesity rates level off.185 Left
unaddressed, the pediatric obesity epidemic is expected to produce a
population in which amputation, heart disease, stroke, metabolic
179. The Centers for Disease Control and Prevention define obesity, for
adults, as having a BMI greater than or equal to 30 kg/m2. CTRS. FOR DISEASE
CONTROL & PREVENTION, U.S. DEP’T OF HEALTH & HUMAN SERVS.,
OVERWEIGHT AND OBESITY: DEFINING OVERWEIGHT AND OBESITY,
http://www.cdc.gov/nccdphp/dnpa/obesity/defining.htm (last visited Nov. 13,
2005). They define overweight, for adults, as having a BMI between 25 kg/m2
and 29.99 kg/m2. Id. While overweight and obesity are distinct clinical
conditions, we will refer generally to the “obesity epidemic” by which we
mean to include the epidemics of overweight and obesity unless otherwise
specified.
180. See U.S. DEP’T OF HEALTH & HUMAN SERVS., THE SURGEON
GENERAL’S CALL TO ACTION TO PREVENT AND DECREASE OVERWEIGHT AND
OBESITY 10 (2001), http://www.surgeongeneral.gov/topics/obesity/callto
action/CalltoAction.pdf.
181. Id.
182. INST. OF MED. OF, PREVENTING CHILDHOOD OBESITY 22 (Jeffrey P.
Koplan et al. eds., 2005) (citations omitted).
183. See id. at 67.
184. See id.
185. Id. at 67–68.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 393

syndrome, and hypertension will be commonplace among adults.186
Obesity and overweight are also poised to directly affect life
expectancy in the United States.187
The economic and social costs of obesity are difficult to
compute. Socially and psychologically, obesity takes a great toll on
children. Obese adolescents are more prone to emotional and behav-
ioral problems and are more likely to develop psychopathologies in
both adolescence and adulthood.188 Also, overweight and obese
children are more likely to be the victims of verbal bullying and
physical aggression.189 Overweight and obesity in children can
disrupt social development and facilitate the disruption of social
relationships and interactions.190


186. Id. at 69.
187. See Katherine M. Flegal et al., Excess Deaths Associated with
Underweight, Overweight, and Obesity, 293 JAMA 1861, 1863–65 (2005).
There was some controversy in 2005 when the researchers at CDC reported
that earlier studies estimating deaths related to obesity at approximately
365,000 were probably too high, and that the actual number of excess deaths
associated with obesity was only about 111,000. See id. The new study also
indicated that being overweight may have a slight protective effect. Id. at
1864. Needless to say, the food industry and others promoted the study
suggesting that previous public health warnings were exaggerated and that
overweight might even be “good for you.” See, e.g., The Center for Consumer
Freedom, http://www.consumerfreedom.com/news_detail.cfm/headline/2790
(last visited Nov. 13, 2005). This perspective was not based on a careful
reading of the study. The prevalence of obesity remains unchanged, and
obesity and overweight are serious public health problems. The slight
protective effect described is associated more with the elderly overweight
where underweight is a serious problem and where slight overweight can be
beneficial. See Flegal, supra at 1864. The study also is unable to account for
the availability of advanced medical technology in the clinical treatment of
overweight and obesity. See, e.g., Bruce M. Wolfe & John M. Morton,
Weighing in on Bariatric Surgery: Procedure Use, Readmission Rates, and
Mortality, 294 JAMA 1960 (2005) (discussing the increased use and popularity
of bypass procedures in the treatment of obesity). The issues around these
studies are complex. The recent symposium at Harvard on these studies
provides an in-depth analysis. See Weighing the Evidence: Symposium on
Overweight, Obesity and Mortality (May 26, 2005), http://www.hsph.harvard.
edu/weighing_the_evidence/.
188. See Serpil Erermis et al., Is Obesity a Risk Factor for Psychopathology
Among Adolescents?, 46 PEDIATRICS INT’L 296, 296, 298, 300 (2004).
189. See id. at 300.
190. Id.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
394 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

Analysts expect the economic costs of obesity to be hundreds of
billions of dollars.191 The prevalence of obesity drives increased
private health insurance spending.192 Direct costs associated with
overweight and obesity totaled $75 billion in 2003.193 Increases in
the rate of obesity among children would only increase costs
associated with the condition.194 Given the seriousness of this
epidemic, it is worth examining all the environmental factors
affecting children, including information.
Speech influences overweight and obesity. The contemporary
environment faces a deluge of speech relating to food, diet, activity,
and body image. Some of this speech comes from the government,
including health agencies. Some of this speech comes from
individuals, family members, and friends. The press and popular
media are also sources of speech. More speech comes from indus-
tries that have a particular economic interest in influencing how
people think about food and their bodies, as well as how they eat. In
the sections below, we survey some of this speech and demonstrate
the different pathways by which it affects the population’s risk of
obesity. In so doing, we focus particular attention on the commercial
speech of the food industry. We do so not because it is the only
speech in the informational environment, but because it is both a
critical health determinant and a likely target of government regu-
lation.
A. The Cultural Impact of Food Advertising
As we discussed in Part III, speech can influence health via
multiple pathways. Culture is one important pathway. Speech
191. See INST. OF MED., supra note 182, at 70.
192. See Interview by Larry Levitt, kaisernetwork.org, with Kenneth E.
Thorpe, Emory University, (June 27, 2005), in W5 HEALTH AFF. 317 available
at http://www.kaisernetwork.org/health_cast/uploaded_files/062805_ha_thorpe
_transcript.pdf.
193. Allison C. Morrill & Christopher Chinn, The Obesity Epidemic in the
United States, 25 J. PUB. HEALTH POL’Y 353, 357 (2004).
194. We note here that obesity and overweight are not public health
problems merely because of their social costs. Obesity is a public health
problem, as opposed to only a clinical, individual problem, because, as we
discuss below, its causes are social and ecological. The environmental effects
of a growing prevalence of overweight and obesity further exacerbate the
epidemic. The ecological model and obesity as a public health problem are
nicely described in Egger & Swinburn, supra note 63, at 477–80.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 397

advertising for chicken sandwiches inspired him to found his band.214
The Web site has news, clippings, music videos, and images from
concerts.215 The entire site sells an image, a cultural role. Only by
drilling down into the site does one find a link to Burger King’s main
Web site. The entire Coq Roq site is advertising, yet it transmits no
information about the product.216 The purpose of this advertisement
is not to convey information about Burger King chicken sandwiches,
but to associate the product with rebellion, independent music,
grunge bands from the 90’s, and sexual and artistic independence.
Purchasing Burger King sandwiches will communicate these ideas to
others.217
Wrigley gum provides an historic example. When Wrigley
began selling his gum in the early twentieth century, there were
generally negative associations with chewing.218 It was associated
with the lower classes and with those who rode “street cars” and
attended “burlesque house[s].”219 Using advertising and promotional
giveaways, Wrigley was able to turn chewing gum, traditionally a
purely discretionary purchase, into a major industry and an icon of
American advertising.220 Wrigley associated the gum with health,
vitality and innocence.221 The Wrigley “Spearman” was an espe-
cially useful marketing tool and was used to target children and
mothers:
The Spearman first appeared in a Mother Goose
promotional booklet that Wrigley issued in 1915. The 16-
page booklet featured the Spearman in various Mother
Goose settings, complete with chewing gum and Wrigley
214. The previous advertising was the “Subservient Chicken” campaign. Id.;
see also Burger King Brands, Inc., Subservient Chicken Web site,
http://www.subservientchicken.com (last visited Oct. 31, 2005).
215. Burger King Brands, Inc., supra note 211.
216. See id.
217. This association of products with cultural roles has been identified as a
“Diderot Unity.” See GRANT MCCRACKEN, CULTURE AND CONSUMPTION 119
(1988). Simply, the Diderot Unity is the unification of cultural roles with
products. See id. at 119. The theory of Diderot Unities, and by implication the
Diderot Effect, are driving principles of modern commercial speech. See id. at
118.
218. Robinson, supra note 210, at 22.
219. Id.
220. See id. at 5.
221. See id. at 39.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 399

