Earlier this month, Paul Clement, a really smart guy who used to be Solicitor General of the United States, came to Philadelphia to present an overview of the Supreme Court’s last term. According to the Legal Intelligencer’s (that’s our local Philly legal newspaper) article about the event, he suggested that the Supreme Court’s “stolen valor” case, United States v. Alvarez, 132 S.Ct. 2537 (2012), would be of use to folks, like us, who are interested in First Amendment protection of truthful promotion of off-label use. According to the Legal:
Lawyers representing pharmaceutical companies in litigation over off-label marketing may want to read up on the U.S. Supreme Court’s decision in the so-called “Stolen Valor” case, former U.S. Solicitor General Paul Clement said. . . . The Stolen Valor case, United States v. Alvarez, was a “great illustration of how pro-First Amendment this court is,” Clement said. . . . “This case is useful in off-label marketing cases and fraud prosecution,” Clement said. He noted that the government has settled these types of cases for high-dollar figures and there are a number of lawsuits against pharmaceutical companies regarding off-label marketing. But Clement said the [C]ourt’s willingness to give “breathing space” to speech may benefit the drug companies.
Legal Intelligencer, “Clement, Prolific in High Court Arguments, Reviews Latest Term” (para 1-7) (July 18, 2012).
Since one could say that we’re interested in that subject, we decided to take him up on it.
There aren’t that many facts necessary to understand Alvarez − just two, actually. (1) Congress passed the “Stolen Valor” Act, 18 U.S.C. §704, making it a crime for anyone to “falsely represent[] himself or herself . . . to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” Alvarez, 132 S. Ct. at 2543. (2) The appellant falsely represented himself as having been awarded the Congressional Medal of Honor in a town hall meeting. Id. at 2542.
First impression: Alvarez is about admittedly “false” speech. Anything the Court holds concerning First Amendment protection of false speech will be a fortiori (legal Latin for “that goes double for”) where truthful off-label promotion is involved.
Now, figuring out the Court’s “holding” will be a little difficult. There’s no majority opinion. Justice Kennedy wrote the lead opinion in Alvarez joined by only three other members of the Court (Roberts, C.J., Ginsberg, and Sotomayor). There’s a concurring opinion written by Justice Breyer, joined by Justice Kagan. That makes six justices voting to hold the Stolen Valor act unconstitutional under the First Amendment.
The lead opinion starts out well. “[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” 132 S. Ct. at 2543 (we’ll only say “citations and quotation marks omitted” once, since quotations abound − consider yourself warned). That’s useful and certainly not limited to false speech. “[T]his Court has rejected as ‘startling and dangerous’ a free-floating test for First Amendment coverage based on an ad hoc balancing of relative social costs and benefits.” Id. at 2544. Ditto.
Next, the plurality listed the “long familiar” exceptions that allow “content-based restrictions” on speech: those being, incitement of “imminent lawless action”; obscenity; defamation; “speech integral to criminal conduct”; “fighting words”; child pornography; fraud; “true threats”; and “speech presenting some grave and imminent threat the government has the power to prevent.” Id.
Second impression: Notably lacking from Alvarez’s list of exceptions allowing content-based restriction is “commercial speech.” Instead, the seminal commercial speech case, Virginia Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), is listed as a “fraud” case. That’s particularly interesting because of the application in Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011), of a more robust First Amendment test than previously used in commercial speech cases. The negative implication is that commercial speech − other than “fraud” − cannot be subjected to “content-based restrictions.” That’s good for those of us who support truthful off-label promotion.
There is no “general exception” to the First Amendment allowing the government to ban “false statements” anywhere at any time. Alvarez, 132 S. Ct. at 2544. “[F]alse statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation.” Id. Even in the context of fraud (where the opinion put Virginia Board), falsity alone was not determinative:
The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. . . . Even when considering . . . fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood.
Third impression: Wow! Under this standard, the False Claims Act, particularly as it has been construed in the First Circuit, may well be unconstitutional as applied, since the “false statements”...
