Category Archives: First Amendment

Its been said that you can tell whats really inside a person when you see how they perform under stress. You can watch them display a certain demeanor on Sundays and out in public, but, as the saying goes, When they are squeezed, watch what really comes out.

A reporter got in his face, as reporters do to get the story. He reacted with violence and a vulgar command, repeating it more than once. He didnt have any trouble saying this. It came out easily when he was squeezed, so you can imagine that it wasnt the first time hes said it.

Hell be carefully guarded in the future to allow only friendly types anywhere near him. It will make living in Washington and in Montana a lot harder, living in a prison like that.

As the troupe of actors crisscrosses Montana next summer, we can admire the cargo trailer featuring the family name. It will also appear on the program for the local symphony, along with a symbol to represent their faith. Religious holy books are often held up and quoted when they are needed to prove a point. Watch how they are followed in daily life.

The U.S. Constitution is held up when we want to strengthen the Second Amendment, to sell an assault rifle or condemn a policy we dont like. Is it held up to protect the First Amendment, freedom of the press?

Dont ask any tough questions. Access to your leaders means access to them if you agree with them, even more access if you bring your checkbook. Now representing us, the courageous duo, Sen. Runandhhide and Congressman Runandhide, who join President Integrity to make America great again.

Judge not, that you not be judged. The measure you give will be the measure you get.

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Gianforte should remember First Amendment, too - The Bozeman Daily Chronicle

So the U.S. Court of Appeals for the 9th Circuit held Thursday, in Taub v. City & County of S.F.:

Plaintiffs Oxane Gypsy Taub and George Davis , self-described body freedom advocates, appeal the dismissal of their claims against the City and County of San Francisco and the San Francisco Police Department Plaintiffs allege that Defendants violated their First Amendment rights by enforcing San Franciscos public nudity ordinance.

1. Public nudity is not inherently expressive, but it may in some circumstances constitute expressive conduct protected under the First Amendment. Even if Plaintiffs public nudity at political rallies was entitled to First Amendment protection, however, we hold that the challenged ordinance is a valid, content-neutral regulation as applied to Plaintiffs expressive conduct under United States v. OBrien (1968). OBrien is the applicable test here because the ordinance is aimed at the conduct itself, rather than at the message conveyed by that conduct.

The challenged ordinance satisfies [the] OBrien factors. [T]he ordinance furthers San Franciscos important and substantial interests in protecting individuals who are unwillingly or unexpectedly exposed to public nudity and preventing distractions, obstructions, and crowds that interfere with the safety and free flow of pedestrian and vehicular traffic. San Franciscos interest is unrelated to the suppression of free expression, because the ordinance regulates public nudity whether or not it is expressive. [And] the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. The ordinance prohibits only exposure of ones genitals, perineum, or anal region, during daily activities in the streets of San Francisco, which is essential to meet the Citys goals of preventing distraction and offense to citizens not expecting to be confronted with such private parts of other persons anatomy.

Plaintiffs [also requested] leave to amend [their] Complaint in order to plead additional facts relating to the expressiveness of their nude rallies and demonstrations. Because we conclude that San Franciscos public nudity ordinance is a valid regulation under the OBrien test, even if we assume that more of Plaintiffs conduct was likely to communicate a message to those who saw it, Plaintiffs complaint would not be saved through further amendment.

Recall that, despite the occasional talk of the First Amendment protecting nude dancing, the Supreme Court has held that a ban on public nudity and even one that extends into strip clubs is constitutionally permissible, see Barnes v. Glen Threatre, Inc. (1991). On the other hand, if a city does allow public nudity for some political events, then it might not be able to deny the same rights to people who want to participate in other events (see, e.g., this post); the 9th Circuit opinion did not deal with this issue.

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No First Amendment right to political public nudity even in San Francisco - Washington Post

Huffington Posts senior culture writer, Zeba Blay, blasted Vice President Mike Pence on Monday for perverting the idea of free speech itself during his recent commencement address at the University of Notre Dame. However, her own editors had to correct her faulty understanding of the First Amendment.

The original version of Blays piece apparently contained an argument that the Bill of Rights doesnt protect hate speech. The websites editors later added a correction at the end of post: An earlier version of this story indicated that the First Amendment never protects hate speech. It does.

Even with the correction from her editors, Blay still attempted to defend the speech codes, safe spaces, tone policing, [and] administration-sanctioned political correctness that the Vice President singled out for criticism during his commencement address.