advertising increases the number of attempts children make
to influence food purchases their parents buy; 3) purchase
requests for specific brands or categories of food products
also reflect product advertising frequencies . . . .226
Food marketers understand this, and they understand modern
children, targeting them accordingly.227 Children spend more money
than ever as consumers, and marketers target their individual
behavior to capture that spending power.228 Children influence adult
purchasing (e.g., “the nag factor”), and marketers target these social
relationships and cultural characteristics.229 While more research is
required, it is clear that advertising works: “Based on children’s
commercial recall and product preferences, it is evident that adver-
tising achieves its intended effects, and an extensive systematic
literature review concludes that food advertisements promote food
purchase requests by children to parents, have an impact on
children’s product and brand preferences, and affect consumption
behavior.”230
Building brand recognition and preference is also important, as
establishing brand preference is often sufficient to affect consump-
tion behavior.231 As noted above, modern advertising and consump-
tion seeks to sell cultural roles, rather than products, by associating a
product/brand with a particular cultural attribute.232 These
associations are important because of the “Diderot Effect.”233
Advertising imbues meaning in things and these meanings are
conceptually grouped together.234 The effect is a “force that
encourages the individual to maintain a cultural consistency in
his/her complement of consumer goods.”235 On the one hand, this
226. Story & French, supra note 225, at 11.
227. Id. at 3. We use the term “target” to describe advertising to children
because it is the advertising industry term for directing a message at a
particular population. See Best Knows, Target Audience, http://en.mimi.hu/
marketingweb/target_audience.html (last visited Nov. 13, 2005).
228. See SCHOR, supra note 198, at 23.
229. See id. at 23–24.
230. INST. OF MED., supra note 182, at 173 (citations omitted).
231. See SCHOR, supra note 198, at 125–26.
232. See supra text accompanying notes 208–24.
233. MCCRACKEN, supra note 217, at 118–19.
234. See id. at 119.
235. Id. at 123.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 401

B. Advertising Directed to Children in Schools:
Targeting Purchasers via Their Culture
Schools provide important environments for children. In school,
children not only study a prescribed curriculum; they socialize, they
acculturate, they eat, and they become active or inactive. The school
environment, which includes the informational environment within a
school, shapes children socially, intellectually, and physically.244
Importantly, children face limited options as to how they will interact
with their school’s environment. Schools are relatively closed
environments that limit what children can do and how they can
respond to their environment.
Recently, food companies have played an increasing role in
influencing the informational environment within schools, taking
advantage of the opportunity that schools present to influence the
behaviors of the captive population of children.245 For example,
exclusive contracts that place vending machines in schools not only
provide students with beverages that directly influence their health,
they also send students a message about what should be consumed
and the meaning of particular brands.246 In addition, many com-
panies provide scholarships to students to attend college, sponsor
clubs and activities, and integrate themselves into every facet of the
school community.247 At the end of a child’s public schooling, the
244. Susan Harter, Teacher and Classmate Influences on Scholastic
Motivation, Self-esteem, and Level of Voice in Adolescents, in SOCIAL
MOTIVATION: UNDERSTANDING CHILDREN’S SCHOOL ADJUSTMENT 11, 11
(Jaana Juvonen & Kathryn R. Wentzel eds., 1996).
245. See, e.g., NICOLA PINSON, SCHOOL SODA CONTRACTS: A SAMPLE
REVIEW OF CONTRACTS IN OREGON PUBLIC SCHOOL DISTRICTS, 2004 (2004).
246. Contracts require that brands and anything with a soda brand on it be
visible at all times, that is, vending machines cannot be covered with posters or
hidden. Id. at 12. The soda companies may also donate scoreboards, soda, and
other materials to the schools, all of which are heavily branded. Id.
Exclusivity combined with the heavy advertising and restrictions essentially
capture the culture of the school in terms of soda vending. See id. at 6–7.
Contract terms provide further incentive for the school district to promote sale
of the soda. Id. at 7–11; see also contracts on file with authors.
247. See, e.g., The Coca-Cola Scholars Foundation, https://www.coca-
colascholars.org/cokeWeb/jsp/scholars/Index.jsp (last visited Nov. 14, 2005);
General Mills Foundation, http://www.generalmills.com/corporate/commit
ment/foundation.aspx (last visited Nov. 14, 2005); Hormel Foods, 10 Hormel
Foods Charitable Trust Scholarships Awarded (Apr. 21, 2005), http:/
/media.hormel.com/templates/knowledge/knowledge.asp?catitemid=2&id=284

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
402 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

child will come to associate a particular brand with his or her school
sports teams, after-school activities, yearbook, school dances, and
graduation. The soda brand will be associated with the student’s
education, school experience, adolescence, first school dances, and
other key moments in development. Ultimately, the “good old days”
of an individual’s youth will be synonymous with “Coke” and
“Pepsi.” In addition, the child will carry knowledge of the brand to
adulthood, affecting future choices.
Contracts between soda companies and schools are not the only
way that food advertising enters schools. Channel One, which
produces twelve minute “news broadcasts,” is piped into 12,000
middle and high schools throughout the country, reaching eight
million students.248 Schools with Channel One contracts are required
to show the twelve minute broadcast in its entirety—which includes
two minutes of commercials.249 The majority of this advertising on
Channel One is for junk food.250 Studies indicate that Channel One
advertising affects students’ brand preferences, and students often
incorporate brands and commercial images into their assignments
and school activities.251 The messages of food companies become
part of the school’s fabric and the children’s environment.
Of course, food company messages are not the only information
children receive about food and nutrition while at school. Many
schools attempt to provide meals and instruction that comply with
dietary guidelines.252 While nutritional counseling is important, it
cannot completely counteract industry influence. As Marion Nestle
notes, the food industry is heavily involved in drafting the guidelines
that influence the curriculum.253


(last visited Nov. 14, 2005).
248. Channel One Network, About Channel One, http://www.channelone
.com/common/about/ (last visited Sept. 26, 2005).
249. SUSAN LINN, CONSUMING KIDS: THE HOSTILE TAKEOVER OF
CHILDHOOD 81–82 (2004).
250. SCHOR, supra note 198, at 129.
251. LINN, supra note 249, at 84.
252. See MARION NESTLE, FOOD POLITICS: HOW THE FOOD INDUSTRY
INFLUENCES NUTRITION AND HEALTH 192 (2002).
253. See id. at 193–94.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 405

To develop these ads, advertisers conduct enormous amounts of
ethnographic research in homes.273 They aim to understand the goals
of parents in feeding their children, to understand parental concepts
of “healthy foods,” and to document the relationships between
parents and children.274 This information then becomes the basis for
the food industry’s advertising that seeks to exploit familial
relationships to sell products.275 Schor recounts the experience of
one marketing researcher doing research for cookies.276 The
researcher spent time with the families, learned what mothers
considered “healthy,” and examined how families interacted around
Oreo cookies.277 This information was later used to design
campaigns that associated the products with words like “health” and
“wholesome.”278
As noted above, the goal of such research is not to learn how to
convey information about the product itself.279 The research is used
to create images of a culture that children rely upon when they define
themselves and interact with others. Food becomes a communicative
symbol for the parents and children as industry capitalizes on the
trust in the parent-child relationship in order to facilitate consump-
tion. By targeting the parent-child relationship, food advertisers risk
straining a relationship that is critical not only for the well being of
individual children but for society writ large.
Moreover, research on commercial speech demonstrates that it
affects obesity by influencing the cultural and social environment.280
As a result, speech is not simply a determinant of individual health; it
is a social determinant of population health. Hence, serious
discussions of potential interventions aimed at retarding the obesity
epidemic will under-standably include policies that may affect
speech. Whether the First Amendment may permit such policies is
discussed in the next Part.
273. Id. at 131.
274. Id.
275. Id.
276. Id.
277. Id.
278. Id.
279. See supra text accompanying note 210.
280. See SCHOR, supra note 198, at 126.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
406 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

