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Free Speech

State Legislature Passes Bill Restricting Pharmacist Speech About Ivermectin and Hydroxycholoroquine


From a Missouri bill (HB 2149), which is apparently now heading to the Governor for approval or veto:

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.

Seems to me like 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 in NIFLA 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). Thanks to commenter IntelligentMrToad for the pointer.