The Huffington Post writer underlined that Pences pristine ideal of free speech' is too often used to dismiss legitimate criticism of language and policies that harm marginalized communities. She cited how figures like Milo Yiannopoulos, Ann Coulter, and Bill Maher have invoked the free speech argument when theyve been called out, criticized, or boycotted for their rhetoric.

Blay continued by dubiously claiming that none of them, however, have actually had their speech curtailed, and set up a straw man.

They have never been thrown in jail for things like inciting racist and sexist abuse against comedian Leslie Jones, or complaining about Jews in America, or suggesting Muslims are inherently violent. Indeed, it wasnt until Yiannopoulos started speaking positively about pedophilia that he actually faced any tangible repercussions.

Of course, individuals right to free speech can be restricted without being thrown in jail. Coulters planned speech at the publicly-funded University of California, Berkeley was cancelled because activists threatened to disrupt the event. The left-wing ACLU criticized the institution for this move, and outlined that the hecklers veto of Coulters Berkeley speech is a loss for the 1st Amendment. We must protect speech on campus, even when hateful.

The Huffington Post culture writer later emphasized that contrary to popular belief, free speech, in the context of the Constitution, actually does have limits. The First Amendment does not protect speech that incites violence, fraud, or child pornography, or certain forms of obscenity. It puts limits and restrictions on slander, and intellectual property.

Blay also asserted that safe spaces do not suppress anything they level the playing field in a landscape where so many of those who bemoan political correctness do so at the expense of already marginalized communities.

Near the end of her piece, the author lambasted appeals to free speech as ultimately just a rhetorical ploy to normalize ideas that oppress others. And complaining when those who are oppressed call out these ideas, as is their right, is another petty ploy.

Blays column isnt the first time that this sort of interpretation of the First Amendment has appeared in media circles. Back in May 2015, CNNs Chris Cuomo, who has a law degree, made an identical argument on Twitter: hate speech is excluded from protection. dont (sic) just say you love the constitutionread it.

Conservatives on the social media outlet sparred with Cuomo over his assertion. The CNN anchor even got some flak from the left, as Salon took him to task for his gaffe about the First Amendment.

[image via screengrab]

This is an opinion piece. The views expressed in this article are those of just the author.

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Huffington Post Apparently Doesn't Understand How The First Amendment Works - Mediaite

Theres a reason your cell phone isnt as inundated with telemarketing robocalls as your landline is (if you still have a landline): federal law doesnt allow itfor now. The Federal Communications Commission is considering a proposalthat would chip away at that protection by allowing organizations and companies to leave voicemail on your cell phone without ever making the phone ring. And the Republican National Committee is all for it.

Ina comment filed with the FCCon Friday, the RNC said it felt the telecom agency should clear the way for organizations including, apparently, itself to auto-dial directly to voicemail inboxes with prerecorded pitches. Failing to permit the practice, the RNC warned, could threaten the First Amendment rights of political groups.

Political organizations like the RNC use all manner of communications to discuss political and governmental issues and to solicit donations including direct-to-voicemail messages, the RNC told the FCC. The Commission should tread carefully so as not to burden constitutionally protected political speech without a compelling interest.

Its not clear why the First Amendment would be threatened by a ban on ringless voicemail spam if its not threatened by a ban on robocalling to cell phones, but maybe thats a slippery slope the Republicans are trying to set up. Shoot, maybe a year or two down the roadthe Republicans willargue that it would threaten their First Amendment rights for the FCC to prevent them from installing malware on our computers that sends constant pop-up Trump ads.

The Republican Party joins the U.S. Chamber of Commerceand, of course, every damn spam telemarketer in pushing the FCC to allow ringless voicemail. Lets hope that theengineers at cell phone companies are coming up with filtering technology to send all ringless voicemail straight to the trash.

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Republicans claim that spamming your voicemail is their First Amendment right - Daily Kos

Protesters against Turkish President Recep Tayyip Erdogan in Washington on May 16, 2017.(Photo: Shawn Thew, epa)

The contrast between despotism and liberty wason stark display last week in the nation's capital, when bodyguards of President Recep Tayyip Erdogan set upon protesters exercising free-speech rights in front of the Turkish ambassador's residence.

Video capturedimagesof the Turkish strongman emerging from a car to watch his beefy sentinels pummel and kick dissidents until the violence was quelled by baton-wieldingD.C. police. Eleven people were injured, including a police officer.