V. THE FIRST AMENDMENT AND PUBLIC HEALTH
A. Free Speech and Health
Over the last several decades, the Supreme Court has
increasingly read the First Amendment as providing broad and robust
immunity for speech.281 This protection permits an information
environment in which health information may be disseminated and
health policies can be debated.282 It also enables the public dialog
about health and health policies that are critical to the maintenance of
trust and social capital.283 Thus, broad First Amendment protection
may be supportive, if not necessary, for the development of an
informational environment that safeguards public health. Arguably,
that has been the case with respect to many health threats.
For example, when the AIDS epidemic developed in the 1980s,
there were no medical treatments available to counter the impact of
the HIV virus.284 Control of the epidemic and prevention of death
required that individuals adopt less risky behaviors, that cultural
norms change, public policies be developed, and communities at
heightened risk trust health and public health workers.285 For each of
281. Modern First Amendment jurisprudence dates less than fifty years, to
Brandenburg v. Ohio, 395 U.S. 444 (1969). Previously, the Supreme Court’s
approach to the First Amendment was far more guarded, leaving government
with considerable latitude for prohibiting many forms of speech. Id. at 447
(discussing Whitney v. California, 274 U.S. 357 (1927)). In the years since
Brandenburg, the Court has decided many important cases expanding the
swath of protection afforded by the First Amendment. See, e.g., Reno v.
ACLU, 521 U.S. 844 (1997); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992);
Texas v. Johnson, 491 U.S. 397 (1989); Va. State Bd. of Pharmacy v. Va.
Citizens Consumer Council, Inc., 425 U.S. 748 (1976). As discussed in Part
III, this heightened degree of protection for speech can be understood in light
of the increasing importance of speech to our economic and social life and the
varying degrees of protection given different constitutional rights in different
eras.
282. See LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW: POWER, DUTY,
RESTRAINT 146 (2000).
283. See id. at 147. In this way, First Amendment protection for speech
relating to health can be justified for the same reasons given to justify First
Amendment protection for political speech.
284. See U.S. Food and Drug Administration, Approval of AZT (Mar. 20,
1987), http://www.fda.gov/bbs/topics/NEWS/NEW00217.html (announcing
the first FDA-approved treatment of AIDS).
285. See Larry Gostin, Traditional Public Health Strategies, in AIDS LAW
TODAY: A NEW GUIDE FOR THE PUBLIC, supra note 60, at 59, 77–78.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 407

these to occur, all of the pathways through which speech influences
health populations had to be utilized. But given the sensitive, and
often sexually explicit, nature of the information, many objected to
the public conveyance of HIV-related information.286 In this case,
the broad protections offered by the First Amendment helped to
ensure the availability of information that the public needed to
protect health.287
However, free speech has not always benefited public health.
As discussed in Part IV, the informational environment includes
much information that may exacerbate the obesity problem. In
particular, the food industry and media have used speech in ways that
appear to have increased the incidence of overweight and obesity
among children, altering their culture and the public policies that
affect them.288 Much, if not most, of this health-harming speech has
been commercial speech, in that it has been aimed directly at
promoting the sale of a product.289 Hence, an absolutist position on
the First Amendment, particularly as it applies to commercial speech,
may interfere with and impede the ability of governments (state
and/or federal) to intervene and protect children from a health-
impairing information environment.
In this Part, we explore how First Amendment law applies to
public health protection with respect to obesity as well as what it
would mean to integrate into First Amendment analysis a population-
based perspective that is cognizant of the multi-factorial, population-
based pathways by which speech affects public health. We focus our
286. For a discussion about these debates and the attempts that were made to
limit HIV-related speech, see RONALD BAYER, PRIVATE ACTS, SOCIAL
CONSEQUENCES 211–13 (1989); Burris, supra note 60, at 96–107.
287. See, e.g., AIDS Action Comm. of Mass., Inc. v. Mass. Bay Transp.
Auth., 42 F.3d 1, 3 (1st Cir. 1994) (holding that the Transit Authority’s refusal
to run certain ads providing HIV information was a violation of the First
Amendment). In some situations, the First Amendment proved less efficacious
in ensuring free speech in the HIV context because governments attached
conditions limiting speech supported by government grants. Burris, supra note
60, at 100. As Burris notes, at the time, governments were given wide latitude
in attaching limitations on speech as a condition for receiving funding. Id. For
further discussion on government sponsored speech, see infra text
accompanying notes 420–26.
288. See supra text accompanying notes 182–252.
289. As many have recognized, it is often difficult to distinguish commercial
speech from other forms of speech. For a discussion of that problem, see Nike,
Inc. v. Kasky, 539 U.S. 654, 665–84 (2003) (Breyer, J., dissenting).

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 409

Despite the clarity of the majority’s pronouncements, the fact that
Bigelow concerned an advertisement for abortion services and that
the Supreme Court had only recently articulated a woman’s right to
an abortion,294 left many uncertain whether the Court was signaling
wide-scale protection for commercial speech or simply providing
extra scrutiny for abortion regulations.295
The Court provided the answer the following term in Virginia
State Board of Pharmacy v. Virginia Citizens Consumer Council,
Inc.296 In striking down a Virginia law limiting the advertisement of
health care services, the majority explained that speech should not
lose its protection merely because the speaker utters it with an
economic intent.297 In support of this conclusion, the majority noted
the difficulty of distinguishing commercial speech from other forms
of speech298 and pointed out that “[t]he interests of the contestants in
a labor dispute are primarily economic, but it has long been settled
that both the employee and the employer are protected by the First
Amendment when they express themselves on the merits of the
dispute . . . .”299 In addition, the majority argued, consumers may
have “as keen, if not [a] keener” interest in receiving commercial
294. See Roe v. Wade, 410 U.S. 113 (1973).
295. See Va. State Bd. of Pharmacy, 425 U.S. at 760.
296. Id. (striking down a Virginia law prohibiting pharmacists from
advertising drug prices).
297. Id. at 762.
298. The difficulty in distinguishing commercial speech from other forms of
speech is certainly real, especially in today’s informational environment in
which commercial products are marketed in forums other than traditional
advertising while traditional non-commercial sources of information, such as
the press, are increasingly owned by large conglomerates that exercise
influence over what is and is not said. See Collins & Skover, supra note 208,
at 698. In this environment, it would truly be difficult to determine what
speech is commercial and what is not. Another alternative approach to the
issue is to distinguish speech by the nature of the speaker. More precisely,
commentators have questioned whether the First Amendment should apply to
corporate speech, because corporations are state-created entities and should not
qualify for many of the personal, autonomy-based rationales that have been
used to explain the First Amendment’s preference for speech. See Bruce
Ledewitz, Corporate Advertising’s Democracy, 12 B.U. PUB. INT. L.J. 389,
411 (2003). The problem with this approach, besides its lack of support by the
Court, is that it might fail to provide full First Amendment protection for many
organized advocacy groups, permitting the government to ban clearly political
discourse.
299. Va. State Bd. of Pharmacy, 425 U.S. at 762.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 411

focused on the direct pathway, seeing advertisements as providing
information directly to individual, presumably rational, consumers
who could use that information to make their own, best, individual
choices.
Despite these arguments for placing commercial speech under
the umbrella of the First Amendment,308 the Virginia Board of
Pharmacy Court recognized that “commonsense differences” exist
between commercial speech and other protected forms of speech
thereby justifying different degrees of constitutional protection.309 In
particular, the majority noted that the truth or falsehood of
commercial speech may be more easily determined by the speaker
than is the case with other forms of speech.310 Moreover, they
opined that commercial speech might be more “durable” and less
easily chilled than other forms of speech.311 As a result, while the
First Amendment protected commercial speech, the Court left open
the degree, the extent, and the nature of permissible regulations
under the First Amendment.
In the years immediately following Virginia Board of
Pharmacy, the Court frequently confronted the question that case left
unanswered: under what circumstances would regulations of
commercial speech be upheld?312 In 1980, in Central Hudson Gas &
Electric Corp. v. Public Service Commission of New York,313 the
advertisements inform individuals and that they can use this information in a
rational way to act in their own best interest, have been subject to substantial
critique. For a particularly powerful repudiation, see Collins & Skover, supra
note 208.
308. In doing so, the Court was deciding to treat commercial speech
differently from other forms of speech that the Court had held were
“unprotected” and therefore outside of the scope of the First Amendment. See,
e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (holding that
“fighting words” are not protected by the First Amendment); Roth v. United
States, 354 U.S. 476, 485 (1957) (holding that obscenity is not protected by the
First Amendment).
309. Va. State Bd. of Pharmacy, 425 U.S. at 771 n.24.
310. Id. The Court also made it clear that commercial speech that is false is
not protected. Id. at 771.
311. Id. at 772 n.24.
312. See, e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978)
(addressing a State’s ability to regulate a lawyer’s solicitation of clients); Bates
v. State Bar, 433 U.S. 350 (1977) (addressing the regulation of advertisements
for routine attorney services).
313. 447 U.S. 557 (1980).

