Law Restricting Pharmacist Speech About Ivermectin and Hydroxycholoroquine Likely Violates the First Amendment – Reason
From yesterday's opinion by Judge Greg Kays (W.D. Mo.) in Stock v. Gray:
This lawsuit arises from the State of Missouri enacting a law forbidding pharmacists from contacting a prescribing doctor or patient "to dispute the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets for human use" unless the doctor or patient asks the pharmacist about these drugs' efficacy first. Mo. Rev. Stat. 338.055.7 (2022) (emphasis added). Under the law, a pharmacist who violates the statutefor example, by on her own initiative alerting a doctor or patient that the FDA has not approved either drug to treat a particular diseasemay face disciplinary action, including the potential loss of her license. On the other hand, a pharmacist who on her own initiative contacts a doctor or patient to tout the efficacy of either drug for a purpose the FDA has not approved faces no such sanction.
Holding the law unconstitutionally restricts Plaintiff and other pharmacists' speech on the basis of their viewpoint [plaintiff's motion for a preliminary injunction] is GRANTED.
Plaintiff is likely to succeed on the merits because the second sentence of 338.055.7 infringes the free speech rights of Plaintiff and other Missouri-licensed pharmacists by threatening to impose liability based on the viewpoint of their speech. The statute prohibits pharmacists from initiating contact to express a particular view, namely, a view disputing the efficacy of the drugs. It does not prohibit pharmacists from initiating contact to tout, endorse, or acclaim the drugs, thus it is taking sides in a politically charged debate about the drugs efficacy. This is viewpoint discrimination, which is fatal to the statute's constitutionality.
Defendants' arguments that the statute does not engage in viewpoint discrimination is thoroughly unpersuasive. Defendants suggest the statute is not viewpoint discrimination because it regulates conduct, not speech. This argument is unavailing because the statute does not prohibit initiating contact with patients or doctors (a regulation of conduct). Nor does it prohibit initiating contact with patients or doctors to speak on any matter at all (a content-neutral regulation of speech). Nor does it prohibit initiating contact with patients or doctors to talk about a particular subject matter, such as any discussion of either drug (a content-based regulation of speech). Rather, the provision bans initiating contact only if the contact is to express the viewpoint that the drugs are not effective for human use. Hence, it is viewpoint discrimination.
Defendants' other claimthat the statute's ban on contacting a patient to "dispute the efficacy" of the drugs is not a ban on a viewpoint doubting effectiveness, but rather a ban on pharmacists engaging in arguments about the effectiveness of these drugs generallyis even less persuasive. Defendants argue "[d]isputing the efficacy of these drugs can involve either promoting or discouraging use of these drugs." Thus, according to Defendants, "the statute says pharmacists cannot initiate an argument with patients and physicians."
As a threshold matter, this argument defies common sense. A pharmacist calls a patient or prescribing doctor to alert them to a potential problem with a prescription. For example, a pharmacist may call the prescribing doctor to alert him that a widely used drug is no longer recommended because of new information about side effects, or he may call a patient to warn about a potential drug interaction. A pharmacist does not call to applaud a doctor for prescribing a drug or congratulate a patient for taking one. This being the case, Defendants' claim that the legislature has enacted a law barring a pharmacist from calling a doctor or patient to tout a drug is hard to swallow.
More importantly, Defendants' argument is inconsistent with the plain meaning of the statute. The relevant part of the statute at issue here reads: "A pharmacist shall not contact the prescribing physician or the patient to dispute the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets for human use unless the physician or patient inquires of the pharmacist about the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets." The plain and ordinary meaning of this sentence is that a pharmacist cannot initiate contact with a doctor or patient to tell them that ivermectin or hydroxychloroquine does not work in humans unless the doctor or patient first asks the pharmacist whether it works. This interpretation is confirmed by a common definition of "dispute," which is "to question the truth or validity of; doubt." It also dovetails with the purpose of the prior sentence (which the legislature enacted at the same time) which prohibits the Board from taking any action against a pharmacist who dispenses ivermectin or hydroxychloroquine. Finally, this reading is consistent with the legislature's apparent purpose in enacting 338.055.7 as a whole: to insulate ivermectin or hydroxychloroquine from criticism.