The May 16 melee, largely overshadowed by last week's bombshell newsinvolving President Trumpand the Russians, was behavior that might have passed for state-sanctioned oppression in Ankara. But this took place along Washington's Embassy Row,and demonstrators acted with the First Amendment's blessing to peaceably assemble.

Imagine the outcry if Israeli protesters gatheringoutside the King David Hotel in Jerusalem during President Trump's visit this week hadbeensuddenly attacked by members of the U.S. Secret Service.Nor was this the first time Erdogan's security team fought with demonstrators in downtown Washington. A clash broke out in front of the Brookings Institutionlast year.

Suchbrutality is sadly what Americans have come to expect from a leader who once held promise as a much needed reformer for a leadingdemocracy in the Islamic world, only to turn increasing autocratic. Last year, Erdogan barely won areferendum, marred by allegations of fraud,that substantially increased the powers of his presidency. After a coup attempt in July, he launched a widespread purge, jailing thousands of opponents, journalists and educators.

OPPOSING VIEW:

Turkish ambassador: Protesters posed a threat

When the United States and other Western nations called for restraint, Erdogan dismissed them. That's why it was so galling to see his imperiousness on display in the U.S. capital. One video of the event last week showsa henchman leaning inside Erdogan's car,as if seeking direction. The man thenturns and signals another, who plunges into the demonstrators with his fists swinging. Some protesters also threw punches.

Two Erdogan guards were detained by policebut later released;all have since left the country. An investigation continues, but diplomatic immunity would make it toughto bring Erdogan's guards to justice.

Secretary of State Rex Tillerson called the Turkish conduct "outrageous," and his department issued a condemnation, summoning Turkey's ambassador to the U.S., Serdar Kl, for a dressing down. Days later, theTurkish Foreign Ministry in Ankara playing tit for tat similarly called in the U.S. ambassador to complain of how police treated those guards.

But the White House has remainedsilent on the violence that occurred shortly after Trump heaped praised on Erdogan during a meeting between the pair.Increasingly and disturbingly, the presidenthas been drawn to strongmen who trample onhuman rights, among them Egyptian President Abdel Fattah al-Sisi, PhilippinePresident Eduardo Duterte and Russian President Vladimir Putin.

Doesn't Trump care about Erdogan's thugs beating up protesters just blocks from the White House? The president has, after all, sworn to protect and defend the Constitution and its First Amendment.

Instead, it's left to others like Sen. John McCain, R-Ariz.,to exorcise the bitter taste this episode has left. "That's not America," McCain said.No, it is not.

USA TODAY's editorial opinions are decided by itsEditorial Board, separate from the news staff. Most editorials are coupled with an opposing view a unique USA TODAY feature.

To read more editorials, go to theOpinion front pageor sign up for thedaily Opinion email newsletter.To respond to this editorial, submit a comment toletters@usatoday.com.

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Turkey henchmen kick First Amendment - USA TODAY

Buck's Racks and Ribs was cited by the Greenville County Sheriff's Office Wednesday.(Photo: Provided)

A Greenville restaurant that has opened in the location of a former strip clubhas filed a lawsuitagainst the county and the Sheriff's Office, alleging thebusiness's rights to freedom of expression are being violated, according to court documents.

In a suit filed on May 23, Greenville Bistro and Frontage Road Associates, operator and lesseeof BucksRacks & Ribs, nameGreenville County and Sheriff Will Lewis and allegethe county violated an agreement reached by prior business, Platinum Plus, in 2002 and again in 2015, after owners, Elephant, Inc., filed a suit against the county.

The parties say in the suit that entertainment provided by Greenville Bistro constitutes free expression protected by the First Amendment.

The suit statesthat while the restaurant on 805 Frontage Road,hasno affiliation to Elephant, Inc.,itdoespractice a "similar business" as the former occupant,and that the county treats the business as a sexual adult establishment. The county is attempting to prevent, "any form of entertainment or expression at the property" by issuing citations and violation notices, according to the suit.

No employee of the current establishment"appears in a state of nudity,engages in any specified sexual activities, or displays any specified anatomical areas, according to the plaintiffs.

On Wednesday, the restaurant received three citations from Greenville County deputies after deputies performing a compliance check witnessed someone exposing an unlawfulamount of flesh, said Sgt. Ryan Flood, Sheriff's Officespokesman.

It was the second time this year, the restauranthas beenissued citations by the Sheriff's Office.

