Law restricting criticism of ivermectin and hydroxychloroquine violates free speech

Law restricting criticism of ivermectin and hydroxychloroquine violates free speech

A judge has struck down a Missouri law that restricts pharmacists from disputing the effectiveness of ivermectin and hydroxychloroquine, finding it violates the First Amendment. The ruling was issued on March 22 in Stock v. Gray. The judge wrote:

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. 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.}

The lawyers who successfully brought the challenge are Adam Schulman of Hamilton Lincoln Law Institute; and Jonathan R. Whitehead, a lawyer in Lee’s Summit, Missouri.

LU Staff

LU Staff

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