Free Speech

$465 Million Judgment Against Johnson & Johnson Threatens Freedom of Speech

A brief supporting the company's appeal argues that its discussion of pain treatment was constitutionally protected.

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When an Oklahoma judge ordered Johnson & Johnson last year to pay half a billion dollars as compensation for the harm caused by abuse of prescription opioids, he relied on a definition of "public nuisance" so broad that it could cover nearly any product. Worse, as the Goldwater Institute notes in a brief supporting the company's appeal to the Oklahoma Supreme Court, his theory of liability was based on statements protected by the First Amendment.

Cleveland County District Court Judge Thad Balkman—who initially ordered Johnson & Johnson to pay Oklahoma $572 million, a judgment he later reduced to $465 million—concluded that Johnson & Johnson had exaggerated the benefits of its pain medications and underplayed their dangers. Yet several of the statements he deemed misleading, including the observation that patients typically do not become addicted to these drugs and rarely die from overdoses, are actually true.

Some claims about pain medication—concerning, for example, the extent of undertreatment, the long-term benefits of opioids for people with chronic pain, and the concept of "pseudoaddiction," which describes how bona fide patients desperate for pain relief can be mistaken for nonmedical "drug seekers"—are more controversial. Yet taking positions on these issues is not tantamount to commercial fraud. "The trial court characterized legitimate scientific discourse as deceptive," the Goldwater brief says.

Balkman dismissed the notion that he was punishing Johnson & Johnson for constitutionally protected speech. "I conclude that the speech at issue here is commercial in nature and that it is therefore not protected speech under the First Amendment," he wrote. That conclusion was doubly wrong, Goldwater says.

First, "commercial speech is protected by the First Amendment." Although the Supreme Court has said the government has more leeway to regulate commercial speech than it has to regulate other kinds of speech, the restrictions still must meet the test described in the 1980 case Central Hudson Gas & Electric v. Public Service Commission of New York. When speech is not misleading and concerns lawful activity, the Court said in that case, regulations must "directly advance" a substantial government interest, and they must be narrowly tailored, meaning they are "not more extensive than necessary." Balkman's conclusion that Johnson & Johnson's statements are "not protected speech under the First Amendment" therefore relies on his judgment that they were misleading, even when demonstrably true.

Second, the Supreme Court has defined commercial speech as expression that does "no more than propose a commercial transaction." That description plainly does not apply to general statements about, say, the addictive potential of prescription opioids or the extent to which patients who could benefit from them are denied medication. In the 1983 case Bolger v. Young Drug Products, Goldwater notes, the Court held that "informational pamphlets about medicines" did not qualify as commercial speech, even though "they were created with a commercial motive and addressed one specific product."

Having concluded that the First Amendment does not apply to Johnson & Johnson's statements about opioids, Balkman used them to find the company guilty of creating a public nuisance, a concept that no one has been able to satisfactorily define. "Nobody knows what a public nuisance is," Goldwater says, citing legal scholars who have described it as "vaguely defined," "poorly understood," "all things to all people," a "wilderness," an "impenetrable jungle," a "quagmire," and "a legal garbage can."

The nebulous nature of "public nuisance" is reflected in the Oklahoma statute that Balkman applied to Johnson & Johnson, which says it "consists in unlawfully doing an act, or omitting to perform a duty, which act or omission…annoys, injures or endangers the comfort, repose, health, or safety of others" or "in any way renders other persons insecure in life, or in the use of property." The breadth of such definitions poses obvious due process problems, since businesses are not given clear notice of which actions could expose them to massive liability.

The "public nuisance" concept has been deployed, for example, against companies that legally sold lead paint, which became a hazard years later as it flaked off surfaces in homes where it was used; gun manufacturers, because they legally sold firearms that were ultimately used in crimes; and General Motors, because its vehicles contribute to global warming. "Absent objective rules limiting liability," Goldwater says, "the concept can become a catch-all rule against whatever government officials, or even individual citizens, decide is bad behavior."

Making drug manufacturers liable for selling products in compliance with federal regulations is not merely unfair to them. It is part of a broader crackdown on pain medication that has denied treatment to legitimate patients while driving nonmedical users into a black market where the drugs are much more dangerous because their potency is highly variable and unpredictable.

