Tag Archives: first amendment

The Justices Lay Down the Law

By David B. Rivkin Jr. and Lee A. Casey

June 27, 2017, in the Wall Street Journal

In one of the last decisions of its term, the U.S. Supreme Court dealt a clear rebuke to politicized lower courts. The justices’ unanimous ruling in Trump v. International Refugee Assistance Project upholds both the integrity of the judiciary and the Supreme Court’s own authority.

The case came to the justices from two federal appellate courts. They had upheld trial judges’ orders halting enforcement of President Trump’s “travel ban” executive order, which temporarily limits entry to the U.S. by nationals from six countries. The court will hear the appeal on the merits in October. On Tuesday it held unanimously that the executive order can be immediately enforced, with narrow exceptions, until they address the merits of these cases in the fall.

The challenges to the order claimed it violated the First Amendment’s protection of religious freedom and exceeded the president’s authority under immigration law. Both the substance and tone of these decisions created an unmistakable impression that a portion of the judiciary has joined the anti-Trump “resistance.” Not only did the lower-court judges defy clear and binding Supreme Court precedent, they based much of their legal analysis, incredibly, on Candidate Trump’s campaign rhetoric.

The high court didn’t rule entirely in the administration’s favor. By a 6-3 vote, with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissenting, it held that the individuals who originally challenged the order could continue to do so, as could a carefully defined class of “similarly situated” persons with “close familial” relationships to individuals in the United States, along with institutions that can show a “formal, documented, and formed in the ordinary course” relationship to a U.S. entity.

That, the court specifically cautioned, is not an invitation for evasion by immigration advocates: “For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

That exception, Justice Thomas noted for the dissenters, was a “compromise”—most likely the product of Chief Justice John Roberts’s effort to achieve a unanimous decision. Given the circumstances, this was a good outcome. It lends the imprimatur of the full court to the rebuke of the lower courts, and avoids the kind of partisan split that prevailed in both the Fourth and Ninth Circuit Courts of Appeals. All nine justices are also now on record supporting the proposition that the vast majority of foreign nationals cannot claim a constitutional right to enter the United States.

When the court reviews the merits of the case in the fall, however, such considerations will be out of place. While courts can adjudicate cases involving immigration and other foreign affairs issues, judicial engagement in this space is fundamentally different than in domestic affairs. In an area of decision-making that involves both institutional knowledge of international affairs and continuous access to classified information, great deference is in order from the courts. If the courts wade into this area, they would undermine both national security and respect for the judiciary. The perception that judging is swayed by political or ideological considerations would be particularly calamitous in this area. Better a 5-4 decision articulating this view clearly than a unanimous but equivocal one.

The odds of a clear outcome are good. As Justice Thomas pointed out, his colleagues’ “implicit conclusion” is that the administration is likely to prevail on the merits. The high court’s own precedent in this area is clear. Nonresident aliens have no constitutional right to enter the U.S. When denying entry, the president need only provide a “facially legitimate and bona fide” justification. As the court held in Kleindienst v. Mandel (1972), once that justification is established, there is no further inquiry or balancing for the courts to make.

Any other decision would be both inconsistent with the court’s precedent and injurious to the Constitution’s separation of powers. It would also compromise the president’s ability to defend the nation at home and abroad and cause grave harm to the judicial branch in maintaining its own critical constitutional role.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/the-justices-lay-down-the-law-1498604382

Release the GOP Delegates

Trump’s nomination isn’t inevitable—delegates won’t be legally ‘bound’ going into the convention.

by Erik O’Keefe and David B. Rivkin Jr., Wall Street Journal, June 12, 2016

Recent weeks have not been kind to the Grand Old Party. Republicans have been embarrassed by Donald Trump ’s racist attacks on Gonzalo Curiel, the federal judge presiding over a fraud lawsuit against Trump University. They have watched him assault popular GOP leaders like Speaker Paul Ryan and New Mexico Gov. Susana Martinez. Many among the party faithful are realizing that Mr. Trump may flame out before Election Day—and that he could bring the party’s slate of candidates down with him.

Yet conventional wisdom remains that Mr. Trump’s nomination is inevitable. The theory is twofold: First, his primary victories give him enough delegates to prevail on the first ballot at the Republican convention in July. Second, those delegates are bound to vote for Mr. Trump by state laws and GOP rules.

