The Supreme Court, the FDA, and the First Amendment

The Durk Pearson & Sandy Shaw®
Life Extension NewsTM
Volume 7 No. 1 • February 2004


In Thompson v. Western States Medical Center, 535 U.S. 357, 371 (2002), the U.S. Supreme Court “made it clear that if the Government could achieve its interests in a manner that does not restrict speech, or restricts less speech, the government must do so.” Ib. 373: “If the First Amendment means anything, it means that regulating speech must be a last—not a first—resort.”1
We applaud the decision in this case but note that, if the First Amendment means anything, it means that “Congress shall make no law . . . abridging the freedom of speech, or of the press . . .” (U.S. Constitution). Otherwise, it means whatever five of the nine Supreme Court justices want it to mean, as is demonstrated vividly in the case of the recent campaign finance reform decision that wildly abridges freedom of speech. (Interestingly, it was the “liberal” justices—Souter, Stevens, Ginsburg, and Breyer—along with the supposedly “conservative” Sandra Day O’Connor as the swing vote—that ruled government abridgement of freedom of political speech not a violation of the First Amendment, with that decision strongly opposed by four “conservative” justices. This decision has been deplored by civil libertarians across the political spectrum. We strongly suggest that a new and appropriate “litmus test” for potential court appointees be whether they support the First Amendment, in which Congress makes no law abridging the freedom of speech. Compared to the freedom of speech, the other issues centrally featured in arguments in the appointment of judges, such as abortion, marriage of gays, etc., are far less important matters. (In fact, we can see nowhere in the Constitution that the federal government was authorized to regulate intrastate issues of marriage and reproduction. In our judgment, these issues come under state, not federal, jurisdiction.)

1. Our group filed an amicus brief in this case (the decision allows compounding pharmacists to advertise what particular compounds they offer), which we believe was important in making possible this 5–4 winning decision. You can download the amicus at www.emord.com.

. . . the increase in body weight in the U.S. is not a recent phenomenon. The average body mass index (BMI) value has been increasing for more than 150 years. A large part of the ‘recent’ obesity epidemic is due to a curve-shifting phenomenon. Now that the right tail of the bell-shaped curve for BMI in the U.S. population has crossed the threshold for obesity (BMI of 30 kg/m2), small increases in average BMI and rightward shifts of the curve mean a sharp increase in the number of people considered obese.
— From a book review by Samuel Klein
Journal of Clinical Investigation 113(1):2 (2004)
Scientific knowledge is a body of statements of varying degrees of certainty—some most unsure, some nearly unsure, none absolutely certain.
— Richard Feynman
The FDA doesn’t like statements on labels about foods, dietary supplements, and drugs that are not absolutely certain (as determined by them), as it suggests that there might be honest differences of scientific opinion, and, worse yet, some such opinions might be different from the FDA’s. The FDA is supported by some scientists (largely academic and government authoritarian types) who think the public an idiot horde that shouldn’t be “confused” by hearing scientific differences of opinion and, hence, should be given a supposed consensus statement or, as it is sometimes put, the scientific community “speaking with one [political] voice.” It is freedom of speech that is our major protection from that one voice backed by government guns.
The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.
— H. L. Mencken

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