Tuesday, August 21, 2012

Can the Government Require You to Lie? Sometimes

By Mike Dorf

My latest Verdict column discusses the recent en banc decision of the Eighth Circuit, which upheld a South Dakota law that requires that a woman seeking an abortion be told that suicide and suicidal ideation are a "known risk" of abortion--even though there is no evidence that abortion causes suicide (or suicidal ideation).    The court found that the warning was neither false nor misleading.  I explain in the column why this is wrong.  Here I want to ask a somewhat broader question: Is there a free speech right not to be required by the government to lie?  And I want to suggest that although the answer is yes in many circumstances, it may not always be yes.


In the Eighth Circuit en banc ruling, the court accepted that it would violate the abortion right for the government to require a doctor to provide a patient with false or misleading information about the risks of abortion.  The court inferred such a principle from the Supreme Court's abortion cases and, for reasons I explain in the column, I think that's correct.

The plaintiffs also asserted a free speech right.  The Eighth Circuit did not assess that independently, stating that to prevail on their free speech claim, the plaintiffs had to satisfy the same standard as they needed to satisfy to prevail on their abortion claim: They needed to show that the government was not requiring false or misleading statements.  And because the court found that the required disclosure was not false or misleading, it had no occasion to ponder whether there really is a freestanding First Amendment right not to be coerced by the government into making false or misleading statements.

So, is there?  In some sense, yes, of course.  After all, there is a general free speech right against compelled speech, recognized in such cases as West Virginia State Board of Education v. Barnette (upholding a right of schoolchildren not to be compelled to recite the Pledge of Allegiance) and Wooley v. Maynard (upholding a right of adults not to be punished for covering over the state motto--"Live Free or Die"--on their license plates).  A right against compelled speech includes a right against compelled false or misleading speech.

Nonetheless, there are circumstances in which people can be compelled to speak.  Banks (and their employees) can be (and are) required to disclose information about the financial products they offer; car dealers can be (and are) required to disclose information about the cars they sell; and most saliently here, doctors and pharmaceutical companies can be (and are) required to disclose information about the treatments and medicines they respectively offer.

In each of the foregoing circumstances, we imagine--or at least we hope--that the disclosures the government requires are true and non-misleading.  But suppose the compelled speech is false.  Would the compulsion therefore be unconstitutional in virtue of the fact that it is false?

We might think that, quite apart from the heightened scrutiny to which regulations of speech are ordinarily subject, a government requirement that somebody say something false lacks a rational basis and thus fails even the most minimal judicial scrutiny.  Earlier this year, the Sixth Circuit rejected a challenge by tobacco industry plaintiffs to the FDA's requirement of graphic warnings on cigarette packages and advertising.  Citing the Supreme Court's ruling in Zauderer v. Office of Disciplinary Counsel, the court held that unlike laws forbidding commercial speech, which are subject to heightened scrutiny, a law compelling speech is subject only to rational basis scrutiny--at least in the context of a facial challenge.  The court then concluded, not surprisingly, that health warnings on cigarette packages and advertisements warnings are rationally related to the government's legitimate aim of fostering public health.

But the plaintiffs in the tobacco case did not argue that the graphic warnings are false.  They argued that they cannot be made to give over so much of their own speech to the government's message.  So let us suppose a case in which the government message is demonstrably false.

Here's my hypothetical example: State A forbids medical marijuana but borders on States B, C and D, all of which permit medical marijuana.  Legislators in State A do not want citizens of A using marijuana and are worried that prohibiting it is not enough; patients seeking medical marijuana may try to buy it illegally in State A or travel to a border state to buy it legally.  So State A both forbids doctors from telling patients that they can get relief (from nausea, lack of appetite, etc) from marijuana and also mandates that, if a patient asks about marijuana, the doctor must state that it has no medical benefits.

Let's assume that the statement is false.  Is the requirement irrational?  Certainly not.  Here, the state is giving people false information in an effort to dissuade them from using marijuana--a legitimate public health objective.  After all, under ordinary principles of rational basis review, if we can imagine circumstances in which the prohibition makes sense, then the law survives.  If the state can use the criminal law to forbid marijuana use in the first place, surely it is not irrational for the government to take the lesser step of trying persuade people that they shouldn't use marijuana, even if persuasion takes the form of scare tactics.  Compelling people to lie may be immoral but it is not irrational.

