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They Can't Say That On Television: Litigating Towards a Sane Commercial Speech Doctrine & The Public Health Implications
Monday, October 29, 2012
: 11:50 AM - 12:10 PM
The performer Carrie Snow once remarked, “Advertising degrades the people it appeals to; it deprives them of their will to choose.” Poor choices, influenced by increasingly pervasive and effective advertising, lie at the heart of many of the public health crises we face today, including the obesity epidemic. Yet, governments have little ability to curtail advertising's excesses, thanks to forty years of jurisprudence steadily expanding the constitutional protection afforded advertising, or commercial speech. Commentators have noted the vital role interventions designed to reduce the exposure to or efficacy of advertising would play in addressing some of these public health crises. Before any such intervention can take place, however, the drumbeat towards unfettered commercial speech must end. Achieving this goal – a sane commercial speech doctrine – will require patience and, above all, strategy. This piece presents such a strategy, predicated on the notion that any limitation on corporate speech or any expansion of state police powers represents a boon to those concerned about commercial speech. The piece draws lessons from analogous successful efforts, such as the Montana Supreme Court's recent deft avoidance of the Citizens United precedent in upholding regulation of corporate political speech.
Learning Areas:
Administer health education strategies, interventions and programs
Ethics, professional and legal requirements
Other professions or practice related to public health
Public health or related laws, regulations, standards, or guidelines
Public health or related public policy
Social and behavioral sciences
Learning Objectives: 1. Identify public health implications of unregulated commercial speech.
2. Recommend strategy for establishing a constitutional basis for regulation of commercial speech.
3. Assess feasibility of new legal approach.
Keywords: Health Law, Consumer Protection
Presenting author's disclosure statement:Qualified on the content I am responsible for because: I am an attorney and have presented at the APHA Annual Meeting 4 times previously.
Any relevant financial relationships? No
I agree to comply with the American Public Health Association Conflict of Interest and Commercial Support Guidelines,
and to disclose to the participants any off-label or experimental uses of a commercial product or service discussed
in my presentation.
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