The Rutherford Institute, which often finds itself arguing on behalf of individual and religious rights, has joined a case pending before the Supreme Court and is arguing this time for the free speech rights of a company.
The organization announced it has filed a friend-of-the-court brief with the Cato Institute in the case Bristol-Myers Squibb Co. v. Connors.
It is arguing in this case that the government’s attempts to impose millions of dollars in penalties on a drug maker constitute compelled speech in violation of the First Amendment.
The fight rose when the state of Hawaii demanded the company pay $800 million in fines and penalties for not including a label warning on “an unproven theory that the drug Plavix is less effective for certain ethnic groups.”
“The First Amendment’s compelled speech doctrine prohibits the government from forcing a person or group to adopt the government’s approved messages,” said constitutional attorney John W. Whitehead. “This principle—that the government cannot force people to think a certain way or voice only pre-approved views—is critical to any society that claims to value freedom and must be guarded with vigilance.”
Bristol-Meyers’ Plavix is used to cut down on the risk of second heart attacks and strokes. It was approved by the Food and Drug Administration in 1997.
But then, Rutherford reported, in the late 2000s, “it was theorized that Plavix might be less effective for persons of Asian or Pacific Island descent.”
The Institute said, “The theory was never proven and remains a matter of debate within the scientific community. However, in 2010, the FDA requested that Bristol-Myers add a warning to the drug label indicating that it could be less effective for persons of a particular genetic makeup. Although Bristol-Myers complied with the request, the warning was criticized by leading cardiologists and medical organizations as premature and unsupported by clinical data and experience, and the FDA withdrew its labeling requirement in 2016.”
The state then sued, using “private sector attorneys seeking contingency fees,” claiming the company failed to provide the warning before 2010, even though it wasn’t required.
This year, a state court ordered the $800 million in fines and penalties.
But as part of the court process, Bristol-Myers found “the state had not conducted any investigation before authorizing private counsel to sue,” so it launched a civil rights lawsuit in federal court alleging the state court action had violated its First Amendment rights by seeking to compel its speech on a matter of unproven scientific theory.”
The company now is alleging before the Supreme Court that the Hawaii state court suit was brought to serve private interests and not the law enforcement interests of the state.
In their amicus brief supporting the petition, The Rutherford Institute and Cato Institute argue that federal courts must remain open to protect fundamental rights.
The brief contends the lawyers for Hawaii demanded the violation of the company’s “First Amendment rights” in the case, “punishing them for failing to utter particular speech, on a question of scientific debate.”
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