The plaintiffs are seekinga jury trial and repaymentof attorney fees.

Bannister, Wyatt & Stalvey, LLC in Greenville,representing the plaintiffscould not be reached for comment. Luke Charles Lirot, out ofClearwater, Florida, is also listed as a co-counsel for the plaintiffs.

More: Once a strip club, now a restaurant

Related: Greenville County paid law firm $79K for Platinum Plus litigation

More: Platinum Plus Greenville ordered to close again

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Owners of Bucks Racks & Ribs file 1st Amendment suit against County, Sheriff's Office - Greenville News

Gov. Brian Sandoval signed into law this past week a legislatively passed bill that makes it illegal for any psychotherapist in Nevada to provide conversion therapy to anyone under the age of 18.

Senate Bill 201 defines conversion therapy as any practice or treatment that seeks to change the sexual orientation or gender identity of a person.

It states this therapy is barred regardless of the willingness of the person or his or her parent or legal guardian to authorize such therapy. The bill description justifies this usurpation of individual and parental rights by claiming the practice is ineffective and potentially harmful.

In a statement released to the press, the bills chief sponsor, state Sen. David Parks of Las Vegas, said, Banning conversion therapy makes Nevada a safer place for children who are at a higher risk of anxiety, depression, substance abuse and even suicide.

But what is therapy? These days it is not torture, electric shock or some emersion in aversion straight out of A Clockwork Orange. It is talk. You know, free speech.

But SB201 dictates that some speech is permissible while other speech is not. While it prohibits speech that might prompt a person to reconsider his or her sexual orientation or gender identity, it specifically allows support or confirmation for a person undergoing gender transition or provides acceptance, support and understanding of a person or facilitates a persons ability to cope, social support and identity exploration and development

It is a one-way street. The courts have repeatedly ruled that laws that limit speech based solely on its content violates the First Amendment.

Presumably, if a professional merely talked to a minor about the results of years of research and studies and that talk resulted in a change of attitude about sexual orientation, that would be illegal under the law. Facts matter for naught.

Drs. Paul McHugh and Lawrence Mayer of Johns Hopkins University School of Medicine have written that 80 to 95 percent of all children who express feelings of gender dysphoria abandon those feelings upon maturity and that more than 80 percent of youth claiming to experience same-sex attractions in late childhood and adolescence identified themselves as exclusively heterosexual upon becoming adults. Would telling a minor to let nature take its course violate the law?

A late amendment to the law makes a ham-fisted attempt to protect religious counselors from being punished under the law, but it is so convoluted as to be indecipherable and totally useless. It tries to tiptoe around the Free Exercise Clause of the First Amendment, but instead does a Mexican hat dance.

It states there is nothing in this bill that regulates or prohibits licensed health care professionals from engaging in expressive speech or religious counseling with such children if the licensed health care professionals: (1) are acting in their pastoral or religious capacity as members of the clergy or as religious counselors; and (2) do not hold themselves out as operating pursuant to their professional licenses when so acting in their pastoral or religious capacity.

They have to take off their professional licensee hat and put on their clerical hat.

A group called the Alliance Defending Freedom points out the Catch-22 in that.

Nevada law states that it is unlawful for any person to engage in the practice of marriage and family therapy unless the person is licensed the Alliance points out. Telling licensed professionals that they can only engage in certain speech and activities if they do so outside of the umbrella of their license exposes them to ethical and legal liability. It places them between a rock and a hard place. If they do the counseling under their license, they violate SB 201; if they do it outside the scope of their license, they violate another law.

What a tangled web lawmakers weave when they decide they know whats best for young people, and they and their parents dont.

The Latin phrase is in loco parentis, meaning in the place of a parent. The emphasis should be on the loco. Someone should challenge the constitutionality of this law in court.

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Conversion therapy ban violates First Amendment - Mesquite Local News

Washington has mistakenly joined a handful of other states in what appears to be a coordinated effort to battle the First Amendment.

A proposal to prohibit protesters from wearing masks or hoods during demonstrations is so obviously unconstitutional, its a wonder state Sen. Jim Honeyford, R-Sunnyside, thought it was a good idea.

The Legislature already decided to not even give a hearing to a related proposal from Sen. Doug Ericksen, R-Ferndale, earlier in the session. That one would have made it a crime for protesters to cause economic disruption, such as blocking railroad tracks.

The First Amendment is a powerful protection of the right to free speech and all manner of peaceful protest, masked or unmasked. But the people of Washington state already know that.

