October 14, 2020
By Timothy Sandefur
In legal terminology, a “nuisance” is anything you do that’s so unreasonable it makes it impossible for your neighbor to go about his or her business in peace. It’s a pretty broad term, but it’s basically well enough understood. The same can’t be said for the concept of “public nuisance,” which is a far stranger, and far more dangerous concept…if it even is a concept.
“Public nuisance,” in fact, is a term so vague that some 80 years ago, the famous law professor William Prosser called it “a legal garbage can”—meaning that it’s so loosely defined that almost anything can be declared a “public nuisance.” The idea behind “public nuisance” is supposed to be that there are some activities that harm the public’s interest generally—for instance, polluting a public river—and that judges can force you to stop. The idea originated centuries ago under British law, which considered “public nuisance” a kind of crime. But over the years, lawyers and judges have rendered it so vague and poorly understood that nobody today really knows if it even qualifies as a crime or not—and nobody really knows what is and isn’t a nuisance.
As a result, lawyers and politicians have used it as a weapon against nearly anything they consider bad. Cities across the country have sued gun manufacturers, for example, for making and selling guns, because that leads to violent crime and therefore is a bad thing—even though making and selling guns is perfectly legal. California sued General Motors for making cars, on the theory that it contributes to global warming and is therefore a public nuisance—even though the state of California itself owns and operates well over a million cars of its own. Companies that made and sold lead paint have been sued on the grounds that houses that were painted with lead paint back when it was legal have now, through deterioration and poor maintenance, become public nuisances. Activists in Oklahoma recently sued Tulsa on the theory that the Tulsa Race Massacre of 1921—a horrible race riot that led to the deaths of perhaps as many as 300 people and the destruction of countless black businesses—has led to multigenerational racial inequality which is…you guessed it: a public nuisance. In other words, “public nuisance” is a “sue over anything” theory.
That’s unconstitutional, because one of the bedrock principles of the Constitution is that everyone is entitled to “due process of law,” which at a minimum requires that you be told what is and isn’t illegal, in at least some broad terms. But “public nuisance” is a concept so vague that literally no lawyer knows what it means, and therefore it is unconstitutional.
That’s the argument we’ve submitted in a brief to the Oklahoma Supreme Court today in a case involving pharmaceutical companies that are accused of encouraging doctors to prescribe too many painkillers. The state’s attorney general has argued that by distributing scientific research that suggested that patients needed more pain medicine, these companies contributed to the increase in opioid addiction, and therefore their “marketing practices” are a public nuisance. But as we point out, such a broad definition of “public nuisance” risks subjecting any business to a lawsuit any time a politician decides he or she doesn’t like the general social consequences of that business’s operations.
This is especially problematic given that the “marketing practices” in this case consist of freedom of speech. The companies being sued gave doctors truthful information about legal medicines—something guaranteed by the First Amendment, and which could never be punished by the government under ordinary circumstances. Yet by labeling that speech a “nuisance,” government prosecutors are circumventing constitutional protections in order to penalize businesses. That’s bad for consumers, bad for business, and bad for constitutional freedom.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.