this post was submitted on 06 Jul 2023
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Commercial speech has generally been afforded relatively little constitutional protection. It is legal to regulate misleading marketing claims like the one you describe.
Please note that here I am talking about free speech as a legal principle, not a moral one. (This is why I prefer to say "protected speech".) Whether or not the government ought to be able to ban covid misinformation is a matter of opinion which I am not addressing here.
See, I think misinformation about matters of public health is actionable. What I mean is that if you provide misinformation about something that results in damage to my health then you should be held legally liable.
Misinformation about covid-19 directly resulted in deaths of American citizens. There were people being admitted to emergency rooms for overdosing on ivermectin, and half the electorate seems to think that vaccines are now a bad idea. Measles is making a comeback because Donald Trump didn't want to be embarrassed about saying something wrong. And there's no penalty. For directly getting people killed with lies there's no penalty. It's just free speech. Yelling fire in a crowded movie theater may not be protected by free speech, but putting up a sign that says EXIT over a closet door that goes nowhere before the fire breaks out apparently is protected.