Not so fast. Although 20 states have passed laws that purport to bind delegates, these statutes can’t be legally enforced. When Republican delegates arrive in Cleveland to select their party’s nominee, they should recognize that they are bound only by their consciences.

It’s true that Rule 16 of the Republican National Committee says primaries will be used to “allocate and bind” delegates. But that rule expires at the convention’s start. Though a majority of delegates could vote to adopt a binding rule at the convention, that’s unlikely. It has happened only once before, in 1976, when loyalists of President Ford sought to block the insurgency of Ronald Reagan. This year the Rules Committee will be packed with supporters of Sen. Ted Cruz, who has not endorsed Mr. Trump.

State laws that purport to bind delegates can’t be enforced without violating the First Amendment. A political party is a private association whose members join together to further their shared beliefs through electoral politics, and they have a right to choose their representatives. The government has no business telling parties how to select their candidates or leaders: That would be a serious infringement of the rights to free association and speech. Continue reading

Punishing Climate-Change Skeptics

Some in Washington want to unleash government to harass heretics who don’t accept the ‘consensus.’

By DAVID B. RIVKIN JR. and ANDREW M. GROSSMAN

March 23, 2016 6:29 p.m. in the Wall Street Journal

Galileo Galilei was tried in 1633 for spreading the heretical view that the Earth orbits the sun, convicted by the Roman Catholic Inquisition, and remained under house arrest until his death. Today’s inquisitors seek their quarry’s imprisonment and financial ruin. As the scientific case for a climate-change catastrophe wanes, proponents of big-ticket climate policies are increasingly focused on punishing dissent from an asserted “consensus” view that the only way to address global warming is to restructure society—how it harnesses and uses energy. That we might muddle through a couple degrees’ of global warming over decades or even centuries, without any major disruption, is the new heresy and must be suppressed.

The Climate Inquisition began with Michael Mann ’s 2012 lawsuit against critics of his “hockey stick” research—a holy text to climate alarmists. The suggestion that Prof. Mann’s famous diagram showing rapid recent warming was an artifact of his statistical methods, rather than an accurate representation of historical reality, was too much for the Penn State climatologist and his acolytes to bear.

Among their targets (and our client in his lawsuit) was the Competitive Enterprise Institute, a think tank prominent for its skeptical viewpoint in climate-policy debates. Mr. Mann’s lawsuit seeks to put it, along with National Review magazine, out of business. Four years on, the courts are still pondering the First Amendment values at stake. In the meantime, the lawsuit has had its intended effect, fostering legal uncertainty that chills speech challenging the “consensus” view.

Mr. Mann’s lawsuit divided climate scientists—many of whom recognized that it threatened vital scientific debate—but the climate Inquisition was only getting started. The past year has witnessed even more heavy-handed attempts to enforce alarmist doctrine and stamp out dissent.

Assuming the mantle of Grand Inquisitor is Sen. Sheldon Whitehouse (D., R.I.). Last spring he called on the Justice Department to bring charges against those behind a “coordinated strategy” to spread heterodox views on global warming, including the energy industry, trade associations, “conservative policy institutes” and scientists. Mr. Whitehouse, a former prosecutor, identified as a legal basis for charges that the Racketeer Influenced and Corrupt Organizations Act, or RICO, the federal statute enacted to take down mafia organizations and drug cartels.

In September a group of 20 climate scientists wrote to President Obama and Attorney General Loretta Lynch encouraging them to heed Mr. Whitehouse and launch a RICO investigation targeting climate skeptics. This was necessary since, they claimed, America’s policy response to climate change was currently “insufficient,” because of dissenting views regarding the risks of climate change. Email correspondence subsequently obtained through public-records requests revealed that this letter was also coordinated by Mr. Whitehouse.

Reps. Ted Lieu (D., Calif.) and Mark DeSaulnier (D., Calif.) followed up with a formal request for the Justice Department to launch an investigation, specifically targeting Exxon Mobil for its funding of climate research and policy organizations skeptical of extreme warming claims. Attorney General Lynch announced in testimony this month that the matter had been referred to the FBI “to consider whether or not it meets the criteria for what we could take action on.” Similar investigations are already spearheaded by state attorneys general in California and New York.

