Should Treatments Based on Junk Science Be Banned?

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If a claim is made based on so-called 'junk science,' can it be the basis for fraud or criminal prosecution, or can such claims be banned in some way by the state as dangerous speech?

Yesterday we looked at one such case regarding so-called gay conversion therapy programs. Some plaintiffs are seeking damages for fraud from a type of therapy that the American Psychiatric Association, among others, does not recognize as established science. 

Today, a federal judge in Sacremento takes up a case concerning California's ban against "gay conversion" therapy. 

Erwin Chemerinsky, is a professor and dean at the University of California, Irvine, School of Law.

"The government long has had the power to prohibit healthcare treatments, medical treatments, that it deems to be harmful or ineffective," Chemerinsky says. "And what the government is saying here is, so-called gay conversion therapy is a form of mental health treatment that's both ineffective and harmful." 

While some could make a free speech argument for this form of therapy, because it is defined as a kind of treatment, Cherminsky the government has more power to regulate it. 

"It's all about context. Certainly junk science in a lot of contexts is protected by the First Amendment," Chemerinsky explains. "What makes this unusual is, this is a form of healthcare treatment - mental healthcare treatment - that's done through speech, and that's why its advocates are arguing that free speech protects them. But free speech is not now - and never has been - absolute." 

As the California ban on "gay conversion" therapy goes to court, the Supreme Court considers whether to take up a case on the Defense of Marriage Act, or DOMA.

"The court has before it six different cases involving issues regarding marriage equality," Chemerinsky says. "I think the court is sure to take one of those cases concerning the Defense of Marriage Act."