More Wins for Business Speech Rights

Look, I’m fine with straightforward health and safety labeling. I’m even OK with disclaimers that are necessary to keep advertising from being deceptive.

Likewise, I’ve got no problem with businesses being prohibited from lying about their products. That’s not OK; it doesn’t do anyone any good (well, except for the liars, but even then, it rarely works long term).

But these concepts are pernicious. One restriction or requirement begets another, and before you know it we’re in a thicket of disclaimer requirements and speech prohibitions. And quite apart from the offensiveness of the government mandating what a business can and cannot say, there’s this: as the government finds more and more things it wants to compel businesses to say (or not say), the less meaning the remaining speech has.

So I always love seeing overreaching speech restrictions getting smacked down by the courts. Here are two very recent examples:

Nat’l Assn. of Manufacturers v. SEC (D.C. Circuit, August 2015)

This opinion is an awesome read. If you follow this area, you’ll recall that the D.C. Circuit issued an absolutely loathsome en banc ruling last¬†year, finding that government can basically compel speech on a whim. This particular case – involving the SEC’s controversial “conflicts minerals” disclosure requirement – was then re-heard as a result. In the opinion, the court goes to great length to point out how screwed up the 2014 en banc decision was, but that it must follow it, and then finds a way to STILL find the conflicts mineral rule unconstitutional. It’s almost like a circuit split within a single circuit!

Amarin Pharma v. FDA (So. Dist. NY, August 2015)

The FDA may be responsible for ensuring food and drug safety, and I’m sure there’s plenty of stuff it does a fine job with. But it’s also crazy, mercurial, and far more focused on process than results. It also has a funny thing for the truth: it has long prohibited drug companies and their employees from making truthful statements relating to off-label drug use. In effect, it’s a form of tightly controlled speech: these companies can only use FDA-approved language when referring to their products, at risk of criminal sanctions – even when what they are saying is 100% truthful. Three years ago, the 2nd Circuit started to unravel this issue in the Caronia case, and Amarin follows on that. The fact that the FDA chose to keep fighting this even in the face of Caronia¬†shows how hard litigants must fight against the perniciousness of speech regulation.