Meanwhile, Mr. Whitehouse, joined by Sens. Edward Markey (D., Mass.) and Barbara Boxer (D., Calif.), sent letters to a hundred organizations—from private companies to policy institutes—demanding that they turn over information about funding and research relating to climate issues. In his response to the senators, Cato Institute President John Allison called the effort “an obvious attempt to chill research into and funding of public policy projects you don’t like.”

Intimidation is the point of these efforts. Individual scientists, think tanks and private businesses are no match for the vast powers that government officials determined to stifle dissent are able to wield. An onslaught of investigations—with the risk of lawsuits, prosecution and punishment—is more than most can afford to bear. As a practical reality, defending First Amendment rights in these circumstances requires the resources to take on the government and win—no matter the cost or how long it takes.

It also requires taking on the Climate Inquisition directly. Spurious government investigations, driven by the desire to suppress a particular viewpoint, constitute illegal retaliation against protected speech and, as such, can be checked by the courts, with money damages potentially available against the federal and state perpetrators. If anyone is going to be intimidated, it should be officials who are willing to abuse their powers to target speech with which they disagree.

That is why we are establishing the Free Speech in Science Project to defend the kind of open inquiry and debate that are central to scientific advancement and understanding. The project will fund legal advice and defense to those who need it, while executing an offense to turn the tables on abusive officials. Scientists, policy organizations and others should not have to fear that they will be the next victims of the Climate Inquisition—that they may face punishment and personal ruin for engaging in research and advocating their views.

The principle of the First Amendment, the Supreme Court recognized in Dennis v. United States (1951), is that “speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies.” For that principle to prevail—in something less than the 350 years it took for the Catholic Church to acknowledge its mistake in persecuting Galileo—the inquisition of those breaking from the climate “consensus” must be stopped.

Messrs. Rivkin and Grossman practice appellate and constitutional litigation in Washington, D.C.

Source: http://www.wsj.com/articles/punishing-climate-change-skeptics-1458772173

Apple, the FBI and free speech

A court order that compels the iPhone-maker to write and then sign new code may violate the First Amendment.

by David B. Rivkin, Jr., and Andrew M. Grossman, in USA Today

February 19, 2016

It would be one thing if Apple could carry out a court order that it unlock an iPhone used by the San Bernardino terrorists simply by waving a magic wand. But encryption isn’t magic; the order requires Apple to write and digitally sign a security-degraded version of its iOS operating system. That raises serious First Amendment concerns because the order amounts to a government-compelled speech.

The FBI picked this fight to set a precedent. For years, it’s been locked in a “crypto war” with Silicon Valley over how to provide law enforcement access to users’ data. So far, Apple, Google, and other companies have rebuffed demands to implement government back doors that defeat encryption and other security measures, arguing that such bypasses weaken security and facilitate abuses by criminals, corporate spies and foreign governments.

Apparently unable to identify a true ticking-time-bomb scenario to bring to court, the FBI settled for the next best thing: obtaining encrypted data off the workplace phone of shooter Syed Farook. The phone’s encryption is keyed to a passcode, and Apple’s software erases data after ten incorrect passcode attempts. So the government, relying on an aggressive reading of the 1789 All Writs Act, obtained an order directing Apple to “bypass or disable the auto-erase function” and make it possible to cycle through all possible passcodes.

While the FBI has previously obtained warrants requiring Apple to extract unencrypted data from devices running older software, this appears to be the first time that it has sought to conscript a company to write new software to circumvent security features. If it prevails, such a precedent will govern future cases.

That makes it all the more important that the courts get the legal principles right this time around. Overlooked so far in this debate is the First Amendment’s prohibition on compelled speech. The Supreme Court has affirmed time and again that the right to free speech includes the right not only decide what to say but also what not to say. Representative cases have upheld the right of parade organizers to bar messages they disapprove and of public employees to refuse to subsidize unions’ political speech.

Computer code can be speech: no less than video games (which the Supreme Court found to be protected), code can convey ideas and even social messages. A new encryption algorithm or mathematical technique, for example, does not lose its character as speech merely because it is expressed in a computer language instead of English prose.