Lawmakers have much bigger problems to solve right now, such as passing a state budget and answering the Supreme Courts 2012 McCleary decision on school funding.

So why are these bills popping up in our state this year? According to the National Lawyers Guild, anti-protesting legislation is a national trend, partially tied to protests after the presidential election.

Lawmakers in at least 19 states have proposed bills that would criminalize or penalize protesting in various ways. A handful focus on tampering with infrastructure or trespassing. Missouri also proposed a mask law. Among the most alarming bills is one that would remove liability from drivers who accidentally hit and kill protesters.

Washington is used too often as a proving ground for ideas from out-of-state hyperpartisan groups from protest bills on the right to Democracy vouchers on the left, which were embraced by Seattle but rejected by statewide voters.

The mask bill would make it illegal for someone to stand on a sidewalk, road, alley or any public area with his face covered, but it grants religious and holiday exemptions.

Would the bill exempt people who wear heavy makeup because they are making a choice to alter their appearance? What if someone decides to cover her face for modesty or health reasons, but is not associated with any religion?

Just like Sen. Ericksens bill, Honeyfords bill should not get a hearing in any legislative committee. Lets cut the marionette strings and prevent coordinated attacks on the First Amendment from gaining a foothold in Washington state.

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Attacking the First Amendment with mask bill is wrong and a waste of legislators' time - The Seattle Times

In a landmark case, lawyers are claiming religious freedom to defend doctors facing charges for performing FGM on seven-year-olds in Michigan.

Two doctors in Detroit, along with one of their wives, are about to take the first religious defense of female genital mutilation to a US Federal court. The case stems from a FBI investigation into Dr. Jumana Nagarwala after the authorities received a tip that the physician was performing the procedure on young girls.

According to the original criminal complaint, the investigation revealed that Nagarwala allegedly performed FGM on two seven-year-old Jane Does, who had travelled from Minnesota with their families. When interviewed by the FBI, one girl said her parents told her she was going Detroit, along with the other child, for a "special girls' trip." After they arrived at the hotel, the girls said their parents took them to the doctor "to get the germs out" of their stomachs. One of the girls described what happened at the clinic, after she took off her pants and underwear, as a "pinch" on "the place [where] she goes pee." The other unnamed girl said that after she took off her pants and underwear she "got a shot," and then could barely walk.

Read more: Female Genital Mutilation and the Women Who Practice It

A winter glove that belonged to one of the girls was recovered at the clinic Nagarwala is said to have operated from. After obtaining a search warrant, an independent medical doctor performed an examination on one of the girls and found that "her clitoral hood has a small incision, and there is a small tear to her labia minor." It was later found that several other girls have allegedly been taken to Nagarwala for genital cutting. Charges have also been brought against the doctor who is accused of allowing Nagarwala to use his clinic, Dr. Fakhruddin Attar, and his wife, who allegedly was present during the procedures, according to the Detroit Free Press.

The publication also reports that Attar's lawyer, Mary Chartier, is planning on arguing that FGM is constitutionally protected under the First Amendment. The defendants are all a part of the Dawoodi Bohra community, which is an Indian Islamic sect. FGM is illegal in the United States, but Chartier says that the law is "unconstitutionally vague and overly broad." She also makes a distinction between FGM and the procedure that the Nagarwala allegedly performed.

"We know there is female genital mutilation. No one is saying it doesn't exist. But what we're saying is this procedure does not qualify as FGM," Chartier told the Detroit Free Press. "And even if it did, it would be exempt because it would violate their First Amendment rights. They believe that if they do not engage in this then they are not actively practicing their religion."

Nicholas Little, the legal director at the Center for Inquiry, doesn't think this argument will hold up. "It is important to note that there's no constitutional right to an exemption from a law of general applicability based on religious belief," he told Broadly. "Under the Religious Freedom Restoration Act, however, a person is entitled to an exemption if they can show that the law substantially burdens their exercise of a sincerely held belief." He adds that an exception can be denied if the government has a compelling interest to do so, which in this case would clearly be "the protection of a seven-year-old child from an abusive procedure."

"While courts have become more willing to grant religious exemptions, I find it very unlikely they will do so to permit this to be done to a child," he explained. "Initially, such exemptions were only sought and granted for self impacting actionssuch as, for example, a Native American using peyote in a religious ceremony. The Supreme Court, in Hobby Lobby, dramatically and wrongly, in my opinion, extended this, allowing a religious corporation to opt out of a law when such an opt out would cause harm to a third party, the women denied access to free contraception. However, this would be a major step further, to allow direct harm to a child."

