Yale Law School to Hold Conference on First Amendment in the Shadow of Public Health

A conference investigating a broad range of complex constitutional issues raised at the intersection of medicine, public health, and the First Amendment will take place at Yale Law School on October 17 and 18.

The conference, the first of its kind, will examine how the regulation of food, medicines, and tobacco rely crucially on the regulation of free speech, through behavioral marketing, disclosures, and restrictions on certain modes of commercial promotion.


In recent years, 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.

Neither courts nor scholars have developed a consistent and coherent approach to evaluating these questions. 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.

"First Amendment doctrine has taken turns recently that create serious tensions with many public health strategies,” said Amy Kapczynski ’03, an Associate Professor of Law at Yale Law School. “Courts today are adjudicating calorie disclosures, graphic warning labels on cigarettes, and the foundation of our drug regulatory system through the lens of free speech law. But the experts in First Amendment law are rarely experts in health, and vice versa. This conference brings luminaries in both fields together, to advance our thinking on these urgently important issues."

The Public Health in the Shadow of the First Amendment Conference will include leading scholars, key policy makers, and top experts in law, public health and medicine, including Yale Law School Dean Robert C. Post ’77 and Knight Professor of Constitutional Law and the First Amendment Jack M. Balkin.

The conference panels will focus on food and drug regulation, behavioral marketing in the context of obesity, tobacco, and food policy, the regulation of professional conduct, First Amendment theory, and the intersection between science and democracy.

The conference is sponsored by the Information Society Project (ISP), the Yale Global Health Justice Partnership (GHJP), and the Yale Health Law and Policy Society (YHeLPS), with generous support from the Samuel and Liselotte Herman Fund for the Social and Behavioral Sciences at The Yale School of Public Health, and the Oscar M. Reubhausen Fund at Yale Law School.