Snake oil speech

Research output: Contribution to journalArticle

1 Citation (Scopus)

Abstract

Snake oil is dangerous only by way of the claims that are made about its healing powers. It is a speech problem, and its remedy involves speech restrictions. But First Amendment doctrine has struggled to find equilibrium in the balance between free speech and the reduction of junk science. Regulation requires the government to take an authoritative position about which factual claims are “true” and “false,” which is anathema to open inquiry. As a result, free speech jurisprudence overprotects factual claims made in public discourse out of respect for any remote possibility that the scientific consensus might be wrong but has given wide latitude to state actors to regulate all but the most accepted and well supported claims in advertising. This Article shows that the interests in speech and safety alike would be better served by switching from the truth-oriented set of rules that apply today to a risk orientation. While risk and falsity are obviously related, they are not substitutes. The transition to a risk analysis would better match longstanding First Amendment traditions that permit state interests in avoiding harm to outweigh speech interests while maintaining epistemic modesty. The practical effect of this shift would be to permit more regulation in public discourse and less in commercial speech.

Original languageEnglish (US)
Pages (from-to)73-143
Number of pages71
JournalWashington Law Review
Volume93
Issue number1
StatePublished - Jan 1 2018

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amendment
regulation
discourse
jurisprudence
remedies
doctrine
respect
science

ASJC Scopus subject areas

  • Law

Cite this

Snake oil speech. / Bambauer, Jane Roberta.

In: Washington Law Review, Vol. 93, No. 1, 01.01.2018, p. 73-143.

Research output: Contribution to journalArticle

Bambauer, JR 2018, 'Snake oil speech', Washington Law Review, vol. 93, no. 1, pp. 73-143.
Bambauer, Jane Roberta. / Snake oil speech. In: Washington Law Review. 2018 ; Vol. 93, No. 1. pp. 73-143.
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