The latter effect was apparent in the same trends that Balkman cited to justify his ruling against Johnson & Johnson. As the government succeeded in reducing opioid prescriptions, the upward trend in opioid-related deaths not only continued but accelerated. Illicit drugs now account for the vast majority of those deaths. Balkman, who erroneously claimed that the "current stage of the Opioid Crisis…still primarily involves prescription opioids," seemed oblivious to that fact.

Balkman likewise dismissed the suffering of legitimate patients who are unable to get the medication they need to relieve their pain. That problem has been aggravated in recent years by ham-handed efforts to reduce opioid prescriptions, as the Food and Drug Administration, the Centers for Disease Control and Prevention, and the American Medical Association have recognized. But in Balkman's view, any talk about undertreatment is inherently suspect, motivated by nothing but the desire to sell more pain medication. As Goldwater notes, "the trial court concludes that defendants and others broke the law by 'suggest[ing] pain is undertreated and doctors should prescribe more opioids'—without finding that these things were factually untrue or negligently stated."

Balkman's decision quotes Terrell Phillips, a physician who said this during an October 2016 presentation to the Oklahoma State Medical Association: "Everyone here knows how we got in this situation. They told us we were underprescribing. We need to prescribe more. It's the patient's rights to have pain medicine, so we all got on board. And when someone said they were hurting, we said, 'OK, we are going to give you something.' Now it's just the opposite. Not everyone deserves pain medicine."

In Balkman's view, that quotation reinforces the case that drug companies recklessly encouraged overprescription of opioids. But by implicitly endorsing the new message that "not everyone deserves pain medicine," Balkman shows a callous disregard for the patients who suffer because other people abuse the medication on which they rely to make their lives bearable.

Similarly, Balkman treats the concept of pain as "the fifth vital sign," which was intended to address undertreatment, as nothing more than a scheme to line the pockets of companies like Johnson & Johnson. "The phrase refers to the idea that physicians should be as focused on treating pain as they are on treating a patient's difficulty with breathing, cardiac problems, etc.," Goldwater notes. "This is a legitimate and humane attitude—quite the opposite of the shockingly inhumane, even cruel, idea expressed in the words the trial court quoted approvingly: 'Not everyone deserves pain medicine.'"

Some critics argue that the "fifth vital sign" concept contributed to excessive prescribing. But that does not mean the idea, which was backed by the Joint Commission on Accreditation of Healthcare Organizations as well as the American Pain Society, the Institute of Medicine, and the U.S. Veterans Administration, was simply a mercenary scam, as Balkman implies.

Likewise with pseudoaddiction, a concept that was endorsed by the Food and Drug Administration. "Although 'the concept may have fallen out of favor,'" Goldwater's brief notes, "it has not been squarely rejected, let alone proven to be a form of deceptive marketing….There is nothing deceptive or unlawful about the scientific community proposing, discussing, studying, and even later rejecting a medical or psychological hypothesis."

Balkman's understanding of the speech that can make a company guilty of creating a public nuisance is so broad that it could encompass any participation in scientific or public policy debates by businesses with a financial interest in the outcome. If the National Shooting Sports Foundation expresses skepticism about "assault weapon" bans, for instance, that would count as commercial speech in Balkman's view and, if deemed misleading, fall outside the scope of the First Amendment. Likewise if a natural gas producer defends fracking, if a carmaker criticizes new fuel efficiency standards, if a chemical company questions claims about pesticide residues on fruit and vegetables, or if a food manufacturer presents evidence that genetically modified ingredients pose no health threat to consumers.

Based on Balkman's logic, messages like those, which heretofore have been understood as constitutionally protected, could be punished for creating a public nuisance. If so, First Amendment rights will be tossed into "a legal garbage can," along with the fair notice required by due process.

NEXT: Justice Department Prepares for First Federal Execution of a Woman Since 1953

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  1. So a judgement that is about the same cost as a single drug trial. Tells you how ridiculously expensive drug development is.

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    2. It would be a complete tragedy for Judge Balkman to get stomach cancer, and be denied pain medication. No, my mistake. I meant “justice”, not “tragedy”.

      1. It would be a similar tragedy for the executives at pharmaceutical companies who lied about drugs for profit, then mocked the addicts they supplied, to have a just god afflict them with pancreatic cancer.

        Too bad that god is an illusory confection of gullible people.

        1. Yes, those evil, evil Robber Barrons- greedily easing pain and preventing heart attacks and giving us wonder cures- and expecting to be reimbursed!
          Why I bet they even have long mustaches that they twirl as they chuckle about all the chumps who can bow sleep, work, or just generally live because they are no longer in excruciating pain. You’re an asshole.