Rana Elmir, the deputy director of the ACLU of Michigan, agrees that freedom of religion "doesn't allow any of us to ignore laws protecting people from harm," adding that "[this] question before the court is not new."

Read more: How Islamophobia Hurts Muslim Women the Most

She cautions that this case should not be exploited to fuel Islamophobia in the US. "FGM is often erroneously connected to Muslim communities, when in fact it is a cultural practice. It is practiced by a limited number of adherents of the Muslim, Christian, and Jewish faiths, as well as some animists," Elmir said. "However, in the days after these charges came to light, legislators in Michigan introduced an anti-international law bill. While this bill itself may seem innocuous, it was clear by the sponsoring legislator's remarks that the bill was intended to block Sharia law, baselessly connecting sharia to the practice of FGM."

Indeed, many women from the Dawoodi Bohra sect have spoken out against the practice and described the harm it has caused them. Within the community it is referred to as khatna and forced on girls for "religious purity." Sahiyo, an anti-FGM organization which promotes an education-based approach to end the practice, was founded by a Dawoodi Bohra woman who underwent FGM as a resource for other survivors; the organization, too, has expressed concern about the Detroit case being used to expand surveillance of Muslim Americans.

"We have the absolute right to believe whatever we want about God, faith, and religion, and we have the right to act on our beliefs. But there's a distinct line drawn when those actions hurt others," Elmir said. "At the same time, we must also reject those who seek to exploit tragedy for political gain. While legislators may be driven by a desire to protect children, measures such as the anti-international law bill, are misguided, unnecessary and only serve to hurt and divide our communities by scapegoating and discriminating against Muslims, who have widely and vocally rejected this practice."

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Doctors Argue That Female Genital Mutilation Is Protected Under First Amendment - Broadly

Now that Dr. Scott Gottlieb is safely installed as FDA Commissioner, we at DDLaw can end our moratorium on blogposts about First Amendment issues. There was no way we wanted to give his opponents any ammunition by saying nice things about Dr. Gottlieb before his confirmation.

Not so now.

Given what Dr. Gottlieb has said and is saying we doubt that the FDAs absolutist ban on truthful industry speech about off-label uses (pejoratively called promotion) will continue much longer in its current form. For instance, on the FDAs website, Dr. Gottlieb is quoted here as giving a speech saying:

The question we need to ask ourselves is this: Should a patient receive one or even two-year-old care just because the wheels of my government institution and its meticulous work may take longer to turn than the wheels of clinical science? Some people believe that patients should be treated only according to the clinical evidence included in a drugs approved indications. Yet this evidence may be two or maybe three years old, especially in a fast-changing field like cancer, where off label use of medicines provide important opportunities for patients to get access to the latest clinical practice and for doctors to tailor their patients treatment plans based on medical need and personal preferences.

Efforts to limit prescription and scientific exchange to indications only specified on a label could retard the most important advances in 21st century medicine. The development and deployment of drugs is becoming more and more closely linked to understanding of mechanism of action, which means that physicians can use drugs in more sophisticated ways that cannot all be anticipated on a label, or easily or quickly studied in prospective studies. . . . More important, medicine is becoming more personalized as tools like genomics make it possible to tailor treatments on an individual basis. Physicians will not be able to always wait for FDA to approve a new label for every one of their patients, and drug companies will not be able to conduct a trial to explore every possible contingency. In the future, personalization of care could mean that we will have much more off-label use of new medicines, guided by the latest literature, at least until our regulatory approaches are able to fully adapt to a different paradigm where treatment is highly specific to individual patients. Yet policy forces are tugging in exactly the opposite direction by placing restrictions on the exchange of some of the most pertinent information.

(Emphasis added). Defendants in cases involving off-label-use-related allegations should consider having their FDA experts review and, if appropriate, rely upon the current FDA Commissioners positions particularly to rebut contrary views offered by former FDA officials.

Dr. Gottliebs non-FDA writings show similar solicitude for scientific speech whether or not that speech originates with FDA-regulated manufacturers. In an article for the American Enterprise Institute, Dr. Gottlieb criticized FDA policies that prohibited a manufacturer with a drug undergoing supplemental FDA approval for a new use from distributing the findings or educating doctors on the new use through sponsored medical education. [A] more measured approach to the regulation of promotion would allow sharing of useful information that falls within the bounds of appropriate clinical care.