That’s not to say that all code is absolutely protected. But there’s a strong case to be made where code embodies deeply held views on issues of public policy and individual rights — such as the right to be free from government surveillance. Forcing a person to write code to crack his own software is little different from demanding that he endorse the principle of doing so.

And that leads to the most troubling aspect of the court order: it does, in fact, demand that Apple endorse the government’s views by requiring that it digitally sign the software so that it can run on an iPhone. A signature speaks volumes: agreement, endorsement, trust, obligation. Apple says all those things when it decides to sign a new version of its operating system.

The government can’t force a person to sign a petition and endorse a political view. But that is exactly what it demands here: to compel Apple to endorse a version of its own software that runs precisely counter to its values. At the very least, that is one more reason for a court to reject the government’s aggressive legal position in this case.

David B. Rivkin, Jr., who served in Republican administrations, and Andrew M. Grossman, who is an adjunct scholar of the Cato Institute,, are attorneys at Baker & Hostetler. 

Source: http://www.usatoday.com/story/opinion/2016/02/19/apple–iphone-fbi-san-barnardino-terrorism-free-speech-column/80569422/

 

Hillary’s Rationale for Opposing Citizens United Fell Apart in Last Week’s Debate

by DAVID B. RIVKIN JR. & DARIN BARTRAM

February 9, 2016 in the National Review Online

Few politicians have railed more loudly against the Supreme Court’s 2010 key First Amendment decision, Citizens United v. FEC, than the star of the Citizens United–produced political documentary (Hillary: The Movie) that provided the factual basis for the decision. But forget about the kind of independent advocacy at issue in that case or even highly regulated campaign contributions. At last Thursday’s debate against Bernie Sanders, Hillary Clinton grandly asserted that she could not be bought or influenced even by huge amounts of money flowing directly into her own pocket from mega-corporations such as Goldman Sachs. She angrily denied the corrupting influence of money in politics when she is the one cashing the check. Having done that, on what possible basis can Secretary Clinton oppose the kind of independent speech unleashed by Citizens United?

It has become a matter of Democrat orthodoxy that Citizens United has been a disaster, because it enables groups of citizens, including those organized in the corporate form, to freely engage in political speech. To many Democrats, that is tantamount to buying elections and politicians. Secretary Clinton’s opposition to Citizens United is well known and a central plank of her presidential campaign. Just last month, in noting the six-year anniversary of that decision, she accused the Court of having “transformed our politics by allowing corporations to spend unlimited amounts of money to influence elections.”

While slamming the Supreme Court’s decision, Hillary Clinton has pledged something that most presidential candidates shy away from: a litmus test for future Supreme Court nominees if she is elected, to ensure they would vote to overturn Citizens United. She has also endorsed partially repealing the First Amendment to enable the government to restrict political speech for a variety of purposes, including the alleged need to equalize the ability of diverse voices to participate in democratic governance. Presumably, films like Hillary: The Movie wouldn’t make the cut.

The Supreme Court in Citizens United concluded that the First Amendment prohibits the government from restricting independent political advocacy by corporations, labor unions, and associations, because such speech expenditures do not pose a threat of quid pro quo corruption or even the credible appearance of corruption. They simply expand the marketplace of ideas. The decision led to the establishment of super PACs, regulated groups that can receive unlimited donations from individuals and corporations to spend on political and policy advocacy. It also permitted well-established national advocacy groups — whether the National Rifle Association or the Sierra Club — to become energetically engaged in political speech and debates.

It would perhaps be unreasonable to ask Clinton to live under the campaign-finance regulations she claims to favor rather the ones that exist today and under which her Republican opponents operate. (To be sure, Senator Bernie Sanders has managed to nearly match her in the polls notwithstanding his lack of a quasi-official super PAC.) Not surprisingly, Sanders has distinguished himself from Clinton by noting her cozy relationship with Wall Street firms and repeatedly called attention to the huge speaking fees Clinton has received from Goldman Sachs and others, as well as the millions of dollars in campaign and super-PAC contributions from the finance and pharmaceutical sectors that support her candidacy.

At the Thursday debate, Clinton clearly had had enough. She said that Sanders was engaging in a “very artful smear” when he repeatedly highlighted these fees and contributions. She accused him of insinuating that someone who “ever took donations or speaking fees from any interest group has to be bought.” Clinton also very forcefully said, “You will not find that I ever changed a view or a vote because of any donation I ever received.”

