Product Health Claims and the First Amendment: Scientific Expression and the Twilight Zone of Commercial Speech

Imagine, for a moment, that Congress has enacted the "False and Misleading Medical and Scientific Reporting Act of 1990." The law is premised on a fear that scientific quackery may cause significant societal harm by confusing the public and inducing its members to seek out costly, worthless, and possibly harmful medical cures or supposed scientific advances. The Act establishes a special commission of scientific and medical experts to rule on the accuracy of any proposed scientific or medical theory that conceivably could cause public harm or confusion. Such scientific or medical assertions must be substantiated to the commission's satisfaction, or the speaker risks issuance of a cease and desist order, imposition of criminal penalties, or both. Only the narrowest of free speech theorists would find this statute to meet the requirements of the first amendment.

Indeed, most observers would recoil at the creation of such a governmentally imposed "Big Brother" of scientific inquiry. In part, this is because imposing a governmental pall of intellectual orthodoxy is inconsistent with the assumptions traditionally deemed to underlie a free society. The ability to engage in uninhibited intellectual inquiry and communication is essential to the mental and personal development of the individual.' This development is indispensable if individuals are to participate actively in the governing of their lives, an activity inherent in a democratic system.