Populations, Public Health, and the Law

7. The First Amendment and the Obesity Epidemic

C H A P T E R 7 The First Amendment and the Obesity Epidemic Congress shall make no law . . . abridging the freedom of speech. —First Amendment, U.S. Constitution F reedom of speech, secured by the First Amendment, is a bedrock principle of both American democracy and constitutional law.1 It is a principle that courts, including the Supreme Court, have come to regard very seriously. Indeed, if any constitutional right is treated as creating a strict limit on the power of the state, it is the First Amendment’s protection of speech. Yet, in our so-called information age, speech is also a powerful determinant of population health. In myriad ways, speech can and does promote population health, providing individuals and populations with information they can use to keep themselves healthy and, more important and less obvious, providing them with information they can use to mobilize around public policies that can promote their health. But speech can also harm the health of populations, both by enticing individuals to engage in risky behaviors and by shaping an unhealthy environment. Given how important speech is to population health, it might appear that a clash between free speech and population health is inevitable, that courts must choose between validating the First Amendment and permitting the government to protect population health. At times this will 166 the first amendment and the obesity epidemic 167 undoubtedly be the case. But, as we have seen, by emphasizing the interdependence of health and the relationship between individuals and the multiple populations they form, as well as the importance of empirical evidence, population-based legal analysis can help courts safeguard both individual rights and population health. This chapter illustrates the application of population-based legal analysis to the supposed conflict between individual rights and free speech in the context of one particular public health threat, childhood obesity, and one particular type of speech that has been implicated in the childhood obesity epidemic, commercial speech. The chapter suggests how a population -based approach might reconcile respect for speech with protecting the health of children. As we shall see, such a reconciliation is not easy. A population perspective does not provide a definitive answer to all of the ‘‘small questions [that] will not go away’’ concerning commercial speech.2 It does, however, offer important insight into how courts can safeguard both free speech and population health. Childhood Obesity as a Population Problem For children, obesity is defined as a body mass index (BMI) at or above the ninety-fifth percentile of the age- and gender-specific BMI charts prepared by the CDC.3 Although genetic factors may play a role in predisposing individual children to obesity, genetics alone cannot explain the dramatic increase in the prevalence of obesity among children that has occurred both in the United States and around the world in recent decades.4 According to a 2007 report by the Institute of Medicine, ‘‘between 1963 and 2004, obesity rates quadrupled for older children, ages 6 to 11 years (from 4 to 19 percent), and tripled for adolescents, ages 12 to 19 years (from 5 to 17 percent). Between 1971 and 2004, obesity rates increased from 5 to 14 percent in 2- to 5-year-olds.’’5 Among certain populations of children, the prevalence of obesity is especially high. For example, in 2003 and 2004, 20.0 percent of non-Hispanic black children were considered overweight (a term that some researchers use in lieu of the term obesity) and 35.1 percent were at risk of becoming overweight.6 Even more alarming is the fact that 40 percent of non-Hispanic, black, female children were at risk of being overweight.7 168 chapter 7 American Indian children also have particularly high rates of obesity, with studies showing rates of 20 or 21 percent.8 Children with physical or developmental disabilities or other health care needs also appear to have an especially high prevalence of being overweight.9 Although obese children are often healthy, they face higher risks than their nonobese peers for many health problems. Perhaps most worrisome is their heightened risk for type II diabetes, a disease that is becoming relatively common among adolescents even though it was once seen almost exclusively in adults and was therefore known as adult onset diabetes .10 In addition, obese adolescents are more prone than their peers to emotional and behavioral problems and...