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        3. What sort of reverent wants others to suffer? So much for forgiveness.

          1. reverend
            Please God, give Reason an edit function.

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  2. “…who initially ordered Johnson & Johnson to pay Oklahoma $572 million…”

    The money goes to Government Almighty, and NOT to these so-called “victims” or their families? These “victims” of themselves? And the money doesn’t even go to compensate the many REAL sufferers of pain, who can now no longer “access” pain pills? They are left to commit suicide for pain relief instead, and then, their families do NOT get any of this cash bonanza, either!

    Employees of Government Almighty (judges) are deciding here, how much money goes to Government Almighty!

    Does ANYONE smell ANY “conflicts of interest” going on here?

    1. I smell your shitty breath.

      1. A false allegation of halitosis is not protected speech.

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  3. “”I conclude that the speech at issue here is commercial in nature and that it is therefore not protected speech under the First Amendment,”

    Man…He might as well be a commenter on this site, given how easily he spouts an opinion as if it were obvious fact. (Nothing against the commenters, per se- just that this is Internet 101).

    How can such a person be a Supreme Court judge?

    1. How can such a person be a Supreme Court judge?

      Because he is only a District Court Judge. His decision is being appealed to the Oklahoma Supreme Court.

      Now what were you saying about commenters on this site. 🙂 lol.

    2. Well, one Supreme Court justice wrote that the 1st amendment doesn’t stop the government from abridging the right to free speech of non-citizens. And if I’m not mistaken that was wording in the majority decision. So I’ll bet they also see some penumbra that has an exception to commercial speech too.

      1. Are you constantly wrong? The 1a applies to citizens a those in the country. It does not apply to foreign nationals outside of the country. Where do you get your ignorant talking points from?

        1. More of a reading point. Read the words. Congress shall make no law…abridging the freedom of speech… There are no exceptions in that law for non-citizens’ speech or commercial speech. Congress can make no law abridging anyone’s freedom of speech.

        2. Umm, free speech rights come from the virtue of being human, no matter where they are from.

    3. S/he’s a judge, it’s hir job to decide such things. People come before you, ask questions…what are you gonna do, not decide?

  4. The government should sue itself. The “Opioid Crisis” is 100% government created.

    15 years ago, people using Opioids could do so in consultation with their doctor. Then, as MJ decriminalization motored along, police, prosecutors and nannies needed something else to spend our government’s money on. They started chasing Doctors, putting them under a cloud of suspicion if they issued too many, or too length prescriptions.

    Today, people managing their pain have been pushed into the black market, where dealers have been happy to hook them on ever more potent and dangerous drugs. Great job, gubm’t.

    1. The government would, after years of trials, appeals, amicus briefs, more trials and appeals, determine that it had sovereign immunity, and stick the taxpayers with $1T in legal fees.

    2. It’s kind of hilarious to see the calls for even more war on drugs amidst the opioid crisis (which, as you correctly point out, is largely a result of government intervention).

      But seriously, when 50 years of “war on drugs” get you to the worst opioid crisis yet, maybe more “war on drugs” isn’t exactly what is called for…

    3. The government created the heroin epidemic by cracking down on opium, which is a lot less addictive.

      The government created the crack epidemic by cracking down on cocaine, which is a lot less addictive.

      The government created the meth epidemic by cracking down on a diet pill (amphetamine), which is a lot less addictive.

      For the last 50 years, most of the federal enforcement agencies work has been creating epidemics of ever more addictive drugs. The black markets could not possibly have come up with a better business plan then the formation of the DEA.

    4. And the market incentives are to import as physically small a package of opioids as possible. Which is why most “heroin” was first fentanyl (100 times as potent as morphine) and then carfentanyl (100 times as potent as fentanyl, or *10,000* times as potent as morphine). It’s then cut by, well, rank amateurs, which means that potency is not evenly distributed among the mix.

      So people have no idea how strong their fix is going to be. And then they get a hot shot, and die. (Former EMT here, and my ex-wife is a trauma pharmacist.)

    5. I think you have the sequence of events wrong. Federal and state governments started chasing doctors and pharmacists in the 1980s over narcotics, then in the late 1990s analgesic prescribing and dispensing became freer, staying that way for almost a decade into this century.

      But really these trends have both been going on simultaneously for over a century, ebbing and flowing as either side has gotten the upper hand.