Those who pursue a rigid adherence to restrictions on the exchange of off-label information, and who fail to recognize that the sharing of scientific evidence can sometimes have important public health benefits, are guilty of pursuing a rigid standard that does not take measure of the consequences. . . . [E]stablishing the FDA label as the only determinant for acceptable scientific speech loses sight of the fact that these labels are slow to incorporate important medical results about the effectiveness of medical products. They are not the sole basis for medical practice.

In another AEI article a few years later shortly after the government lost United States v. Caronia, 703 F.3d 149 (2d Cir. 2012) Dr. Gottliebs criticism of the FDAs prohibition of truthful speech about off-label uses was even more pointed.

When this [off-label] speech is truthful, nonmisleading, and promulgated in an educational context, it is quite possible that the speech would be deemed constitutionally protected by the courts under doctrines that recognize commercial speech as being subject to First Amendment considerations.

(Footnote omitted). Basically, Dr. Gottlieb took issue with whether scientific speech concerning off-label uses could ever be considered illegal promotion:

A core principle of Americas constitutional speech protections is that the government should not establish what is orthodox, especially when it comes to politics, the arts, religion, and science. The founders recognized that these matters are by their nature iterative, and that it would be dangerous in a democratic society for the government to use its resources to pick a side in these debates. Matters that are subject to their own evolution a core feature of how new science unfolds are better addressed by adding voices to the debate, not suppressing them.

Dr. Gottlieb even urged FDA regulated manufacturers to stand up and challenge the constitutionality of off-label informational restrictions promulgated by the FDA the agency he now leads:

[T]he drug industry needs to be willing to take the prerogative to challenge the facts in some of these cases and have that day in court. When investigations turn on the sharing of truthful, nonmisleading information about widely accepted uses of drugs, in fast moving fields like cancer, there is a legitimate question about whether public health is being served by suppressing this sort of information. However, until these cases are challenged in court, there will remain ambiguity around where the appropriate lines rest, what speech is constitutionally protected commercial speech or clearly violative, and how public health is best served.

(Emphasis added). Not long after that, a company took up Dr. Gottliebs challenge, and the result was Amarin Pharma, Inc. v. FDA, 119 F. Supp.3d 196 (S.D.N.Y. 2015).

To some extent, where one stands depends upon where one sits, but Dr. Gottlieb has enough of a track record on truthful manufacturer speech about off-label uses of drugs and medical devices, and the constitutional and medical implications of suppressing it, that we are more hopeful now than we have ever been that the FDA will see reason, respect the First Amendment, trust physicians, and change its science-suppressing ways.

With that in mind, we examine the newest First Amendment precedent rejecting governmental prohibition of a manufacturers truthful speech about its product, Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228 (11th Cir. 2017). Ocheesee is a food (skim milk) case, but doesnt involve the FDA it doesnt even involve the federal government. Instead, Ocheesee is a demonstration that, when given the chance, state regulators are still equally capable of behaving just as badly towards the First Amendment as the feds, albeit on a smaller scale.

It may be that Ocheesee doesnt involve interstate commerce, see 851 F.3d at 1231 n.1, or it may be that there is something peculiar about milk regulation that we dont know, but the State of Florida (not the FDA or any other federal entity) came down on the plaintiff, described as a small dairy creamery located on its owners farm that sells all-natural dairy items, like a ton of bricks. Id. Apparently, the process of skimming the cream from whole milk depletes almost all the vitamin A naturally present in whole milk because vitamin A is fat-soluble and is thus removed with the cream. Id. Thus Florida agricultural regulations require vitamin A to be added to skim milk before it can be sold as skim milk. Id.

That was a problem for the plaintiff because, as a matter of philosophy, this business prides itself on selling only all-natural, additive-free products. Id. It therefore refuse[d] to replace the lost vitamin A in its skim milk with a vitamin A additive as Florida law required. Id. The State of Florida thus prevented the plaintiff from calling its product skim milk, even though that product contains no ingredients other than skim milk. Id. Instead (and ironically) the state sought to require the plaintiff to call its product imitation milk. Id. at 1232. Not surprisingly, the plaintiff refused and sued instead.