Thus, the Court concludes "to dispute the efficacy" means to question the validity of, or doubt, the drugs' effectiveness. And because the statute only prohibits criticizing the efficacy of the drugs, it engages in viewpoint restriction.
Since the statute engages in viewpoint discrimination, that is the end of the matter.6 Iancu v. Brunetti (2019) (holding the Lanham Act's bar on the registration of "immoral" or "scandalous" trademarks discriminates on the basis of viewpoint and so violates the First Amendment, noting "[t]he Court's finding of viewpoint bias end[s] the matter."). "The government may not discriminate against speech based on the ideas or opinions it conveys." "Discrimination against speech because of its message is presumed to be unconstitutional." Rosenberger v. Rector & Visitors of Univ. of Va. (1995). Government restrictions "based on viewpoint are prohibited." Minn. Voters All. v. Mansky (2018). {The Court recognizes both parties have raised additional First Amendment arguments, but the Court need not consider them because its holding that the statute engages in viewpoint discrimination is dispositive.}
Congratulations to Adam E. Schulman (Hamilton Lincoln Law Institute) and local counsel Jonathan R. Whitehead, who represent plaintiff. Here's what I wrote about the law when it was enacted; this seems to me consistent with the court's opinion, though the court came to the result through a different path:
Seems to me like [the law is] an unconstitutional speech restriction. To be sure, the government may restrict professional-client speech in some situations where it can't restrict it in other contexts. (Consider the fact that some speaking professions, such as psychotherapy, may require a license in the first place, or that giving negligent professional opinions or predictions to a client may be malpractice even if a newspaper columnist or blogger can't be sued for such speech.) Nonetheless, courts have recognized that professional-client speech is indeed entitled to considerable constitutional protection, see, e.g., Wollschlaeger v. Governor(11th Cir. 2017) (en banc). To quote the Supreme Court's opinion inNIFLA v. Becerra (2018),
The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals' speech "pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information."
Take medicine, for example. "Doctors help patients make deeply personal decisions, and their candor is crucial." Throughout history, governments have "manipulat[ed] the content of doctor-patient discourse" to increase state power and suppress minorities:
"For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients. In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the 'health of the Volk' than to the health of individual patients. Recently, Nicolae Ceausescu's strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS." [Paula] Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B.U.L. Rev. 201 (1994).
Further, when the government polices the content of professional speech, it can fail to "'preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.'" Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform. "[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market," and the people lose when the government is the one deciding which ideas should prevail.
Seems to me to fully apply to the ban on pharmacist speech here. A state legislature may of course ban pharmacists' from refusing to dispense prescribed drugs. But it may not ban pharmacists from merely speaking about such drugs by disputing their efficacy (at least unless the ban is limited to opinions that would qualify as incompetent medical advice, and nothing in the statute so limits the ban).