By asserting that she can take money from these groups, including honorary fees to spend as she sees fit for personal rather then political benefit, and that she has not been even slightly influenced by all this largess, she has disavowed the corrupting influence of money in politics far beyond anything contained in Citizens United. Money corrupts the typical politician, she seems to be claiming; but she alone is a person of such moral probity that, like Marlow venturing into the jungle in Heart of Darkness, she can escape unchanged — even when companies such as Goldman Sachs are cutting checks to her personal account. Does Clinton honestly believe it would be more corrupting if, rather than paying off Clinton directly, Goldman instead sponsored TV ads in support of her candidacy? Of course not — the very idea is ludicrous.

We will probably never know whether Secretary Clinton’s assertion at the debate of Sanders’s “very artful smear” was rehearsed, or spontaneous. What is beyond doubt is that Secretary Clinton just gutted the basis for her long opposition to the Citizens United decision.

David B. Rivkin Jr. served at the Department of Justice and the White House Counsel Office during the Reagan and George H. W. Bush administrations. Darin Bartram practices constitutional law in the Washington, D.C., area.

Source: http://www.nationalreview.com/article/431009/hillary-clintons-citizens-united-opposition-hypocrisy-illogic

Symposium: Correcting the “historical accident” of opt-out requirements

By David Rivkin and Andrew Grossman, 27 August 2015 in SCOTUSblog

Whatever the fate of mandatory “fair share” payments that nonmembers are often required to make to fund public-sector unions’ collective bargaining activities, Friedrichs will likely mark the end of requirements that dissenting workers take action to “opt out” of funding public-sector unions’ political and ideological activities, the subject of the second question that the Court agreed to consider. Although less prominent than the forced-payments issue, ending opt-out requirements would correct a serious anomaly in the Court’s First Amendment jurisprudence, one that facilitates tens of millions of dollars annually in union political spending of funds obtained through inertia, trickery, and coercion.

If everyone agrees that forcing public employees to subsidize a labor union’s political or ideological speech impinges their First Amendment rights – and the Court has been unanimous on that point for decades – then what possible justification is there for requiring workers who’ve declined to join the union to go through the arduous process of opting out from making such payments year after year? Put differently, why not allow workers who support a union’s political activities to opt in to funding them, rather than require dissenting workers to play a game of cat and mouse to stop the union from taking their money to fund ideological causes they likely oppose? We’ve never heard a compelling justification for the current “opt out” regime and, like the majority in Knox v. SEIU, suspect that there isn’t one.

Instead, as the Court recounted in Knox, “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.” In early cases, workers subject to the Railway Labor Act sought relief from being forced to fund unions’ political activities, and the Court assumed (the statute saying nothing one way or the other) that allowing them to affirmatively object to funding such expenditures would be sufficient to protect their rights. Without any reasoning or analysis, the Court in Abood further assumed that the opt-out approach discussed in those prior statutory cases was sufficient to remedy the First Amendment violation when a public employee is coerced into subsidizing political or ideological speech by the threat of loss of governmental employment.

But that was a dubious assumption, for both legal and practical reasons. As a legal matter, the opt-out approach plainly violates the cardinal rule that procedures involving compelled speech and association must be “carefully tailored to minimize the infringement” of First Amendment rights. Under the opt-out approach, dissenting workers bear the risk that, if they are unsuccessful in following the opt-out procedure reluctantly administered by the union, their money will be used to further political and ideological ends with which they do not agree. The labor union, whose constitutional rights are not at stake, bears no risk at all – by default, it gets the money.

As a practical matter, labor unions have not made it easy for workers to opt out of funding political activities. No union of which we’re aware presumes that workers who have declined to join it – and therefore presumably don’t support its political activities – wish to opt out from subsidizing those activities. Nor do unions presume that workers who opted out last year, the year before, etc., might wish to do so again this year – workers must go through the process of objecting every single year, except for where courts have mandated otherwise. Opt-out requests are typically permitted only during an annual “objection period,” and unions do the bare minimum required by law to publicize workers’ opt-out rights. Other materials provided by the union often attempt to sow confusion over opting out. For example, the California Teachers Union enrollment form gives the impression that teachers can join the union without funding its political activities; the relevant checkbox, however, only concerns whether a portion of dues will be allocated to the union’s political action committee. Forms used by other unions give workers the opportunity to opt out of relatively small PAC contributions and receive a refund. In either instance, workers still pay the full subsidy for the union’s own political activities. The point of this chicanery is to confuse workers into thinking that they’ve exercised their opt-out rights when they actually haven’t. And then there’s the intimidation and harassment often leveled against workers attempting to exercise their opt-out rights.

