Tag: First Amendment

The Government Shouldn’t Tilt The Speech Playing Field in Its Own Favor

New Hampshire passed a law prohibiting the transfer of doctors’ prescription history to facilitate drug companies’ one-on-one marketing — a practice known as “detailing” — because it believes detailing drives up brand-name drug sales and, in turn, health care costs.  The state knew that the First Amendment prevented it from banning detailing itself, so it made the practice more difficult indirectly. 

Yet data collection and transfer is protected speech — think academic research, or the phone book — and government efforts to regulate this type of speech also runs afoul of the First Amendment.  See, e.g., Solveig Singleton, “Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector” (Cato Institute Policy Analysis No. 295).  New Hampshire also engages in gross viewpoint discrimination: it exempts insurers’ efforts to persuade doctors to use generic drugs, and runs an “academic detailing” program to discourage brand-name drug use.

Remarkably, the First Circuit reversed a district court ruling that had invalidated the statute as unconstitutional, somehow finding that the statute regulates conduct rather than speech and that, in any event, the judiciary should defer to the legislative branch’s judgment.  Two companies that collect and sell health information and analysis filed a petition asking the Supreme Court to review the case.  Cato, joining Washington Legal Foundation, Reason Foundation, and a group of current and former state officials, has filed a brief supporting that petition.

Our brief argues that the Supreme Court should grant review because: 1) the speech at issue is worthy of First Amendment protection; 2) this case is a good vehicle for examining First Amendment issues attending state attempts to control health care costs (other states have passed similar laws); and 3) the lower court’s holding that a state may restrict speech to “level the playing field” conflicts with the Court’s precedent regarding both commercial speech and campaign finance regulation.

The Supreme Court will be deciding over the summer whether to grant review, with a decision expected after the “Long Conference,” which precedes the beginning of the new term in October.

All-Star Lineup in New York

Cato is planning a seminar in New York on April 30 with an all-star lineup of speakers: Nat Hentoff, our new senior fellow and perhaps the leading First Amendment advocate of the past generation. Top climate scientist Pat Michaels. Peter Schiff, the financial guru who spent 2006 and 2007 failing to persuade people that the U.S. housing and financial markets were on the verge of collapse. And Freeman Dyson, one of the world’s top scientists and the subject of a recent New York Times Magazine profile for his “heretical” views on global warming. Check out the program:

  • 11:05–11:35 a.m. Nat Hentoff —Keynote Address: An Endangered Native Species: The First Amendment
  • 11:35–11:55 a.m. Pat MichaelsClimate of Extremes: Global Warming Science They Don’t Want You to Know
  • 11:55 a.m.–12:15 p.m. Peter SchiffEconomic Crisis: A Government Failure
  • 12:30–2:00 p.m. Freeman Dyson —Luncheon Address: Climate Disaster, Safe Nukes, and Other Myths

Register for the event here ($100 per person).

Topics:

Oprah Escapes the Long Arm of the Law

oprahThe Washington Post reports on the latest ruling by the Federal Election Commission:

William Lee Stotts of Cordova, Tenn., filed a complaint in October alleging that Obama’s appearance on Winfrey’s popular talk show during the Democratic primaries amounted to an unlawful campaign contribution that gave him an ‘an unfair advantage over the other candidates, both Republican and Democrat, who were deprived such an opportunity.’

The FEC decided that Winfrey was a media entity and thus qualified for the “media exemption” from the campaign finance laws. Without that exemption, Obama’s appearance would have become an electioneering communication and thereby a violation of McCain-Feingold.

The FEC provides a timely reminder that we no longer have a unified First Amendment. Congress shall indeed “make no law” regarding the freedom of the media, including the freedom to publicize a presidential candidacy. That’s a good thing, by the way. The bad thing is the rest of us are expected to make do with Congress making all kinds of laws limiting freedom of speech. Some animals, I suppose, are more equal than other animals.

Dance Like Thomas Jefferson’s Watching

As Thomas Jefferson’s birthday (April 13) approaches – and last night being the first night of Passover, which Jews celebrate to commemorate their deliverance from slavery – I thought I’d comment on a disturbing tale that reminds us again that “the price of liberty is eternal vigilance.”

In celebration of Thomas Jefferson’s (265th) birthday last year, about 20 D.C.-area libertarians gathered at the Jefferson Memorial just before midnight.  The plan was to have a music-through-headphones dance party for the father of the Declaration of Independence (i.e. each person would dance to the tune of his individual iPod). I was actually supposed to attend, but for some reason did not make it.

It was a short-lived party, however, with an ending that would almost certainly have made our nation’s third president frown in disapproval.

Shortly after the silent bopping started, U.S. Park Police officers began to disperse the partygoers. After shooing and pushing revelers (who were drunk only on liberty) off the memorial, one officer confronted the lone remaining dancer, Brooke Oberwetter, and told her to leave.  Oberwetter calmly asked what law or rules she was violating.  The officer provided no explanation but continued to insist that she leave.  Not satisfied with the officer’s response, Oberwetter stood her ground – until the officer pushed her against a stone pillar, handcuffed her, and led her away.

Now, nearly one year later – after the citation against her (for “interfering with an agency function,” whatever that means) was neither dropped nor pursued – Oberwetter filed suit in the U.S. District Court for the District of Columbia against the arresting officer, Kenneth Hilliard, and the Secretary of the Interior, Kenneth Salazar (whose office oversees the Park Police). Oberwetter argues that Hilliard and the Park Police violated her First Amendment rights by interrupting and preventing her expressive activity and freedom of assembly.  She also alleges that here Fourth Amendment rights were violated when she was arrested without probable cause and with excessive force.

The complaint, available here, is a model of legal writing.  Pithy, legally sound, and eminently readable, I cannot recommend it more highly to law students and young lawyers.  This is perhaps not surprising because Oberwetter’s counsel is none other than my friend Alan Gura, who last year successfully argued D.C. v. Heller before the Supreme Court.
Here’s a recent TV news story about the case and here’s Radley Balko’s (formerly of Cato, now at Reason) original post about the incident.

Full disclosure: While our tenures never crossed, Oberwetter is a former Cato employee – and a social acquaintance.  I wish Brooke and Alan the best in their fight against such arbitrary use of government power to oppress basic liberty.  (As Alan told me, a good rule of thumb for police: if you can’t think of any charges, even a few weeks later, it was probably a bad arrest.)  And I hope the incident gets Kevin Bacon thinking sequel.