The time may have come to extend the U.S. Supreme Court’s drive to constitutionalize the domain of speech torts into the field of products liability. This Article considers a pointed way of testing the viability of such a move: decisions recognizing an exception to the learned intermediary doctrine whenever manufacturers of prescription drugs or medical devices advertise directly to consumers, which seems to represent a fairly blatant violation of federal constitutional protections for commercial speech. Venturing into far more debatable territory, this Article then suggests that certain consumer goods closely connected to the exercise of fundamental rights—including but not limited to contraceptives—might deserve additional protection from the operation of well-established principles of strict products liability. If, however, that comes across as too radical an idea, then perhaps the longstanding constitutionalization of speech torts must remain distinctive, which also means that developments in the law of defamation can offer little assistance to those commentators who promote the notion that the Second Amendment should infiltrate the law of torts.
Lars Noah is Chesterfield Smith Eminent Scholar and Professor of Law, University of Florida.