These difficulties arise from the inherent conflict of interest in requiring a labor union to administer the procedures for workers who object to funding its own activities. Of course the unions don’t want to make it easy to opt out. As a result, the courts have been forced to constantly police unions’ grudging administration of the opt-out process. It is strange, when you think about it, that workers’ First Amendment right to be free from compelled speech and association is at the mercy of the very organizations that the workers are seeking to resist.

These issues came to a head in Knox, a 2012 decision concerning a challenge by dissenting workers forced to pay into an “Emergency Temporary Assessment to Build a Political Fight–Back Fund” intended for politicking. Because “a special assessment billed for use in electoral campaigns” went beyond anything the Court had previously considered, it gave the opt-out issue a fresh look. Applying the general First Amendment principle that “individuals should not be compelled to subsidize private groups or private speech,” it held that a public-sector union imposing a special assessment or dues increase partway through the year may not exact any funds from nonmembers without their affirmative consent.

This affirmative consent, or “opt-in,” requirement drew criticism from Justice Sonia Sotomayor (in concurrence, joined by Justice Ruth Bader Ginsburg) and Justice Stephen Breyer (in dissent, joined by Justice Elena Kagan). Justice Sotomayor agreed that the union was constitutionally required to provide an additional notice to workers and opportunity to make their choice, but she faulted the majority for (in her view) reaching beyond those issues to hold that affirmative consent was required. Justice Breyer, in turn, argued that the union had reasonably complied with the Court’s precedents by reducing the special assessment charged to workers who had already objected by the proportion of total dues that it had spent on political activities in the previous year.

Notably, neither separate opinion offered any defense on the merits of requiring workers to opt out from subsidizing unions’ political speech. Although recognizing that the majority “cast serious doubt on longstanding precedent,” Justice Sotomayor made no attempt to address the validity or correctness of that precedent. Justice Breyer deemed the majority’s approach “particularly unfortunate” because its logic seems “to apply, not just to special assessments, but to ordinary yearly fee charges as well,” which means that “the opinion will play a central role in an ongoing, intense political debate” – one that he would have the Court avoid entirely. The most he ventured on the merits of the question was that an opt-in requirement might not do much good, because “the additional protection it provides primarily helps only those who are politically near neutral.”

But even that tepid objection falls apart under scrutiny. The reality is that the burden of opt-out requirements has artificially suppressed objections. According to the Bureau of Labor Statistics, thirty-three percent of state government workers and forty-six percent of local government workers are represented by labor unions. About eight percent of those workers have declined union membership – a prerequisite to opting out of paying political subsidies. Yet polls consistently report that about a quarter of state and local employees subject to collective-bargaining agreements identify themselves as Republicans, with another thirty percent or so identifying as independent. It is no secret that unions’ political expenditures overwhelmingly favor the Democratic Party and its candidates – for example, ninety-eight percent of the American Federation of Teachers’ donations go to Democrats. This means that, due to opt-out requirements, more than three million public-sector workers are paying to subsidize a political party that they have refused to join, with one million of those workers identifying as members of the opposing party.

So far as we’re aware, there isn’t any good argument in favor of requiring employees to bear the often-considerable burden of objecting so as to avoid paying into labor unions’ political coffers. But there is an honest one. In a moment of candor, a teachers’ union explained in litigation that it favors opt-out requirements because they allow unions to “take advantage of inertia on the part of would-be dissenters who fail to object affirmatively.” In fairness, one can certainly understand why labor unions would want to collude with state and local politicians to exact political funds from unwilling employees who may not know how to satisfy convoluted opt-out procedures or are reluctant to bear the burden of doing so.

But it’s more difficult to understand how such a scheme could ever withstand the careful application of First Amendment principles.