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
414 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

At other times, especially in recent years, the Court has applied the
test with greater rigor, making it difficult for state regulations of
commercial speech to pass constitutional muster.331
Two relatively recent cases are especially indicative of both the
trajectory of the commercial speech doctrine as well as its potential
impact on public health regulations. The first case, Lorillard
Tobacco Co. v. Reilly,332 questioned the constitutionality of a
comprehensive set of regulations designed to shield children from
advertisements for cigars and smokeless tobacco.333 In an opinion by
Justice O’Connor, the Court first re-affirmed and then applied the
Central Hudson test.334 The Court began by noting that only the
third and fourth parts of the test were actually at issue as the parties
had conceded both that the regulations pertained to truthful speech
about a legal product and that the state had an important interest in
preventing tobacco use by minors.335 The debate concerned the
relationship between the regulations and that state interest—whether
the state could show that the regulations directly advanced its interest
and were no broader than was needed to do so.336
In analyzing these prongs of Central Hudson, the majority
acknowledged and reviewed the considerable empirical evidence that
demonstrated that advertising stimulated demand among minors for
lottery is state-run and the broadcaster is licensed by a state that runs a lottery);
Posadas de P.R. Assoc. v. Tourism Co. of P.R., 478 U.S. 328, 328–30 (1986)
(upholding a ban on the advertising of casino gambling).
331. See, e.g., Rubin v. Coors Brewing Co., 514 U.S. 476, 476–77 (1995)
(striking down a state law prohibiting the display of alcohol content on beer
labels). Commentators have noted the increasing rigor with which the Court
has reviewed commercial speech regulations. See Lawrence O. Gostin & Gail
H. Javitt, Health Promotion and the First Amendment: Government Control of
the Informational Environment, 79 MILBANK Q. 547, 557–59 (2001).
332. 533 U.S. 525 (2001).
333. Id. at 533–36. The state also promulgated regulations aimed at cigarette
marketing. Id. at 532. These regulations were struck down by the Court as
preempted by the Federal Cigarette Labeling and Advertising Act. Id. at 551.
334. Id. at 554–55.
335. Id. at 555. In his dissent, Justice Thomas questioned whether a state
had a legitimate interest in regulating speech aimed at children. Id. at 581
(Thomas, J., dissenting). He noted, “We have held consistently that speech
‘cannot be suppressed solely to protect the young from ideas or images that a
legislative body thinks unsuitable for them.’” Id. (quoting Erznoznik v.
Jacksonville, 422 U.S. 205, 213–14 (1975)).
336. Id. at 555–56.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 415

cigars and smokeless tobacco.337 In so doing, the majority seemed to
recognize that advertising does not only speak to individuals
rationally and directly, by offering them information, but also
indirectly and irrationally, by forming associations between products
and images such as Joe Camel.338 In accepting this preference-
formation effect of advertising, the majority came close to under-
standing that speech operates not only directly on individuals, but
also indirectly, by changing cultural patterns and associations.339
What the majority did not see, however, was that its analysis cast
doubt on the rationale the Court had given in Virginia Board of
Pharmacy for providing strong constitutional protection for
commercial speech.340
After concluding in Lorillard Tobacco Co. that the state had
passed the third part of the Central Hudson test, the majority
nevertheless found the Massachusetts law unconstitutional, largely
on the theory that the regulations were overly broad and would place
an unnecessary burden on the interest of tobacco retailers and
manufacturers “in conveying truthful information about their
products to adults, and adults [who] have a corresponding interest in
receiving truthful information about tobacco products.”341 In
reaching this conclusion, the majority noted that regulations “cannot
unduly impinge on the speaker’s ability to propose a commercial
transaction and the adult listener’s opportunity to obtain information
about products.”342 The majority then found that the regulations did
just that because the ban on outdoor advertising within 1,000 feet of
a school or playground would prevent advertising in the vast
majority of locations in urban areas and would prohibit indoor
displays visible through windows as well as traditional outdoor
billboards.343 As a result, tobacco purveyors would have little ability
to advertise or communicate to adults about their goods.344
337. See id. at 560–61.
338. See id. at 561.
339. Id. at 558–61 (citing evidence in FDA studies of a direct correlation
between increased tobacco consumption among various population groups and
advertising efforts targeting those groups).
340. See supra text accompanying notes 300–07.
341. Lorillard Tobacco Co., 533 U.S. at 564.
342. Id. at 565.
343. Id. at 562.
344. The Court found that the regulations barred oral communication in the

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 417

metric of burdensomeness, but whether it is overly burdensome in
relation to the state’s regulatory interest.349 When public health
protection is the state’s goal, this means that the state should be
allowed to regulate only as far as is necessary to achieve the public
health goal. It does not and cannot mean that no burdens are
permitted, otherwise the state could never achieve its goal.
When looking at the outdoor advertising regulations, however,
the majority never inquired as to whether their breadth was necessary
to achieve the state’s goal. They looked instead only at the extent of
the burdens the regulations imposed upon tobacco sellers and
customers.350 For example, they noted that the regulations would bar
outdoor advertising in most urban areas.351 This was too burden-
some, they posited, because it would keep advertisers from being
able to convey information to adult consumers.352 However, the
majority did not ask whether there were other less burdensome ways
that the state could achieve its goal of shielding minors from the
preference-forming impact of outdoor advertising. If one accepts, as
the majority did, that that goal was a legitimate goal for a state to
pursue, and if one recalls that the goal was protecting not just an
individual child, but the state’s population of children, then it stands
to reason that the state might have to implement fairly broad and
wide-spread regulations that require advertisers and adults to
communicate through other media (for example, inside stores, or in
adult-oriented print media).353 Thus, despite the opinion’s initial
acceptance of limited regulations of commercial speech, the analysis
the Court applied was highly protective of commercial speech.
Indeed, it is difficult to imagine any regulation of cigar and smoke-
349. In Lorillard Tobacco Co., the majority accepted that the regulations
were sufficiently well-founded to survive the third part of the Central Hudson
test. See id. In other cases, the Court has accepted that the speech regulations
could in fact advance their stated goal. See, e.g., 44 Liquormart, Inc. v. Rhode
Island, 517 U.S. 484, 505–07 (1996) (Stevens, J., plurality opinion); Rubin v.
Coors Brewing Co., 514 U.S. 476, 488–89 (1995).
350. Lorillard Tobacco Co., 533 U.S. at 561–66.
351. Id. at 562–64.
352. Id. at 562.
353. The Court’s conclusions regarding the regulations barring indoor
advertisements under five feet seem more supportable. It is difficult to deny
that children could view advertisements that are 5.2 feet off the ground.
Hence, in contrast to the outdoor regulations, the point-of-sale regulations were
probably unlikely to have a major public health impact.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
418 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

less tobacco advertising significant enough to have a population-
health impact that could have survived the Court’s review.354
The Court’s rigorous application of the Central Hudson test is
also evident in Thompson v. Western States Medical Center.355 That
case concerned section 503A of the Food and Drug Administration
Modernization Act of 1997 (FDAMA),356 which exempted com-
pounded drugs357 from the standard Food and Drug Administration
process so long as the providers of such drugs did not advertise
them.358 In an opinion again written by Justice O’Connor, the Court
found that the proviso barring advertisements failed the Central
Hudson test.359
Once again, the Court assumed that the speech at issue was
truthful and that the government was seeking to promote a legitimate
purpose: assuring the availability of compounding drugs without
opening them up to commercial exploitation.360 The problem, as the
Court saw it, came from the fourth prong of the Central Hudson test,
354. In order for a regulation to have a substantial health-improving impact
across a broad population, it must necessarily be wide enough in its scope to
affect many people. Indeed, as Geoffrey Rose has shown, policies that affect
many people in minor or subtle ways may have a greater population effect than
those that affect a few at-risk people significantly. See Geoffrey Rose, Sick
Individuals and Sick Populations, in ETHICAL HEALTH CARE, supra note 150,
at 37, 37–44.
355. 535 U.S. 357 (2002).
356. 21 U.S.C. § 353a (2000).
357. According to the Court:
Drug compounding is a process by which a pharmacist or doctor
combines, mixes, or alters ingredients to create a medication tailored
to the needs of an individual patient. Compounding is typically used
to prepare medications that are not commercially available, such as
medication for a patient who is allergic to an ingredient in a mass-
produced product.
Thompson, 535 U.S. at 360–61.
358. 21 U.S.C. § 353a(c).
359. Thompson, 535 U.S. at 368–77.
360. Because they are individualized, compounding drugs cannot readily be
subject to the typical FDA approval process. See id. at 362. On the other
hand, the government was concerned that their exemption could be misused by
manufacturers to attempt to bypass FDA approval. See id. The government
argued that by barring advertising, the FDAMA drew a line, making it likely
that compounding would be used only in small-scale, individualized
operations, and that manufacturers would not seek to exploit the compounding
exemption because they would not want to lose their ability to advertise. See
id. at 370.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 419

