We probably can't ban prescription drug ads

Plus MechaHitler, messy research habits, and the never-ending big tent

The surge of interest around Trump and Jeffrey Epstein is a good opportunity to clarify something about my frequent injunctions for Democrats to pivot and focus on health care. The point of this, contra the presuppositions of some of my friends, isn’t that health care is magic or that talking about it is a panacea. It’s that Democrats happen to have dug themselves into a deep ideological hole where the related issues of abortion rights and health care are some of the only topics where voters default to trusting Democrats to handle the issue.

Ideally, Democrats would have a better image on a wider range of issues and they could talk about more stuff!

To wit, Epstein. The basic issue here is that most Americans, rightly or wrongly, believe there’s some kind of Epstein-related conspiracy or cover up, and it’s good politics to say stuff that most voters agree with. The Trump team used to have that baton — they were the party with the popular “we must expose the cove rup” position. Now, they’ve flip-flopped to the unpopular “nothing to see here” view and were hoping they could get away with flopping without explaining themselves or ever talking about it again. Democrats have the luxury of being agnostic as to whether they are exposing the conspiracy to cover up the contents of the “Epstein Files” or the conspiracy to convince people that damning files ever existed in the first place. Either way, it’s gravy.

But the general lesson here is really simple and really general: It’s good to take the popular side of an issue that people are interested in.

The virtue of health care is that people agree with Democrats. If the problem with health care is that it doesn’t have enough juice or pizzazz, then the solution is to take popular stands on issues with more juice. But just running headlong into issues of high GOP trust and telling yourself that’s smart because a lot of people are interested in it doesn’t make sense, any more than it would’ve made sense for Democrats to run around in February being conspiracy debunkers. It’s a good issue for Dems now because they’re now on the right side of it.

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Macon Fessenden: I heard you on a podcast a couple months back mention something about how it would be actually really difficult to get pharmaceutical companies to stop advertising because of something to do with the first amendment. Can you elaborate on that? I’ve never heard that anywhere else.

The United States of America has unusually strong protections for free speech compared to basically every other liberal democracy.

This is, in my view, overwhelmingly a good thing. We don’t have hate speech laws or the British situation where people are arrested for bad posts.

These speech protections also mean that there are significant constitutional barriers to regulating advertising. Way back in 1980, the Supreme Court ruled in a case called Central Hudson Gas & Electric Corp. v. Public Service Commission that while commercial speech is not completely immune from regulation, it does merit First Amendment protection. Accurate commercial speech about lawful activity can be regulated if the government has a substantial interest in regulating the speech, the regulation must directly advance that interest, and it must be no more extensive than necessary to advance the interest. In subsequent rulings, the Court has been very protective of commercial speech. There was a 1996 case about a Rhode Island law banning the advertisement of retail liquor prices in places where liquor is not sold.

The state argued both that this advanced a substantial state interest in promoting temperance and also that the 21st Amendment specifically grants states authority to regulate intoxicating liquors. The Court said no to that.

I am, as I say, generally a fan of American free speech practices. But I do think this creates a strange situation where the only way to prevent widespread advertising of sports gambling apps, for example, is to make sports gambling apps illegal. The idea that banning ads for sports betting is an intolerable restriction of individual liberty, but banning sports betting altogether is totally kosher doesn’t really make sense. And you have a parallel issue with marijuana and other vices. Or even just the Rhode Island case — there are no “dry” states that ban the sale of alcohol, but there used to be, and it’s clearly constitutional. But conditional on not making a vice illegal, you can’t curtail advertisement of the vice. That doesn’t make sense.

Similarly, the 1997 FDA Modernization Act created an approval process for compounded drugs but attached the requirement that companies must “not advertise or promote the compounding of any particular drug, class of drug, or type of drug.” But in the 2002 case of Thompson v Western States Medical Center, the Supreme Court struck this down and affirmed that if compounding is legal, then advertising it is also legal.

What’s interesting is that existing FDA rules do significantly restrict prescription drug advertising, which is an authority that Congress granted to the FDA. That’s why drug ads all have those side effect disclosures.

Part of the common law tradition is that American courts don’t normal offer takes on hypothetical scenarios. So in the Thompson case, the Supreme Court didn’t say whether the logic of their jurisprudence is that the entire FDA regulatory scheme is unconstitutional. The pharmaceutical industry has just chosen not to litigate it. To make a long story short, though, it seems to me that it’s very likely that if the FDA were to ban prescription drug ads, not only would the ban be struck down in court, but the ruling would overturn almost all existing regulation of pharmaceutical advertising.

Again, I find this all to be very lawyer-brained in a bad way. The FDA has an unquestioned right to deny approval of a prescription drug and say, “Nobody can buy this medicine.” So why can’t the FDA say, “People can buy this medicine, but you can’t advertise it on television?” It is clearly more freedom-respecting to regulate advertising than to ban things. But this is (apparently) not how constitutional lawyers think, so I think restricting pharmaceutical advertising is a nonstarter whether or not it’s a good idea.

Amy: I am skeptical of accounts such as the one in Vox that Elon simply made Grok too extreme, the premise being that he could have chosen to make a more subtle right wing AI. Elon has been trying for years to make a more subtle right-wing AI to no avail. I think it is likely that he just decided to throw in the kitchen sink and change the AI's ground conception of truth causing the kind of conspiracy theories and anti-semitism we saw. Do you think Elon's attempt to make right wing AI can teach us something interesting about right-wing epistemology? What do you think is going on there?

I’m not a machine learning expert, so I have limited capacity to speculate in an informed way here.

But I think this is downstream of how training and fine-tuning works. You might recall that a while back, Google released an iteration of Gemini that was so into diversity that it would display a racially diverse group of Nazi soldiers if asked to create an illustration of German soldiers from 1943.