David B. Rivkin, Jr., and Andrew M. Grossman practice appellate litigation in the Washington, D.C., office of Baker & Hostetler LLP. They filed an amicus brief in support of certiorari in Friedrichs v. California Teachers Association on behalf of the Cato Institute, where Mr. Grossman is an adjunct scholar.

Source: http://www.scotusblog.com/2015/08/symposium-correcting-the-historical-accident-of-opt-out-requirements/

A legal cure for the FDA’s free speech malady

By DAVID B. RIVKIN JR. And ANDREW GROSSMAN, May 21, 2015

We are free to tell you that a clinical trial shows the drug Vascepa to be an effective treatment for persistently high triglyceride levels. But should the drug’s manufacturer, Amarin, tell you or your doctor the same thing, the company would face criminal prosecution and civil liability. Therein lies a First Amendment anomaly, one that may finally be resolved by a lawsuit that Amarin filed earlier this month against the Food and Drug Administration.

The FDA has long banned promotion of drugs for uses other than those it has approved. Yet so-called off-label uses are legal and account for about 20% of all prescriptions. Some off-label uses of drugs have even become the standard of care for particular conditions.

But the drug’s manufacturer and its agents—and only them—cannot legally talk about this. Patients can—and do—discuss off-label uses of drugs endlessly in online forums. Doctors certainly exchange information about these uses.

But Amarin can’t say anything about the Vascepa trial. The drug is approved only as a treatment for “very high” triglyceride levels, not those that are merely persistently high. As a result, doctors and their patients are being kept in the dark about a treatment that, for some patients, has fewer side effects than other drugs.

The FDA claims its speech ban is a necessary part of its drug-approval process, which requires manufacturers to demonstrate efficacy for each intended use. The agency aggressively investigates and the government regularly prosecutes pharmaceutical companies and their representatives that promote off-label uses of their drugs. Yet once a drug is approved, doctors can prescribe it for any use—and the FDA recognizes, in its regulatory guidance—that such uses are essential to effectively translate medical research into improved health outcomes.

The only real explanations for the FDA’s conduct are maintaining tight control over pharmaceutical companies and bureaucratic aggrandizement.

The FDA’s ban on discussing off-label drug uses is indefensible under First Amendment law. The speech it bans is truthful, not misleading, and concerns a lawful activity. Yes, the government has a substantial interest in drug safety and public health, but banning truthful speech on health issues won’t advance public health. Drug manufacturers know more about their products than anyone else. The off-label promotion ban denies doctors’ and patients’ abilities to make informed and intelligent treatment decisions. As the Supreme Court recognized in Sorrell v. IMS Health Inc. (2011)—which struck down a state law prohibiting the sale of prescribing data to pharmaceutical companies—“information can save lives.”

Blocking such information could cost lives. New uses for existing treatments are discovered all the time. The recent Ebola outbreak, for example, prompted researchers to evaluate the efficacy of existing antiviral drugs against the disease, hoping to find an off-label match. That process continues for survivors who face lingering symptoms. When Dr. Ian Crozier, an Ebola survivor, was recently found to still harbor the virus in his eye, doctors successfully treated him with an experimental antiviral drug. Another recent example is Rapamune, an immunosuppressant approved for use in kidney transplants that has been found to suppress certain types of cancers, including of the lung.

A prohibition on the promotion of off-label drug uses by means of false or misleading information—in other words by fraud—would surely pass constitutional muster. Moreover, the FDA could also assist doctors and patients in sorting through information regarding off-label uses, much as it already provides safety information for approved uses on its website. The agency could even ban particular off-label uses where this was necessary to protect public health.

But the FDA has no intention of loosening its grip. In 2012 the Second Circuit Court of Appeals overturned—on First Amendment grounds—the conviction of a pharmaceutical sales rep for talking to physicians about the off-label uses of narcolepsy drug Xyrem. However, the agency has not appealed the decision in United States v. Caronia, most likely to avoid an adverse ruling by the Supreme Court that would apply across the country.

Unfortunately, even if the government loses the Amarin case, it will again probably forgo an appeal. This would enable the FDA to continue enforcing a flagrantly unconstitutional policy by default. The best prospect for a cure may lie in Congress.

Messrs. Rivkin and Grossman are attorneys with the BakerHostetler firm in Washington, D.C.