What happens when First Amendment runs into apps?

By Lauren Kirkwood
The Daily Record Newswire

These days, you can second-guess your own doctor with an app that calculates your risk for disease.

But what if the Food and Drug Administration said you couldn’t, because the agency wanted to regulate it?

That was one question that intrigued panelists at a recent conference on the First Amendment and American business hosted by the University of Maryland Francis King Carey School of Law.

“If you have a smartphone right now, you can pretty much monitor everything an intensive care unit can,” from blood pressure and blood sugar level to body temperature and breathing rate, said panelist Adam Candeub, a professor at the Michigan State University College of Law. “This is a new frontier, and it’s not just real cool, neat stuff; it has the potential to transform medicine.”

The FDA might have misgivings about the very nature of apps like these. And it might want to regulate them, Candeub said.

But the code those apps are built from is a form of expression. So wouldn’t that amount to the regulation of free speech?

Friday’s symposium brought together experts and law professors from a variety of schools to debate First Amendment issues that affect commercial speech. Some related to health, while others dealt with technology or religion.

Jane Bambauer, a professor at the University of Arizona James E. Rogers College of Law, brought up for discussion the way government regulates scientific claims made by companies.

Rather than ensuring consumers receive an accurate picture of the product they’re purchasing, these restrictions on advertising often censor helpful information while overestimating the harm certain ads could cause, she said.

“The scientific process is quite messy and tentative and error prone,” Bambauer said. “When it comes to doctors and consumers who have to actually make decisions, it could be that subpar science is better than having no science at all.”

For example, she said, cigarette companies used to advertise that their products were healthier than competing brands.

In reality, certain brands were only marginally safer, so the Federal Trade Commission banned the ads.

But while government action might seem justified in that case, it had the effect of shutting down future advertising campaigns that might have focused on negative health effects, Bambauer said.

“Even statements that are not accurate can have beneficial effects on consumers by beginning a negative advertising campaign between producers of unhealthy products,” she said.

Other panelists, including Washington University School of Law professor Neil Richards, touched on the rights and responsibilities of technology companies when it comes to users’ intellectual privacy.

“In our lifetimes, we’ve moved from analog communications and technologies to digital ones. This is a story about technology, but it’s also a story about human values and how we can and should and must get our human values into technology,” Richards said.

For example, he said, companies like Google that have the ability to track a person’s search history on the Internet could have a chilling effect on intellectual discourse.

In other words, when people know they are being watched, they act differently.

“In a free society, when it comes to truth, when it comes to ideas, when it comes to belief and conscience, there is no such thing as a false idea,” he said. “Individuals need to figure out for themselves what those bad ideas are.”

Federal Communications Commission enforcement bureau chief Travis LeBlanc, a keynote speaker, emphasized the role of the federal government in promoting universal, open access to the Internet and imposing consequences on corporations that attempt to restrict access.

“Everyone can speak on the Internet, everyone can broadcast, everyone can assemble. There’s been this fundamental shift in where we exercise our First Amendment rights,” LeBlanc said. “As we at the FCC experience firsthand, the Internet is the most participatory public square the world has ever known. The Internet is where people assemble in the 21st century.”