Public Health in the Shadow of the First Amendment (20304). 1 unit, credit/fail. The regulation of food, medicines, and tobacco all rely crucially today on the regulation of speech, for example through behavioral marketing, disclosures, and restrictions on certain modes of commercial promotion. First Amendment doctrine has recently changed in significant ways, bringing it into potentially deep tension with such measures. For example, commercial speech doctrine has been used to invalidate FDA restrictions on off-label marketing of drugs, to prevent graphic warnings on cigarette packages, and to challenge calorie disclosures in restaurants.
In addition, new and important questions about the limits of a legislature’s ability to mandate or forbid certain physician speech are emerging. For example, should the First Amendment protect doctors from requirements that they provide patients with ultrasounds or medically unproven information in the abortion context, or mental health providers from restrictions on conducting reparative therapy for gay teens? In cases such as these, courts and legislatures are also increasingly required to adjudicate questions of scientific merit. Many recent examples suggest reason for concern about the results.
Neither courts nor scholars have developed a consistent and coherent approach to these different areas. Experts in First Amendment law are rarely in a position to fully articulate the health consequences of these cases, and health experts rarely have the literacy in free speech law required to navigate these issues. In this one-credit course, we will review important recent cases at the intersection of law, public health, and medicine. In particular, we will focus on the intersection between First Amendment doctrine and (1) food and drug regulation, (2) behavioral marketing in the context of obesity, tobacco, and food policy, the (3) regulation of professional conduct. Enrollment limited to ten. Permission of the instructors required. A. Kapczynski and R.C. Post.
We are convening the course in anticipation of a major conference on these issues, hosted by the Yale Law School, the Yale School of Medicine, and the Yale School of Public Health, on October 17-18. Students will be expected to attend the conference, and our seminar sessions. If they wish to receive 1 unit of credit, students will also be expected to attend one or two sessions after the conference, and submit short paper proposals on topics relevant to our discussions. Many of our readings will be drawn from the packet available here.
How to Apply: The course is open to participation from the law school, medical school, or public health school, but limited to a total of ten students. Students who would like to join the course should send a statement of background and interest to firstname.lastname@example.org by Monday, September 9 at 9 a.m. Please also note whether you can attend all three of the scheduled sessions (dates below), and the conference, and whether you intend to do the course for credit. (We cannot offer credit in schools outside of the law school, but are happy to have students from Medicine and Public Health with relevant interests and background, with the understanding that the bulk of our reading will be case law.)
(All sessions will be in Room 111, Yale Law School)
Tues, Sept. 9, 7pm-10pm
Mon, Oct. 6, 7pm-10pm
Mon, Oct. 13, 7pm-10pm
Conference dates: Oct 17, 1:30pm – 5:15pm, Oct 18, 9am – 5:15pm
Fourth evening session, date TBD, probably Nov. 3 or 4.