However, neither Zauderer nor the Sixth Circuit tobacco case says that mere rational basis scrutiny applies to compelled false statements.  Maybe that kind of compelled statement is subject to some more intrusive scrutiny.  Intuitively, it certainly feels like a greater intrusion on the liberty of doctors (or even tobacco companies) for them to be required to disclose information that is false.

But such a principle would give rise to a dilemma of enforcement regarding the triggering condition.  Must the government know that the compelled statement is false in order for the heightened level of scrutiny to apply?  If so, then we have all of the difficulties of purpose tests.  Although the Supreme Court has not always honored the sentiment, it was after all a free speech case--United States v. O'Brien--in which  CJ Earl Warren said for the Court: "It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive."  How will a plaintiff prove that government officials knew the compelled statement to be false?  Which government officials?  In my hypothetical example, we can well imagine that many of the legislators who voted to impose the obligation to tell patients that marijuana has no medical benefits sincerely believe that to be true.

So maybe we should abandon a knowledge/purpose test and simply adopt a principle that the government either can never require people to make false statements or must satisfy heightened scrutiny if it does so.  But if the triggering condition is mere falsity (rather than purposeful or knowing falsity), we risk opening the floodgates to litigation by sellers and manufacturers of sundry products subject to disclosure regimes, each claiming that the mandated disclosure is false.  Is it sensible to channel such complaints into the courts under the aegis of the First Amendment rather than into the political or administrative realm as a pre-enactment challenge to the contested legislation or regulation?  And note that when such challenges occur in the administrative realm, government agencies get substantial deference from the courts.

It's easy to sympathize with the doctor in my hypothetical example, but finding a free speech right to resist the false statement about marijuana would mean inviting backdoor litigation by pharmaceutical companies, doctors and others who lost fair and square in the ordinary channels.  Accordingly, the least-bad solution may well be to say that in the regulatory context the First Amendment subjects requirements of false or misleading disclosures to mere rational basis scrutiny.  I'm not happy with that solution but as I've said, it's at best the least bad approach, not a good approach.

33 comments:

The Dismal Political Economist said...

I think you go too far in favoring government compelled speech. A critical part of free speech is not just the right to say something, but also the right not to be compelled to say something and not to be compelled to listen to something.

But as you point out, there are times when government compelled speech is appropriate. It seems to me to be that the test should be two part.

1. The compelled speech is accurate and truthful to a high standard.

and

2. In the absence of such speech significant harm could come to an individual or to society as a whole.

Under this standard tobacco warnings pass, abortion related speech fails.

Of course this really is about politics and imposing one's beliefs on others, not about free speech.

AF said...

Requiring demonstrably false statements seems plainly irrational and wrong. You are correct about the dangers of opening up a floodgate of First Amendment litigation. But there is a much simpler solution than allowing the government to mandate false statements. The government can simply prohibit certain truthful statements, without mandating false statements.

A good example of this is off-label marketing of pharmaceuticals. Companies are not allowed to market pharmaceuticals for off-label use, and even truthful statements that could be made in support of such uses (eg, "the drug is in clinical trials for a new indication and preliminary results show a high level of success") are prohibited. But companies are not required to make false statements about off-label uses. Rather, if a doctor asks a question that a company is not allowed to answer, the required response is simply not to answer the question. It's hard for me to imagine a context where this solution wouldn't be sufficient to further the government's legitimate goals.

Justin said...

DPE,

Your test would put way too much authority in the hands of judges to be making the kinds of legislative factfinding that courts are particularly ill-suited to do.

I'd be in favor of upholding the South Dakota law to the extent it requires them to say "government laws compel me to state that X&Y is true;" and when that speech is over, give the doctor the free speech right to say "However, according to Z and A, the government is full of s***."

I think that could equally apply to cigerette warnings. If Phillip Morris wants to advertise-subject to the restrictions they themselves have against false and misleading advertising-that they think the government statements regarding health care are s***-they should have that right.

In other words, I think a rational basis test should apply to speech that is objectively false and/or misleading, so long as the government can provide a rational basis for believing that the statement is not false and/or misleading.

This "subjective/objective" test does, I submit, have precedential basis in other areas.

Doing what the 8th Circuit did here, however, leads to a problem of contorting the definition of "misleading" - which could have broader problems outside of the realm of government-compelled speech.

Paul Scott said...

Surely, in both the real case and the Hypo, the only thing being required is that the message, true or false, be delivered.

The statue does not prohibit the follow, correct?