which the Court stated required the government to show that it could
not achieve its purpose by any manner less restrictive of speech.361
In the instant case, the Court hypothesized several nonspeech related
approaches that the government could use to advance its goal.362 For
example, the Court suggested, the government could ban the use of
commercial scale manufacturing or testing equipment by compound-
ing pharmacists, or it could ban the sale of compounded drugs to
wholesale or retail establishments.363 Likewise, the government
could prohibit pharmacists from compounding drugs except in
response to a specific prescription.364
In his dissent, Justice Breyer explained why the methods
suggested by the majority would not suffice to achieve the
government’s goal of limiting the demand for compounded drugs to
those patients who actually need them.365 According to Justice
Breyer, compounding was inherently dangerous, as it offered
customers drugs that were unapproved and not tested for safety.366
For patients who have contraindications for commercially-available
drugs, the added risks of using an untested compounded drug may
well be worth the benefit.367 That would not be the case for most
individuals.368 Yet, as Justice Breyer explained, “[t]here is consi-
derable evidence that consumer oriented advertising will create
strong consumer-driven demand for a particular drug.”369 By
banning that advertising, the FDAMA could prevent the creation of
such a (medically unnecessary and dangerous) demand for com-
pounded drugs, leaving the consumer demand to that created by
medical need.370
361. Id. at 371.
362. Id. at 372.
363. Id.
364. Id.
365. See id. at 378–79 (Breyer, J., dissenting).
366. Id. at 382 (Breyer, J., dissenting).
367. Id. at 380 (Breyer, J., dissenting).
368. Id. at 383 (Breyer, J., dissenting).
369. Id. (Breyer, J., dissenting).
370. Id. at 384–85 (Breyer, J., dissenting). Justice Breyer noted that the
creation of this demand was not an individualistic or atomistic process, nor did
it affect only individuals. Id. at 387 (Breyer, J., dissenting). He noted, “Those
consequences flow from the adverse cumulative effects of multiple individual
decisions each of which may seem perfectly reasonable considered on its own.
The Government fears that, taken together, these apparently rational individual

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
422 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

mation that they can use when making decisions as to how or
whether to use a product. This information can enter the public
realm, and, at least in some circumstances, affect not only the health
of the individual consumers who see the warnings, but others, as the
information enters the culture and influences social norms and public
policies.383
Legislative and regulatory laws aimed at protecting public health
have also frequently included mandates to disclose information or
provide warnings.384 As Lawrence O. Gostin recounts:
[G]overnment requires businesses to label their products by
specifying the content or ingredients (e.g., foods and
cosmetics), the potential adverse effects (e.g., pharma-
ceuticals and vaccines), and the hazards (e.g., warnings on
packages of cigarettes, alcoholic beverages, or pesticides).
Second, government provides a “right to know” for
consumers (e.g., performance of managed care organi-
zations), workers (e.g., health and safety risks), and the
public (e.g., hazardous chemicals in drinking water). Third,
government mandates counter-advertising whereby industry
or the media must provide health education as a counter-
balance to advertisements of hazardous products (e.g.,
forced dissemination of anti-drinking or anti-smoking
messages).385

(discussing literature pertaining to the deterrent effect of malpractice law);
Daniel W. Shuman, The Psychology of Deterrence in Tort Law, 42 U. KAN. L.
REV. 115 (1993) (discussing social learning theory as applied to tort law and
suggesting the need for a modification of the tort system to increase deterrence
of undesirable behavior); Frank A. Sloan et al., Effects of Tort Liability and
Insurance on Heavy Drinking and Drinking and Driving, 38 J.L. & ECON. 49,
49–50 & n.1 (1995) (discussing an empirical study of the deterrent effect of
tort liability and noting the dearth of such studies).
383. Thus, warnings for commonly used products can become part of the
common knowledge within a society and influence its views and customs with
regard to a product, as well as the policies it enacts. Moreover, warnings read
by an individual user of a product can reduce the chance that the user’s use of
the product will harm a third party. For a further discussion of how
information to individual consumers can operate at this social or population
level, see supra text accompanying notes 109–40, 145–62.
384. GOSTIN, supra note 282, at 165.
385. Id. (footnotes omitted).

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 425

questions for laws (statutory, regulatory or tort) that compel the
disclosure of health information.
However, several factors have created uncertainty in the
application of these cases to most compelled public health
disclosures. First, as was noted above, although the Supreme Court
finds that commercial speech is entitled to First Amendment
protection, the Court has also recognized (over the objection of some
Justices) that differences exist between commercial speech and other
forms of speech and has continued to adhere to the Central Hudson
test when commercial speech is at issue.399 As seen in our discussion
of Lorillard Tobacco Co. and Western States, courts can apply this
test in such a manner as to approach the rigorous strict scrutiny they
utilize for non-commercial speech cases, but the Central Hudson
test, on its face, also leaves courts with more “wiggle room” to
uphold compelled speech in commercial speech cases.400 That the
Court might take advantage of this wiggle room in cases concerning
compelled speech was evident in Zauderer v. Office of Disciplinary
Counsel,401 in which the Court considered a state law regulating
attorney advertising.402 After finding that the First Amendment
barred the state’s attempt to ban the inclusion of certain information
in attorney ads, the Court rejected the claim that the same outcome
was required with respect to the state’s demand that attorneys include
information about fee arrangements in their advertisements.403
Distinguishing Barnette and Wooley, the Court held that the
state’s interests in the case at hand were dissimilar to those at issue in
the Court’s other compelled-speech cases.404 The state was not
trying to compel orthodoxy or force an opinion on anyone.405
Instead, the state was simply demanding that certain factual
information be included in advertising.406 Because the protection
given to commercial speech was justified, in part, by the fact that
advertising can provide consumers with information, the Court
treated requirements that commercial parties provide such infor-
399. See supra text accompanying notes 308–35.
400. See supra text accompanying notes 332–74.
401. 471 U.S. 626 (1985).
402. Id. at 629.
403. Id. at 647, 653.
404. Id. at 651.
405. Id.
406. Id.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
426 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

mation differently than other forms of compulsory speech.407 In
addition, the Court noted that in many commercial speech cases, the
justices had pointed to the possibility of requiring information or
labels as a less restrictive approach to the advertising bans that were
before the Court.408 In other words, compelled speech might be
understood as the preferred alternative that a party challenging a
speech ban could point to when asserting that a ban on speech
violates the fourth prong of Central Hudson.409 If that were the case,
and if states were to have any viable less restrictive means of
protecting the public from harms associated with advertising,
compelled speech might at times have to be accepted.410
An additional rationale for the idea that the Court may be, at
least in some circumstances, more tolerant of compelled commercial
speech than bans on such speech comes from the Court’s decision in
407. Id. In an opinion concurring in part and dissenting in part, Justice
Brennan agreed that a state may impose advertising disclosure requirements
that are “‘reasonably related to the State’s interest in preventing deception’”
but disagreed that the State had met that standard. Id. at 656 (Brennan, J.,
concurring in part and dissenting in part) (quoting id. at 651).
408. Id. at 651. Commentators have also argued that “between suppressing
certain commercial messages altogether and permitting them with mandatory
disclosures to guard against fraud, the First Amendment supports the use of
disclosure requirements in the first instance.” George W. Evans & Arnold I.
Friede, The Food and Drug Administration’s Regulation of Prescription Drug
Manufacturer Speech: A First Amendment Analysis, 58 FOOD & DRUG L.J.
365, 379 (2003). The Court of Appeals for the District of Columbia seems to
have adopted this reasoning, noting in a case rejecting the FDA’s demand that
it approve health claims on dietary supplements that “when government
chooses a policy of suppression over disclosure—at least where there is no
showing that disclosure would not suffice to cure misleadingness—
government disregards a ‘far less restrictive’ means.” Pearson v. Shalala, 164
F.3d 650, 658 (D.C. Cir. 1999).
409. In a separate opinion, Justices Brennan and Marshall agreed with the
majority that disclosure requirements should be assessed differently from bans
on speech. See Zauderer, 471 U.S. at 656 (Brennan, J., concurring in part and
dissenting in part). Nevertheless, they did not believe that the state’s “vague”
requirements were reasonably related to the state’s goal. Id.
410. In an opinion dissenting from the denial of a writ of certiorari in
Borgner v. Florida Board of Dentistry, 537 U.S. 1080 (2002) (Thomas, J.,
dissenting), Justice Thomas questioned a broad reading of Zauderer and
argued that the Court’s opinions “have not presumptively endorsed
government-scripted disclaimers or sufficiently clarified the nature and the
quality of the evidence a State must present to show that the challenged
legislation directly advances the governmental interest asserted.” Id. at 1082.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 427