Read the original here:
Law Restricting Pharmacist Speech About Ivermectin and Hydroxycholoroquine Likely Violates the First Amendment - Reason
- How Tempe debate over feeding homeless at parks is becoming a First Amendment conversation - KJZZ - July 10th, 2025 [July 10th, 2025]
- IRS: Pastors and Politicians Dont Lose First Amendment Rights in Pulpit - Focus on the Family - July 10th, 2025 [July 10th, 2025]
- Trump admin waffles in court on whether pro-Palestinian foreigners have full First Amendment rights - Politico - July 8th, 2025 [July 8th, 2025]
- Airlines deportation deal with ICE sparks protests and boycott campaign, leading to First Amendment battle - The Free Speech Project - July 8th, 2025 [July 8th, 2025]
- Trump Judges Find No First Amendment Problem With Florida Forcing Teachers to Misgender Themselves - Balls and Strikes - July 8th, 2025 [July 8th, 2025]
- High Court To Hear Street Preacher's First Amendment Case - Law360 - July 6th, 2025 [July 6th, 2025]
- The Columbus Connection First Amendment, Independence Day Thoughts, and Happy Birthday CCN - Columbus County News - July 6th, 2025 [July 6th, 2025]
- Paramounts Trump Lawsuit Settlement: Curtain Call for the First Amendment? (Guest Column) - IMDb - July 6th, 2025 [July 6th, 2025]
- Fourth of July is a reminder to understand your First Amendment rights - The News Journal - July 4th, 2025 [July 4th, 2025]
- Big Tech Can't Hide Behind the First Amendment Anymore | Opinion - Newsweek - July 4th, 2025 [July 4th, 2025]
- FIRE amicus brief: First Amendment bars using schoolkid standards to silence parents' speech - FIRE | Foundation for Individual Rights and Expression - July 4th, 2025 [July 4th, 2025]
- The First Amendment Protects CNN's Reporting on ICEBlock and Iran - Reason Magazine - July 4th, 2025 [July 4th, 2025]
- MCPS to pay $125K to two county residents who sued over alleged First Amendment violations - Bethesda Magazine - July 4th, 2025 [July 4th, 2025]
- Commentary: Winter Garden arrest threat violated First Amendment rights - Orlando Sentinel - July 4th, 2025 [July 4th, 2025]
- First Amendment Expert Responds To BHUSD Policy - Hoover Institution - July 4th, 2025 [July 4th, 2025]
- Donald Trump: the surprise force who saved the First Amendment - Washington Times - July 4th, 2025 [July 4th, 2025]
- Paramount Will Pay $16 Million in Settlement With Trump Over 60 Minutes Interview - First Amendment Watch - July 4th, 2025 [July 4th, 2025]
- Trump Judges Reject First Amendment Challenge and Uphold Florida Law Requiring Teachers to Use Only Pronouns that Align with their Gender at Birth -... - July 4th, 2025 [July 4th, 2025]
- Justice Thomas sounds alarm on courts misapplying First Amendment in political speech cases - Courthouse News - July 2nd, 2025 [July 2nd, 2025]
- 'The full rigor of the Court's resources': Judge warns Trump against witness 'retribution' in First Amendment case over threatened deportations - Law... - July 2nd, 2025 [July 2nd, 2025]
- Federal Appellate Court Finds that School Board President Violated First Amendment in Restricting Followers on Social Media - JD Supra - July 2nd, 2025 [July 2nd, 2025]
- Protecting Kids Shouldnt Mean Weakening the First Amendment - Public Knowledge - July 2nd, 2025 [July 2nd, 2025]
- Opinion - Jesse Green: Congress must not violate First Amendment in fight against anti-semitism - Northern Kentucky Tribune - June 29th, 2025 [June 29th, 2025]
- VICTORY: New York high school to strengthen First Amendment protections following FIRE lawsuit - FIRE | Foundation for Individual Rights and... - June 28th, 2025 [June 28th, 2025]
- FCCs First Amendment Tour Arrives in Kentucky - The Daily Yonder - June 28th, 2025 [June 28th, 2025]
- ACLU of Pennsylvania Applauds Passage of Legislation to Expand First Amendment Protections in the Commonwealth - ACLU of Pennsylvania - June 28th, 2025 [June 28th, 2025]