Doctor to patient: "State law requires me to inform you that 'suicide and suicidal ideation are a "known risk" of abortion.' As your physician, I believe this warning to have no basis in fact."

It seems to me that there should be no right against providing a government mandated statement, regardless of veracity, but that if the government required you to give the warning and to also present present that warning as if it was your belief, rather than the government's, that a problem might exist.

Justin said...
This comment has been removed by the author.
Justin said...

AF, I think that has it backwards, normatively. The government should not be in the business of prohibiting truthful speech.

Paul Scott said...

I think it is actually a mistake to put any weight on whether what is being mandated is "truthful." In many cases, if not all, there is always going to be a reasonable disagreement or at least a colorable disagreement over the truth of a statement.

Additionally, so long as the government does not require that the source of the statement be hidden nor prohibit disagreement with that statement, I really can't see the problem.

AF said...

"The government should not be in the business of prohibiting truthful speech."

So I guess you don't believe that drugs or medical devices should require FDA approval before they can be marketed?

Justin said...

AF,

http://druganddevicelaw.blogspot.com/2007/01/first-amendment-and-off-label-use.html

AF said...

Justin and Paul Scott:

Your "solution" of allowing physicians/companies/individuals to contradict the speech the government is compelling would frequently undermine the point of the regulation in question. For practical purposes, it is tantamount to saying that compelled speech is unconstitutional in many contexts where it is currently allowed.

So, for example, if you think companies should be allowed to tout the supposed benefits of off-label uses of drugs immediately after mouthing some government-mandated boiler plate about how these uses have not yet been approved by the FDA, that's equivalent to saying that bans on off-label marketing are unconstitutional.

Joe said...

http://balkin.blogspot.com/2012/07/anything-goes-compelled-physician.html

I think this discussion underlines how a higher standard should be placed in certain contexts. It also suggests the 1A, not only substantive due process, is a concern in the area of abortion scripts. Kennedy very well might be open to such an approach.

Some reasonably are concerned when certain types of abortion requirements are targeted -- seems to be micromanaging health regulations. But, in this area, physician speech with patients is selectively targeted and some higher degree of concern should be allowed. Ditto when Florida singled out gun references for special limits on doctors.

Forcing physicians to in effect not do their jobs to discourage abortions or use of marijuana (even if states where legal!) is bad enough, but lying goes a step further. Truthful speech was protected even in alcohol labeling. It surely should be protected with more than "rational basis" review in this context.

Justin said...

AF,

I don't have your FDA law expertise, but I think even if it did have that effect, the result would be better from an application standpoint than dealing with it at the compelled speech level.

Why?

Think of the prosecution for failing to provide compelled speech (under my proposed view). The government wouldn't have to prove the speech. They'd just have to prove the person didn't give the speech. And the person giving the speech *might* be able to mount a defense if *he* could prove the speech was false - maybe.

Now let's say the defendant is someone who gave but then contradicted the compelled speech. First, the harm is less, because the recipient of the speech is informed of the government's viewpoint. Second, in prosecuting the person for making a false or misleading statement, the government would have the *burden* of showing that the statement in question was false or misleading. This is a much better result for speech, in my opinion. I also think that the level of interbranch dispute is less dangerous to federal system.

AF said...

Justin: To the extent that post suggests that restrictions on a "manufacturer's direct advertising or explicit promotion of a product's off-label uses" would be unconstitutional, it is not an accurate statement of the current law. See Washington Legal Foundation v. Henney, 202 F.3d 331, 333 (D.C. Cir. 2000) (noting that this power has not been challenged).

The question remains whether you believe companies should be allowed to make any statements about medical products they want, subject only to restrictions on allegedly false or misleading statements (which latter restrictions, presumably, would have to be construed narrowly to avoid First Amendment problems).

AF said...

Justin,

I'm less concerned with the prosecution of alleged violators than with what happens when the law is followed. I have little doubt that the vast majority of companies would comply with your regime requiring them to mouth the government's disclaimers before promoting off-label uses. The fact remains that companies would have much greater ability than they have today to market off-label uses of their products, which would significantly undermine the benefits of the FDA approval process.

Paul Scott said...

AF,
My first answer to you is that I find it absurd that "doctor" and "individual" are lumped in with "companies," though I do accept that the radically right wing SCOTUS has determined, for now, that to be the case. Hopefully at some point in the future that will be reversed.

I'll suggest to you as a more complete answer that the prescription medication industry is a highly regulated industry in a way that medical practice is not. That is, apart from state licensing, there is relatively little restriction on medical practices. You may very reasonably wish to have a different set of rules apply to those scenarios.