Glickman v. Wileman Bros. & Elliott.411 In that case, the Court
reviewed a First Amendment challenge to Department of Agriculture
regulations that assessed fruit growers to finance generic advertising
for the industry.412 In upholding the regulations, the Court disting-
uished the marketing orders from others it had struck down on
several grounds.413 First, the Court noted, the marketing orders
imposed “no restraint on the freedom of any producer to commu-
nicate any message to any audience. Second, they do not compel any
person to engage in any actual or symbolic speech. Third, they do
not compel the producers to endorse or to finance any political or
ideological views.”414 The Court then argued that its compelled
speech doctrine only applied when the compelled speech required
parties to express messages and associate themselves with ideas to
which they do not subscribe.415 Because the advertising at issue
would not be “attributed” to the growers, it could not be viewed as
compelled speech.416 Finally, the Glickman Court noted that the
assessments under challenge were part of a complex regulatory
scheme that tied together the economic interests of fruit growers.417
Because of the comprehensiveness of the regulations, the Court
suggested that the assessments could be viewed as part of an
economic regulation that contraindicated the traditional heightened
standard for First Amendment challenges.418 This “context” leaves
open the possibility that other regulations compelling speech as part
of a complex regulatory scheme may be distinguished from “simple”
compelled speech cases.419
411. 521 U.S. 457 (1997).
412. Id. at 460–61.
413. Id. at 469–70.
414. Id. (citations omitted). To understand this case, it is important to note
that the Court had previously accepted the proposition that laws compelling
parties to financially support private speech also fell within the purview of the
First Amendment. See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 222
(1977). In other words, the compelled speech doctrine extends not simply to
laws that compel speech itself, but to laws that compel the support of speech.
It does not, however, extend to laws that assess or tax individuals to pay for the
government’s own speech. See Johanns v. Livestock Mktg. Ass’n, 125 S. Ct.
2055, 2062 (2005).
415. Glickman, 521 U.S. at 470–71.
416. See id. at 471.
417. Id. at 469.
418. Id.
419. Evans and Friede make this point in arguing that some, but not all, of

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 429

appear to give governments fairly wide purview to use their own tax
dollars in attempts to influence the information environment to
protect public health (or to convey messages harmful to public
health). Thus, with respect to obesity, governments may include
nutrition education in the public school curriculum and sponsor
public service announcements aimed at encouraging children to eat
healthy foods and be physically active. Johanns does not, however,
clarify the constitutional status of regulations that seek to protect
public health by compelling accurate labeling or the disclosure of
warnings.426 Indeed, the Johanns Court’s failure to follow the
approaches laid out in either Glickman or Zauderer may indicate
some discomfort with their potentially broader protection for
regulations compelling speech.427 If so, in the years to come, Central
Hudson, in all of its rigor, may be applied more frequently to public
health laws compelling speech.428 If so, the information environ-
ment’s impact on public health may well depend upon an application
of the Central Hudson test that is sensitive to public health and the
ways in which it is affected by speech.


the Arts); Elrod v. Burns, 427 U.S. 347 (1976) (upholding a preliminary
injunction against a county for firing employees because of their political
affiliations).
426. Some lower courts have considered the application of the First
Amendment to anti-fraud laws. See, e.g., United States v. Wenger, 292 F.
Supp. 2d 1296 (D. Utah 2003) (upholding a Securities Act conviction for
failure to disclose and finding that the disclosure demands were a justified
limitation on commercial speech).
427. United States v. United Foods, Inc., 533 U.S. 405 (2001), distinguished
both Glickman and Zauderer. Id.. at 412–16.
428. This discussion assumes that the Courts will deem that these laws
compel commercial speech. However, the definition of commercial speech is
uncertain, and it will not always be easy to decide whether courts should treat
the particular speech at issue as commercial speech or pure speech. E.g.,
Wenger, 292 F. Supp. 2d at 1296, 1302. In the case of compelled speech
relating to public health in general or to obesity, there may be many
circumstances in which challengers could claim that the speech at issue is not
commercial, but scientific or policy-oriented, and therefore should not have to
include mandated warnings or labels. See Evans & Friede, supra note 408, at
404–05; see also PUBLIC HEALTH LAW AND ETHICS, supra note 32, at 353–55
(pointing to paid editorials or “advertorials” by tobacco companies as
examples of speech that is hard to classify).

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
430 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

VI. A POPULATION-BASED PERSPECTIVE ON PUBLIC HEALTH
Public health and the First Amendment may be on a collision
course. As we have suggested, speech is an important determinant of
population health. In the case of childhood obesity, both commercial
speech and compelled speech play critical roles.429 Thus, if
government is to intervene and protect children from the dangers of
obesity, it must intervene in the information environment both by
compelling truthful and informative speech and by containing the
impact of speech that alters the culture, social trust, and public policy
in health-threatening ways.
The First Amendment, however, is increasingly viewed as a
favored right, and recent applications of the commercial speech
doctrine suggest that future government efforts to regulate the infor-
mation environment are more likely than those in the past to face
very stringent, if not fatal, review.430 If so, government will be
denied a key tool for protecting the public’s health.431
This outcome is unnecessary. We do not need to abandon
respect for the First Amendment to enable government to protect
public health. Instead, we must apply existing doctrine with a
recognition of the enduring relationship between constitutional rights
and public health, as well as with an appreciation of the many ways
that speech affects the health of populations.432 By applying existing
429. See supra Part IV for a discussion of commercial speech and its effect
on the obesity epidemic. See supra Part V.C for a discussion of the possible
governmental use of compelled speech to affect the obesity epidemic.
430. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001); 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).
431. We do not claim that First Amendment doctrine will prevent the
government from asserting any influence over the information environment
pertinent to obesity. As we have noted previously, the First Amendment
leaves the government wide room to engage in its own speech. See supra text
accompanying notes 418–25. Hence, the government can participate in the
information environment and disseminate information, including counter-
advertising, that it believes to be helpful. In addition, the government can
support, via grants, the speech efforts of public health advocates who attempt
to influence the informational environment. While not trivial, we suspect that
these efforts would prove in themselves insufficient, especially if courts read
the compelled speech doctrine to limit labeling requirements and disclosures.
432. It is important here to recall, as we have previously noted, that speech
can be beneficial to public health. If we did not have some protections for the
dissemination of controversial information, we might, thereby, jeopardize
public health. See supra text accompanying notes 58–108, 167–69. Moreover,

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
432 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

the recognition that protecting and improving public health is an
appropriate, if not essential, goal of legal and policy decision
making.435 This does not mean that public health is the only goal
that judges or legislatures should consider. Other values, such as
individual autonomy, equality, fidelity to precedent, and respect for
democratic decision making are also of critical importance.436 A
population-based legal analysis does not denigrate those values or
argue that they should be sacrificed in the name of public health. It
merely asserts that protection of public health is one among the many
goals that need to be taken into account in deciding difficult cases
and determining the course of doctrine.
Such an approach is compatible with and may demand respect
for freedom of speech. Indeed, this approach closely aligns with the
leading arguments for protecting free speech as well as the Central
Hudson test.437 In American law, the classic justification for First
Amendment protection came from a series of opinions by Justice
Holmes in 1919.438 In these cases, he formulated the now common-
place notion of a “marketplace of ideas,” arguing that speech should
not be easily censored precisely because we cannot know a priori
which ideas are true and which are false.439 Given uncertainty,
Holmes argued, we should be wary about limiting speech or ideas
that popular opinion now sees as false but which may later prove to
be true.440 In addition, it is only by allowing the airing and, indeed,
competition between ideas that falsehoods can be exposed and
society can move closer to the adoption of true or perhaps simply
sensible policies.441


435. Id. at 1234.
436. Indeed, it may well be that many, if not most, of these other goals are
generally compatible with public health protection. One should not fall into
the law school trap of assuming that life presents nothing but dichotomies and
difficult choices, where one must make tragic decisions.
437. See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,
447 U.S. 557, 564 (1980); supra text accompanying notes 313–428.
438. See Abrams v. United States, 250 U.S. 616, 624–31 (1919) (Holmes, J.,
dissenting); Schenck v. United States, 249 U.S. 47, 48–53 (1919).
439. Abrams, 250 U.S. at 630 (Holmes, J., dissenting).
440. Id.
441. Id.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 433