  5. Baby powder is also a killer, if you put it up your vag, so it seems. Why would anyone do that?

    1. IIRC the actual accusation in the J&J talcum powder suit was not that talcum powder itself was causing cancer, but that it was contaminated with asbestos.

      From what I’ve read, the actual evidence of widespread contamination was rather weak.

      1. As was the ‘connection’ between Roundup and cancer; twelve gullible people, and you’re in world of hurt.

    2. The talcum powder case got thrown out in court twice for lack of evidence, then the trial attorney went to the new york times to have them write an article trashing Johnson and Johnson so that nobody would rule in favor of Johnson and Johnson. Nyt even made up part like “a study funded by Johnson and Johnson found no evidence of increased cancer rates”. To which the MIT epidemiologist who did the study told the nyt that it was independent and not paid for by Johnson and Johnson. A couple weeks later nyt published a “retraction” on a way back page saying “a study cited by Johnson and Johnson”

      1. Below the fold on Pg 14 of the “Style” section, after the obits…
        Scumbags.

        1. SOP

  6. Kneecap this judge. Withhold the meds.

    Let him dance to the DEAs tune to get them.

    Problem solved…

    1. Perhaps he’ll slip and fall near a vise and end up with his hands crushed. And no pain meds.

  7. I agree with Balkman’s conclusion that Johnson & Johnson’s statements are “not protected speech under the First Amendment.” Under the law, corporations are fictitious persons. The Bill of Rights doesn’t exist to protect fictitious persons, but to protect real persons, born of woman. But that isn’t to say that all corporate speech is unprotected by law. Corporations are entirely creatures of the law and thus everything by and about them can be governed by the law. Since they are a part of our economy, at least some of their speech should be allowed. It’s just that the limits are not fully described.

    1. Under the law, corporations are fictitious persons but the reason for that fiction is that they are aggregations of natural persons. And the Bill of Rights does exist to protect those real persons both when acting individually and when acting in aggregate. Thus, yes, the Bill of Rights very clearly does apply to corporations, unions, non-profits and other fictitious persons.

      Balkman is flat wrong. I’ll go further and say that the even the claims that commercial speech are protected to a lesser degree are wrong. Speech is speech no matter who is doing it or what they are speaking about. And government cannot be trusted to decide who may and may not speak.

      1. Yeah, it’s funny, but no matter how many times I look over my copy of the Constitution, I can’t find the part where it says “unless someone is trying to make a buck”.

    2. “fictitious persons” shouldn’t have to pay taxes, then?

      1. They don’t pay taxes.

        Owners, employees, and customers pay taxes. Corporations have never paid a cent in tax in the history of the corporation.

        Owners pay those taxes in the form of lower profits.

        Employees pay those taxes in the form of lower pay.

        Customers pay those taxes in the form of higher prices.

        Tax Incidence.

    3. Corporations are collectives of real people.

      Real people speak – corporations do not. Not a single line of speech has ever been uttered by a corporation. Not one.

      To censor ‘corporate speech’ is to censor the speech of the individuals that make up the corporation.

    4. The Bill of Rights doesn’t exist to protect fictitious persons,

      The BoR doesn’t exist to protect *any* person.

      The BoR is not a list of your rights. Its merely a tiny example of what are considered the most important of them. Your rights exists before government. They don’t come from the government, the BoR, or the Constitution, they are inherent in being a person.

      And, again, collectives are made of individuals. Individuals do not lose their individual rights when they form groups.

      1. THX for the three above posts; some people seem to be confused on those issues.

      2. lol this ^ that ^^ and that ^^^

  8. Everyone deserves pain medication – even people who aren’t in pain – provided they pay market rates for it.
    The government has no business saying who gets pain or any other medication or not.

  9. 1A might protect one’s right to say something; but it doesn’t protect the “sayer” from any-consequence resulting from what was said.

    As demonstrated by the language of contracts, false advertising scheme’s, defamation, harassment, etc.. etc.. etc..

    I’m afraid using the 1A as an entitlement in this case is pretty pathetic and a corruption of it’s meaning. The real problem here is the judge couldn’t make a decent case on fraudulent lines so instead used “public nuisance” (WTF?) as a even more pathetic excuse to ‘sick the dogs’ on them.

    1. …and this is how liberal judges roll… Proven by heaps of historical judgements.

    2. Fraud isn’t protected, but you have to allege and prove actual fraud. No fraud was found, ergo, it’s protected speech.

      1. ^well said.

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