Paul Scott said...

There is also a matter of the means of presentation. A physician presenting a warning to a patient is a very personal interaction. If not allowed to both 1. identify the source of the warning and 2. at that physician's own risk, choose to contradict the warning, there is a significant risk that the statement will appear to be that physician's speech.

The same thing just cannot be said of the pharmaceutical companies who want to, but are prohibited from, advertising off-label use of their medications.

Justin said...

AF,

Can you point me to what you're talking about? All the case appears to stand for from my reading is this:

"The relevant question before us therefore is not whether certain enforcement activities conducted under these provisions were unconstitutional (since there were no such activities alleged), but instead whether the statute and guidance document facially violate the First Amendment. Since both parties now agree that they do not, there is no constitutional controversy between the parties that remains to be resolved; we do not think it at all appropriate to rule on the constitutionality of a hypothetical interpretation of a statute,..."

Nowhere does it say that corporations may be validly prosecuted for making accurate, nonmisleading statements.

Justin said...

Paul,

I'm also wondering whether the fact that the FDA can ban outright the sale of a product is relevant. It appears to me, without further thought, that if the government can ban the outright sale of a product, there's at least an argument that it can condition the sale of a product on certain conduct that might otherwise run afoul of constitutional protection. In that case, it is not the speech that is being regulated, but the conduct.

However, since under Roe and Casey, the state can't ban the doctor's commercial activity, it cannot condition that activity either.

(I also realize the limits of this potential doctrine. Certainly, the government cannot require drug companies to abandon all their constitutional rights simply because it can ban some of it activities, for instance).

Joe said...

"However, since under Roe and Casey, the state can't ban the doctor's commercial activity, it cannot condition that activity either."

I'm not sure what "condition" means here since both cases allows various regulations ("conditions").

Casey: "when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the "probable gestational age" of the fetus" ... it is acceptable.

Earlier cases also allowed some conditions, including certain types of informed consent. See, e.g., Akron v. Akron Center for Reproductive Health.

Justin said...

Joe,

I'm using "condition" in a different way than Casey. What I mean is that they can't condition something in the sense that "since we can ban it outright, we can also allow it subject to certain conditions." I didn't mean that Roe and Casey found that abortion cannot be regulated at all - indeed, since I tend to think the Eighth Circuit decision is probably correct (if for the wrong reasons).

AF said...

Justin,

The Washington Legal Foundation case discussed in the blog post you linked to did not involve "direct advertising or explicit promotion of a product's off-label uses." Washington Legal Foundation v. Henney, 202 F.3d 331, 333 (D.C.Cir.2000). So to the extent that the blog post was relying on the Washington Legal Foundation litigation to support the idea that restrictions on direct marketing of off-label uses are unconstitutional, it is not an accurate reading of the current state of the law.

Restrictions on direct marketing of off-label uses remain in effect, have been upheld by courts, see, e.g, US v. Caronia, 576 F. Supp. 2d 385 (EDNY 2008), and, perhaps most importantly, have not been directly challenged by the major players in the pharmaceutical industry. There are certainly precedents that could be brought to bear to support such a challenge. See United States v. Caputo, 517 F.3d 935, 939 (7th Cir.2008) (upholding conviction based in part on off-label marketing but avoiding the constitutionality of the ban and stating that it was a "difficult question). But under current law, the ban is still in effect.

Joe said...

Thanks Justin.

A basic point to remember there is that Roe and Casey protects the commercial performance of abortions within a certain context -- it repeatedly is based on it being done by a physician with all the usual aspects of that practice.

So, the government can ban abortions not done by physicians (the USSC so held) so it might be the case that if a state allowed a registered nurse to perform abortions, it would condition it on such and such, since there is no constitutional right to have abortions performed by nurses.

The conditions might be unconstitutional regardless but the greater including the lesser there could exist.

Justin said...

Having thought about the "conditional" concept, I don't think it is workable. The FDA stuff can simply be attributed to the odd results deriving from Central Hudson. The Central Hudson test wouldn't work for doctors talking (truthfully) about abortion, just like I doubt it would work for doctors talking truthfully about off-label medicine.

Paul Scott said...

"... just like I doubt it would work for doctors talking truthfully about off-label medicine."

Doctors do this all the time. There is no law prohibiting this practice. You might or might not be able to get insurance for such a practice, but the practice is both not prohibited and common.

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