by Claudia E. Haupt
In addition to the conflict between free speech and public health in connection with social media, the role of social media as a public health hazard in itself has gained attention.
Social Media’s Public Health Harms
In a New York Times essay published on June 17, 2024, the Surgeon General proposed a warning label for social media platforms. He based this proposal on a range of alleged public health harms caused by social media, especially among young users. Other health experts, however, have criticized broad assertions about social media’s harms as oversimplified.
Here, too, a conflict with free speech looms. In a 2021 article, my coauthor Wendy Parmet and I cautioned that “[c]urrent First Amendment doctrine has set public health regulation and protections for commercial speech on a collision course.” Our analysis focused on compelled warning labels on sugary beverages. Similar public health measures involve warnings on tobacco products. Whereas earlier textual warnings have long been displayed on cigarette packages, new graphic warnings have been tied up in litigation for well over a decade because of First Amendment concerns. Social media warning labels might suffer the same fate.
The Supreme Court’s 2018 decision in National Institute of Family and Life Advocates (NIFLA) v. Becerra shifted the balance further away from public health protection in favor of free speech. This case, involving compelled disclosures at crisis pregnancy centers, provided an important gloss on analyzing the level of protection for commercial speech. Historically, under Zauderer v. Office of Disciplinary Counsel, the standard of review for disclosure requirements was rational basis. At issue in Zauderer was a law compelling an attorney to “include in his advertising purely factual and uncontroversial information about the terms under which his services will be available.” (The “purely factual and uncontroversial” part will be of utmost importance in the public health context, as I’ll explain shortly.)
There is widespread disagreement among the federal courts about the types of disclosures to which Zauderer applies. Take graphic tobacco warning labels as an example. In R.J. Reynolds v. Food and Drug Administration (FDA), the D.C. Circuit in 2012 held that a set of FDA-proposed graphic warning labels violated the First Amendment. The court rejected application of Zauderer, because the graphic warning labels at issue “do not constitute the type of ‘purely factual and uncontroversial’ information” to which Zauderer’s rational basis framework applies. Instead, the court limited its application to statements that are factual and noncontroversial. By contrast, the Fifth Circuit in March 2024 held that a set of graphic warnings on cigarettes—somewhat revised by the FDA since the earlier round of litigation—are subject to Zauderer and are both purely factual and noncontroversial.
In NIFLA, Justice Thomas, writing for the majority, characterized Zauderer as applying to “laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech’” and as “govern[ing] only ‘commercial advertising’ and require[ing] the disclosure of ‘purely factual and uncontroversial’ information about the terms under which . . . services will be available.” Finding Zauderer inapplicable, the NIFLA majority reinterpreted the “uncontroversial” requirement to encompass the entire topic of abortion. Such a broad interpretation could mean that as long as a topic is broadly controversial (such as abortion, perhaps various vaccines, and others), any information relating to it, even if it is factual and accurate, could be deemed controversial. What exactly makes a topic controversial, moreover, problematically remains unclear. At the same time, the Court sought to provide reassurance stating that “we do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products.”
Examining the permissibility of compelled public health and safety warnings in light of NIFLA thus turns on the “purely factual and uncontroversial” inquiry as well as the question of what “long considered permissible” means. Connecting the NIFLA majority’s understanding back to the contestation around the Surgeon General’s proposed social media warnings illustrates the potential for the proposal’s constitutional infirmity. To the extent that there is scientific disagreement about the harms social media causes, it is easily conceivable that warning labels may be considered controversial. And due to the novelty of social media, such warnings may not be “long considered permissible.” Here, the doctrinal uncertainty surrounding First Amendment review of compelled commercial disclosures prior to and after NIFLA comes into sharp relief.
Conclusion
These three snapshots of current disputes highlight the potential for further conflict between free speech and public health, particularly on social media platforms. Across a range of areas, public health measures must take into account an expanding interpretation of free speech protection. Social media will test the underlying assumptions of free speech protection and the doctrinal uncertainties that existed in the past will likely be exacerbated by social media applications.
Claudia E. Haupt is a Professor of Law and Political Science at Northeastern University.