- FIRE to court: AI speech is still speech and the First Amendment still applies - FIRE | Foundation for Individual Rights and Expression - June 28th, 2025 [June 28th, 2025]
- Podcast: Broadcast Journalism, First Amendment, and the Future - Wisconsin Broadcasters Association - June 28th, 2025 [June 28th, 2025]
- Advertising Companies Cave to the FTC. Media Matters Sues To Defend the First Amendment. - Reason Magazine - June 28th, 2025 [June 28th, 2025]
- Punishing Universities for Their Viewpoints Violates the First Amendment - Cato Institute - June 28th, 2025 [June 28th, 2025]
- Palestinian Student Sues Michigan School Over Teachers Reaction to Her Refusal To Stand for Pledge - First Amendment Watch - June 28th, 2025 [June 28th, 2025]
- CDT and EFF Urge Court to Carefully Consider Users First Amendment Rights in Garcia v. Character Technologies, Inc. - - Center for Democracy and... - June 24th, 2025 [June 24th, 2025]
- University of Oregon ordered to cover legal fees after settling First Amendment lawsuit - Campus Reform - June 24th, 2025 [June 24th, 2025]
- City attorney cites First Amendment rights in allowing rally; Third Street to open soon - Northern Wyoming News - June 20th, 2025 [June 20th, 2025]
- Guest column: 1,000 gathered in Oak Ridge to defend First Amendment - Oak Ridger - June 20th, 2025 [June 20th, 2025]
- Fighting Antisemitism Should Not Come at the Expense of the First Amendment - Reason Magazine - June 18th, 2025 [June 18th, 2025]
- How Hawley, Marshall choose Trump over the First Amendment | Opinion - Kansas City Star - June 18th, 2025 [June 18th, 2025]
- FARRAND: Saturday was a day we exercised three of our First Amendment rights - thenewsherald.com - June 18th, 2025 [June 18th, 2025]
- The State of the First Amendment in the University of North Carolina System - FIRE | Foundation for Individual Rights and Expression - June 18th, 2025 [June 18th, 2025]
- The First Amendment is Again in Colorados Crosshairs - The Federalist Society - June 18th, 2025 [June 18th, 2025]
- The Military Parade and Protections of the First Amendment - Just Security - June 18th, 2025 [June 18th, 2025]
- Court ruling clarifies limits of NCs First Amendment protection - Carolina Journal - June 18th, 2025 [June 18th, 2025]
- Letter to the Editor - Campbell County Democrats Cherish First Amendment Rights - The Mountain Press - June 18th, 2025 [June 18th, 2025]
- Editorial: Lets remember the peaceably part of First Amendment - Everett Herald - June 18th, 2025 [June 18th, 2025]
- PETA Sues NIH, NIMH in Groundbreaking First Amendment Lawsuit - People for the Ethical Treatment of Animals (PETA) - June 18th, 2025 [June 18th, 2025]
- First Amendment expert explains the right to protest amid 'No Kings' movement - CBS News - June 18th, 2025 [June 18th, 2025]
- ACLU of Nevada shares guidelines for protesters to safeguard their First Amendment rights - KSNV - June 18th, 2025 [June 18th, 2025]
- Las Vegas ICE protests: First Amendment right or breaking the law? - KLAS 8 News Now - June 18th, 2025 [June 18th, 2025]
- Rights afforded to protestors by the First Amendment, and what it does not give you the right to do - Action News Now - June 18th, 2025 [June 18th, 2025]
- What can and can't you do with your First Amendment right of free speech? - KMPH - June 18th, 2025 [June 18th, 2025]
- The First Amendment Is the backbone of democracy - Herald-Banner - June 18th, 2025 [June 18th, 2025]
- First Amendment thoughts ahead of weekend protests | Whales Tales - Auburn Reporter - June 18th, 2025 [June 18th, 2025]
- Mass. AFL-CIO president says Trump administration is 'ripping up' the First Amendment - WBUR - June 10th, 2025 [June 10th, 2025]
