Compelling Images: The Constitutionality of Emotionally Persuasive Health Campaigns

Abstract

Legislation requiring the display of emotionally compelling graphic imagery in medical and public health contexts is on the rise – two examples include the FDA’s recently abandoned tobacco labeling regulations, which would have imposed images of diseased lungs and cancerous lesions on cigarette packaging, and state laws requiring physicians to display and describe ultrasound images to women seeking abortions. This Article highlights the disconnect between the constitutional challenges to these laws, which focus on perils of compelling speakers to communicate messages with which they may disagree, and the public’s primary objections, which are grounded in ethical concerns about the state’s reliance on emotion to persuade. This Article argues that, despite inconsistent judicial precedent in the tobacco and ultrasound contexts, concerns about the emotional impact of images on viewers can and should be incorporated in First and Fourteenth Amendment analyses. In making this argument, the Article relies on the body of First Amendment jurisprudence in which the Supreme Court suggests that images are uniquely dangerous because they are less rational, less controllable, and more emotionally powerful than textual communications.[SSRN posted version is a pre-publication draft]