Importantly, Holmes’ justification for free speech was
consequentialist. Holmes did not suggest that courts should give
broad protection to speech because speech itself is special or
exceptional.442 Nor did he suggest that speech be given greater
deference than other constitutionally-protected rights.443 Rather, he
argued that courts should give speech considerable constitutional
protection because that is the best way, in a fallible world, to test
ideas and adopt those most worthy.444 Moreover, according to
Holmes, the government could override claims of free speech, like
other claims for other rights, when the speech at issue creates a
“clear and present” harm to others.445 Thus, Holmes saw the right to
free speech not as a trump on public policy, but as its handmaiden;
not as a right apart from and above our constitutional traditions, but
one very much in alliance with them.
Holmes’ consequentialist argument for free speech left unan-
swered a major question: what are the ends that necessitate or justify
free speech? Writing at the end of World War I, in the wake of the
Bolshevik Revolution, Holmes clearly contemplated that a nation’s
security during a time of war was among those ends that would
benefit from judicial protection of speech.446 However, the security
and wellbeing of a population does not only depend upon its military
strength, or even its economic and political systems. It is also a
function of the health of the populations that comprise it. Indeed,
writing as he did immediately after the influenza pandemic of 1918,
which killed far more people than did the Great War,447 Holmes was
probably well aware of the impact that epidemics can wreak upon
442. See id. at 624–31.
443. See id.
444. Id. at 630.
445. Schenck v. United States, 249 U.S. 47, 52 (1919). Holmes’ approach to
the issue in Abrams, however, was far more protective of speech than was his
approach in Schenck. Compare Abrams, 250 U.S. at 629–30 (arguing that the
defendants had as much of a right to publish the leaflets in question as the
government had to publish the U.S. Constitution), with Schenck, 249 U.S. at
52–53 (holding that the defendants violated the Espionage Act of 1917 by
mailing circulars to obstruct recruiting and enlistment, and this conviction did
not violate their First Amendment rights).
446. See Debs v. United States, 249 U.S. 211 (1919).
447. See GINA KOLATA, FLU: THE STORY OF THE GREAT INFLUENZA
PANDEMIC OF 1918 AND THE SEARCH FOR THE VIRUS THAT CAUSED IT 7
(1999).

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
436 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

ment as designed to protect groups or populations, rather than merely
individual interests.458 As discussed in Part III, many theorists view
speech as a critical ingredient for the maintenance of social capital,
trust, and democratic deliberation. For example, Cass Sunstein and
Alexander Meiklejohn have each postulated that the First
Amendment aims to ensure this public role for speech.459 As a
result, the speech most worthy of First Amendment protection is
public debate, discourse, and communication. According to
Meiklejohn:
If men are engaged, as we so commonly are, in argument,
or inquiry, or advocacy, or incitement which is directed
toward our private interests, private privileges, private
possessions, we are, of course, entitled to “due process”
protection of those activities. But the First Amendment has
no concern over such protection.
. . . .
. . . The First Amendment does not intend to guarantee men
freedom to say what some private interest pays them to say
for its own advantage. It intends only to make men free to
say what, as citizens, they think, what they believe, about
the general welfare.460
The recognition that we must understand the First Amendment
not only to serve a private purpose, but also in light of the public
impact of speech, is evident in much of the Supreme Court’s
commercial speech doctrine. Indeed, a principal tenet of Central
Hudson, that government may regulate commercial speech to serve a
state interest, assumes that the First Amendment does not create an
individualist trump upon state power. Rather, the First Amendment
reconciles the need of populations to engage in discourse and receive
information with the interests of populations in having the state
protect them from harms that speech can cause. The interests of
populations, rather than simply individuals, are present and important
on both sides of the equation.

458. See id. at 1234.
459. See ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO
SELF-GOVERNMENT 94, 104 (1948); Sunstein, supra note 57, at 259, 277.
460. MEIKLEJOHN, supra note 459, at 94, 104.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 437

A population-based perspective, however, does not simply
recognize that the First Amendment takes account of population-
based interests. It also insists that we consider how speech affects
populations qua populations, both negatively and positively.461 In so
doing, it reminds us that actions and policies affect populations
differently than they affect individuals, and that “the public” is
comprised of multiple, overlapping populations.462 Thus, both
speech and laws that seek to limit it may have different effects upon
different populations. For example, speech and laws affect children
differently than adults.463 School children are yet another sub-
population, inhabiting a unique, restricted environment. If we want
to understand how speech affects populations, we must be sensitive
to the composition and environment of the population at issue.
Moreover, we cannot assume that speech speaks only to individuals;
we must understand how it alters environments.
In its commercial speech cases, the Supreme Court has at times
shown sensitivity to the dynamics of populations. For example, in
evaluating restrictions of outdoor tobacco advertising in Lorillard
Tobacco Co., the Court referenced population studies in its
application of the third prong of the Central Hudson test.464 The
Court cited population studies to note that:
children smoke fewer brands of cigarettes than adults, and
those choices directly track the most heavily advertised
brands. Another study revealed that 72% of 6 year olds and
52% of children ages 3 to 6 recognized “Joe Camel,” the
cartoon anthropomorphic symbol of R.J. Reynolds’ Camel
brand cigarettes. After the introduction of Joe Camel,
Camel cigarettes’ share of the youth market rose from 4%
to 13%. The FDA also identified trends in tobacco
consumption among certain populations, such as young
women, that correlated to the introduction and marketing of
461. See Parmet, supra note 5, at 1234.
462. For a fuller discussion of this point, see id. at n.78.
463. The Supreme Court has recognized that the rights of children with
respect to speech may differ from those of adults, but it has also rejected the
idea of restricting speech that adults say or hear on the theory that it is
necessary to protect children. Reno v. ACLU, 521 U.S. 844, 875 (1997). A
population-based perspective may provide greater attention to the differing
interests of different populations.
464. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 558–61 (2001).

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
438 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

products geared toward that population.465
The Court relied upon such studies which emphasized the effect of
marketing on specific populations of children to provide ample
justification for the restriction by the state.466 The Court’s discussion
focused entirely on different groups of children as populations rather
than on the effect of advertising on any particular child.467
Yet, as discussed previously, the Supreme Court has not
consistently adhered to a population-based approach. For example,
in Lorillard Tobacco Co., as it analyzed the state’s outdoor
advertising restrictions under the fourth prong of the Central Hudson
test, the Court reverted to an individualistic perspective, focusing on
the impact of the ban on an autonomous adult.468 In effect, the Court
worried that, by restricting advertising, the state had limited the
ability of individual adults to obtain useful information.469 Yet, in its
prior analysis, the Court had made clear that the point of the
advertising was not the transmission of information to individuals.470
Advertising sought to create increased demand within a population,
in effect, to utilize population dynamics to alter demand. Why the
Court failed to recall the way that advertising alters demand
(especially among children) when it moved to its analysis of the
fourth prong is unclear.
Likewise, in his plurality opinion in 44 Liquormart, Inc. v.
Rhode Island,471 Justice Stevens invoked the specter of paternalism
in rejecting a state restriction on alcohol advertising.472 Justice
Stevens argued that, in contrast to adopting a paternalistic approach
that sought to protect individuals from advertisements that might
induce them to make bad decisions, the state could “assume that this
information is not in itself harmful, that people will perceive their
own best interests if only they are well enough informed, and that the
best means to that end is to open the channels of communication
465. Id. at 558–59 (citations omitted).
466. See id. at 561.
467. See id. at 558–61.
468. See id. at 561–66.
469. See id. at 564.
470. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
425 U.S. 748, 762 (1976) (noting that the purpose of advertisements was a
“purely economic one”).
471. 517 U.S. 484 (1996).
472. Id. at 497–98.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 439

rather than to close them.”473
In treating paternalism as an inherent wrong, and by assuming
that advertising regulations necessarily seek to prevent individuals
from making poor choices for themselves, Justice Stevens ignored
the fact that advertising influences the social and informational
environment that populations inhabit.474 However, as we have seen,
speech can change the culture and world in which people reside.475
This altered environment can harm individuals regardless of their
own a priori preferences. As a result, by regulating the influences
upon the information environment, states are not necessarily being
paternalistic in the sense of protecting people from themselves.
Instead, states may be protecting people from an exogenous
environmental threat.476 By recalling that people are situated in
populations and environments and that speech acts upon individuals
through those media, a population-based legal analysis reminds us
that speech regulation is not necessarily a restraint upon individual
autonomy. At times, it is the expression or precondition for popula-
tion autonomy.477
473. Id. at 497 (quoting Va. State Bd. of Pharmacy, 425 U.S. at 770).
474. Justice Stevens also seemed to assume, as the Court has in other
commercial speech cases, that more speech is always better because it provides
individuals with information. See Lorillard Tobacco Co., 533 U.S. at 564; Va.
State Bd. of Pharmacy, 425 U.S. at 762. But in the information age, people
may be overwhelmed with speech, much of it designed not to provide
information, but to influence culture and policy. In these circumstances,
people need government to regulate the amount of information they receive for
“what seems to be government regulation of speech actually might promote
free speech, and should not be treated as an abridgement at all. . . . [W]hat
seems to be free speech in markets might, in some selected circumstances,
amount to an abridgement of free speech.” Sunstein, supra note 57, at 267.
475. See supra text accompanying notes 210–24.
476. By altering the environment, commercial speech can affect not only
individual preferences, but also the external risks that individuals face. When
we understand that individual health is caused not simply by what individuals
choose, but also by the environment in which they operate, efforts to regulate
health-harming speech appear not as paternalistic, but as a way of protecting
against harms from which individuals cannot protect themselves.
477. Moreover, sensitivity to the environmental impact of speech would help
courts to see that, in many environments, such as public schools, commercial
speakers so heavily influence the information environment pertaining to food
and consumption that they may exclude other voices. Scholars have noted that
this effect is widespread and extends beyond mere advertising to children. For
example, advertising puts enormous pressures on news media and affects its