- No First Amendment Violation in Excluding Associated Press from "the Room Where It Happens" - Reason Magazine - June 10th, 2025 [June 10th, 2025]
- Contra the Trump FTC, Boycotts Are Protected by the First Amendment - RealClearMarkets - June 10th, 2025 [June 10th, 2025]
- Letter to the editor: Thanks to EPD for respecting my First Amendment rights on Palestine and Israel - Evanston RoundTable - June 10th, 2025 [June 10th, 2025]
- Texas Harassment Conviction for Sending 34 Messages Over 15 Weeks to Ex-Therapist Violates First Amendment - Reason Magazine - June 10th, 2025 [June 10th, 2025]
- Opinion | This Trump Executive Order Is Bad for Human Rights and the First Amendment - The New York Times - June 10th, 2025 [June 10th, 2025]
- Contra the FTC, Boycotts Protected by First Amendment - RealClearMarkets - June 10th, 2025 [June 10th, 2025]
- PBS sues Trump administration over funding cuts, alleging they violate First Amendment - CBS News - June 1st, 2025 [June 1st, 2025]
- British Attacks on Free Speech Prove the Value of the First Amendment - Reason Magazine - June 1st, 2025 [June 1st, 2025]
- Students Protesting the Genocide in Gaza Are Losing Their First Amendment Rights - splinter.com - June 1st, 2025 [June 1st, 2025]
- PBS sues Trump administration, says executive order cutting federal funding violates First Amendment - Fox News - June 1st, 2025 [June 1st, 2025]
- PBS sues Trump over funding cuts to public media and alleges First Amendment violation - Business Insider - June 1st, 2025 [June 1st, 2025]
- Trump Lawyers Claim 60 Minutes Harris Interview Caused Him Mental Anguish, Argue That the First Amendment Is No Shield to News Distortion in Motion to... - June 1st, 2025 [June 1st, 2025]
- Trumps executive orders: Due process, breathtaking sweeps, and the evils of intentional vagueness First Amendment News 472 - FIRE | Foundation for... - June 1st, 2025 [June 1st, 2025]
- Free speech is the rule: Alito wants more First Amendment protections for students after middle schooler is punished for wearing There Are Only Two... - June 1st, 2025 [June 1st, 2025]
- Judge Denies Artificial Intelligence Chatbot First Amendment Protections in Lawsuit - FindLaw - June 1st, 2025 [June 1st, 2025]
- NPR sues over Trump order cutting off its funding, citing First Amendment - Duncan Banner - June 1st, 2025 [June 1st, 2025]
- South Bend Stops YouTubers Bid to Revive First Amendment Claim - Bloomberg Law News - May 17th, 2025 [May 17th, 2025]
- Trump Administration Likely Violated American Bar Association's First Amendment Rights - Reason Magazine - May 15th, 2025 [May 15th, 2025]
- Perkins Coie Litigation Team Secures First Amendment Federal Court Win for DEF CON - Perkins Coie - May 15th, 2025 [May 15th, 2025]
- How swiftly power can be weaponized against dissenting voicesincluding the free and open press as protected by the First Amendment - Northeast Valley... - May 15th, 2025 [May 15th, 2025]
- NYUs First Amendment Watch Launches Trump 2.0: Executive Power and the First Amendment - NYU - May 10th, 2025 [May 10th, 2025]
- CCIA Files Amicus Brief Defending the First Amendment Rights of Email Service Providers - CCIA - May 10th, 2025 [May 10th, 2025]
- Zick on executive orders and official orthodoxies First Amendment News 469 - FIRE | Foundation for Individual Rights and Expression - May 10th, 2025 [May 10th, 2025]
- Why Journalists Must Band Together to Defend the First Amendment - PEN America - May 10th, 2025 [May 10th, 2025]
- Youngkin vetoes Confederate tax break roll back, but First Amendment scholar says that might be best - WHRO - May 10th, 2025 [May 10th, 2025]
- Baxter County facing $102,757 payment after losing eight-year First Amendment lawsuit - Mountain Home Observer - May 10th, 2025 [May 10th, 2025]
- DOJ to investigate this new Washington law for first amendment violations - KGW - May 10th, 2025 [May 10th, 2025]