Readers attuned to the First Amendment no doubt see the problem already. Calling such a product skim milk is truthful. The State of Florida like the FDA with truthful off-label speech sought to suppress the plaintiffs truthful speech in a commercial context, using the public health (vitamin A is not just good for you, but essential to health) as its reason for doing so. Who wins the First Amendment right to engage in truthful commercial speech, or the states public-health-based rationale for suppressing such speech?

In Ocheesee, freedom of speech prevailed. 851 F.3d at 1233 (The sole issue on appeal is whether the States actions prohibiting . . . truthful use of the term skim milk violate the First Amendment. We hold that they do.).

First, the lay of the constitutional land. Ocheesee applied the now-venerable Central Hudson intermediate scrutiny test for constitutionality of governmental restrictions of commercial speech. 851 F.3d at 1233 (citing Central Hudson Gas & Electric Corp. v. Public Service Commn, 447 U.S. 557, 563-64 (1980)). Thus, Ocheesee did not apply the more speech protective tests enunciated in Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (heightened scrutiny) (see our discussions here, here, here, and here); and Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) (strict scrutiny) (see our discussion here). That doesnt mean that the Eleventh Circuit was unaware of these cases quite the contrary:

There is some question as to whether under the Supreme Courts decisions in Sorrell and Reed an analysis to determine if the restriction is content based or speaker focused must precede any evaluation of the regulation based on traditional commercial speech jurisprudence, and if so, whether this would alter the Central Hudson framework. In Sorrell, the Supreme Court found the restriction at issue to be content based but nevertheless cited, articulated, and applied the Central Hudson test. And in Reed, the Court arguably broadened the test for determining whether a law is content based. . . . We need not wade into these troubled waters, however, because the State cannot survive Central Hudson scrutiny, and in any event the [plaintiff] does not argue the States restriction was content based or speaker focused.

851 F.3d at 1235 n.7. Thus, the favorable First Amendment decision in Ocheesee sets a floor for the protection of truthful commercial speech in the Eleventh Circuit that parties arguing Sorrell and Reed may exceed.

Under the Central Hudson criteria, as a threshold question, the government (which always has the burden of proof) had to establish that the suppressed speech either concerned unlawful conduct or was false or inherently misleading. 851 F.3d at 1235-36. It failed because selling the plaintiffs product was not unlawful the state would have allowed its sale under the imitation description. Id. at 1237. Note the parallel to off-label speech doctors are free to engage in off-label use, and products so used may be lawfully sold. [T]he only difference between the two courses of conduct is the speech. Id.

Nor could the speech be considered false or misleading. The state could not simply define a product in whatever way it chose, and declare anything not meeting that definition misleading. The court rejected such self-evidently circular reasoning:

Such a per se rule would eviscerate Central Hudson, rendering all but the threshold question superfluous. All a state would need to do in order to regulate speech would be to redefine the pertinent language in accordance with its regulatory goals.

Id. at 1238. Again, any resemblence to the FDAs salami slicing of intended uses is entirely intentional. Consumer unfamiliarity is not synonymous with misinformation. Id. at 1239 (citation and quotation marks omitted).

Next up in Ocheesee was the three-pronged intermediate scrutiny Central Hudson test: (1) was the asserted governmental interest substantial? (2) did the regulation directly advance the that substantial governmental interest? And (3) was the restriction on speech more extensive than is necessary to serve that interest? 851 F.3d at 1235-36.

As in off-label promotion cases, the substantiality of the governments interest in combating deception and in establishing nutritional that is to say product safety and effectiveness standards was concededly substantial. Id. at 1240. Ocheesee jumped over the second prong and went right to the third, because the measure is clearly more extensive than necessary to achieve its goals. Id.

In all commercial speech cases, the preferred remedy is more disclosure, rather than less. Id. (Supreme Court citation omitted). Floridas flat ban on use of the term skim milk failed because a disclaimer would serve the same purpose in a less restrictive and more precise way. Id. [A]llowing skim milk to be called what it is and merely requiring a disclosure that it lacks vitamin A was sufficient to serve [the state] interest in preventing deception and ensuring adequate nutritional standards. Id.

The First Amendment thus prevailed where the speech is truthful without the court going even having to go to the trouble of relying on heightened (Sorrell) or strict (Reed) scrutiny, both of which would be argued in truthful off-label speech cases. Visions of shattered backboards come to mind. We dont think Dr. Gottlieb wants the FDA to end up like Bill Robinzine, so were looking for a more reasonable off-label speech policy to emerge from the FDA, before a court has to do so for the agency.

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