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
440 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

A population-based approach to the First Amendment would
also permit the state to safeguard the informational environment not
only by permitting government-sponsored speech, which is
permissible by law but often of limited efficacy,478 but also by under-
taking other, limited regulations aimed at preventing the exclu-
sionary and health-impairing impact of some types of speech in
schools. As we discuss in the final section, such regulations may
also compel fuller disclosures by commercial speakers, and seek to
reduce children’s exposure to environment-altering speech that has
little or no informational content.479 However, to determine when
speech sufficiently harms population health to justify regulation, as
well as whether regulations have the potential to protect the
populations, both the Central Hudson test and a population-based
approach to the First Amendment require reference to empirical data.
It is to this final component of a population-based approach that we
now turn.
C. Empiricism
A population-based legal analysis incorporates the
methodologies and approaches of public health, particularly its key
sub-discipline, epidemiology.480 Simply, epidemiology is “the study
of health events in a population.”481 It studies “the incidence,
prevalence, distribution, and etiology of disease” by utilizing a
variety of empirical, observational, and statistical methodologies.482
By paying attention to epidemiological teachings, population-based
legal analysis accepts that empirical observation can help inform
legal analysis. Moreover, it understands that our knowledge about
the world is partial and changing. Legal decisions need to reflect not
simply the verities of legal deduction, but also the contingent and
content. LAWRENCE SOLEY, CENSORSHIP, INC.: THE CORPORATE THREAT TO
FREE SPEECH IN THE UNITED STATES 195 (2005). Corporate ownership of
media, coupled with corporate saturation of the channels of speech, has also
affected the content of the informational environment and speech. See id. at
19; Sunstein, supra note 57, at 280–85.
478. See supra text accompanying notes 81–83.
479. See infra text accompanying notes 502–04.
480. TULCHINSKY & VARAVIKOVA, supra note 29, at 114.
481. Id.
482. Parmet & Robbins, supra note 433, at 705.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 441

testable information that comes from empirical observation.483
Using and understanding empirical data and epidemiology can
assist courts in determining whether and how speech affects different
populations as well as whether a contested regulation can survive the
third and fourth prongs of the Central Hudson test. For example,
epidemiological studies can help courts determine the association or
relationship between an event and a result.484 This is the first step in
determining causation, which epidemiologists usually establish by
applying certain principles.485 Understanding epidemiological cau-
sation and the criteria for establishing it can be key in determining
whether there is a “substantial government interest”486 within the
meaning of the second prong of Central Hudson, as well as whether
a regulation “directly advances”487 that interest, as required under the
third prong.488 It may also help a court to understand whether the
regulation is more burdensome than is necessary to achieve the
governmental interest.489
As we have seen, the Supreme Court has frequently referred to
epidemiological studies and other similar studies in applying the
Central Hudson test.490 But the Court’s treatment of such studies has
often been inconsistent and half-hearted. For example, after
referring to numerous health studies about the impact of tobacco
483. It is important to note that this is not law as social science. Rather, it is
a call to adopt some of the methodologies and approaches of public health to
supplement and clarify legal reasoning and the deduction of legal principles.
484. See Parmet & Robbins, supra note 433, at 705.
485. Most common are the Henle-Koch principles. These are the first set of
criteria established and tend to focus heavily on infectious diseases.
TULCHINSKY & VARAVIKOVA, supra note 29, at 254. The Evans Criteria,
developed later, provide a more modern approach which is applicable to public
health problems that are not necessarily associated with a pathogen. See id. at
254–55.
486. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447
U.S. 557, 564 (1980).
487. Id.
488. Thus, epidemiology can tell us if a particular type of speech is
improving or worsening the health of a population. It cannot give us any
information about the impact of the regulation on a particular individual within
that population.
489. See supra text accompanying notes 318–19.
490. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 558–61 (2001)
(citing FDA findings of a correlation between cigarette ads and an increase in
smoking).

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
May 2006] A POPULATION-BASED APPROACH 443

A population-based approach to the First Amendment would
seek to avoid both extremes. Instead, it would look closely at, and
take seriously, the empirical and epidemiological evidence that
exists. It would also require the state to provide a well-founded,
empirically-based rationale for its regulation. But it would not
require the state to conclusively establish a causal relationship
between a particular type of speech and a public harm, nor between a
particular regulation and the successful protection of public health.
Instead, a population-based approach would assure that review was
careful, but not necessarily fatal.
VII. CONCLUSION
Constitutional law faces many great challenges. As the
Federalist Papers taught us, one is to ensure that government is both
robust enough to protect populations while preventing it from
overreaching and harming populations and their individuals.498 We
must face that challenge when speech threatens public health, as
increasingly seems to be the case with respect to the epidemic of
obesity and overweight among children.
As we have suggested, there are no simple answers. An
absolutist view of the First Amendment that privileges speech,
including commercial speech, above all other human activities, risks
an informational environment that alters culture in health-impairing
ways, saps public trust, and undermines the health of populations. It
also replicates an error of Lochner, that is, it would excessively
privilege one type of right without understanding that all rights must
co-exist within civil society.
On the other hand, we must value free speech, not only because
the Bill of Rights and our constitutional jurisprudence say so, but
also because, as we have discussed, speech is an important tool for
creating community and protecting public health. Too light an
application of the First Amendment thus threatens health as much as
it may help it.

498. See THE FEDERALIST NO. 10, at 42, 45 (James Madison) (Garry Wills
ed., 1982). As we write this, the tragedy of Hurricane Katrina and the failure
of the government’s response unfolds, and we are reminded, yet again, of why
governments are needed and why we cannot assume that atomistic individuals
can help themselves.

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
444 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363

To navigate between the Scylla of First Amendment absolutism
and the Charybdis of excessive deference to the state, we have
proposed the application of a population-based perspective. This
approach values the state’s role in protecting public health and takes
account of the role of populations and the teachings of epidemiology.
It is consistent with the First Amendment and the Central Hudson
test. In addition, it would return commercial speech doctrine to the
mainstream of constitutional law, placing First Amendment rights
among others that are protected, indeed cherished, but applied with
sensitivity to the imperatives of population health.
What would this approach mean with respect to the childhood
obesity epidemic? We have suggested above that it would first and
foremost take account of the ways that speech alters the environment
to affect the health of populations. By recognizing that speech is not
simply the conveyance of factual information to rational, isolated
individuals, it would appreciate the social, environmental, and
population dimensions of commercial speech. This would enable
both regulators and courts to take account of the ways in which
commercial speech has changed children’s environment, leading to
more obesity.
More specifically, a population-based approach would follow
both Zauderer v. Office of Disciplinary Counsel,499 and Glickman v.
Wileman Bros. & Elliott500 and look favorably upon regulations that
compel truthful warnings and labeling, insuring that some factual
information accompanies those advertisements and promotions that
are designed simply to change the cultural association of food
products or alter social relationships, such as those between parents
and children. However, based upon what the empirical evidence tells
us today, a population-based approach would not assume that
tolerance of compelled speech will necessarily suffice as the sole
regulatory tool. As we have shown, public health communications
that rely simply on providing individuals with the facts have seldom
had substantial positive effects.501 They are not usually sufficient to
change the powerful culture-altering impact of commercial speech.502
499. 471 U.S. 626 (1985).
500. 521 U.S. 457 (1997).
501. See supra text accompanying notes 74–87.
502. It is important here to recall that public health programs are less likely
to be effective when they seek to change culturally-driven behavior. See supra

19. PARMET_PRINTREADY3_FINAL 11/20/2006 3:26 PM
446 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:363
Of course, courts would need to review all regulations of
commercial speech on their own merits and with sensitivity, not just
to public health, but also to the values of free speech. By applying a
population-based approach, courts can begin that task and ensure that
our First Amendment does not undermine the health of our children.