The Volokh Conspiracy
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Law Restricting Pharmacist Speech About Ivermectin and Hydroxycholoroquine Likely Violates the First Amendment
A federal judge issued a preliminary injunction against the enforcement of the law.
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 statute—for example, by on her own initiative alerting a doctor or patient that the FDA has not approved either drug to treat a particular disease—may 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 claim—that 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 generally—is 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 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).
