The Expressive Function of Public Health Policy: The Case of Pandemic Planning

Many legal scholars well recognize that, in some instances, support for a law or policy may be primarily because of its expressive function, i.e. the statements it makes about underlying values. In these cases, the expressive content of a law or policy may actually overshadow its central purpose. Examples of this phenomenon, according to Cass Sunstein, include, for example, regulations against hate speech in the USA. He suggests that achieving the consequence (prohibiting hateful speech against certain groups) may not be the real focus (central purpose) of the law. Rather, the real focus is on the social meaning of these regulations—that bigotry is unacceptable in a liberal society. In this way, a particular law or policy can operate on many levels—while aiming to achieve a particular objective or behavior, it can also be a valuable tool for achieving other important social goals through its expressive function. This article applies this insight to the realm of public health policy, with particular attention to the case of pandemic planning, and suggests that public health policy and its overall goals may be well-served by deliberate regard for, and appropriate utilization of, the expressive function.