Sep 022015
 

This is belated notification of one of Forbes column from last month: “Free Speech 1, FDA 0“.

I discuss an update to my earlier Forbes piece on drug company Amarin’s fight to engage in free speech in the form of off-label marketing of one of its products.

Basically, Amarin wanted to give truthful medical information to doctors which would allow them to more effectively use one of their drugs in a way that was legal, but not FDA-approved. The FDA forbade Amarin from engaging in such speech, and Amarin sued the FDA.

Last week, Amarin won an important legal victory in federal court. Judge Paul Engelmayer came down firmly on the side of free speech.

For more details see the full text of, “Free Speech 1, FDA 0“.

(Earlier Forbes piece, “Drug Company Amarin Stands Up For Free Speech Against FDA“, 5/8/2015.)

May 082015
 

My latest Forbes column is now up: “Drug Company Amarin Stands Up For Free Speech Against FDA“.

Here is the opening:

Even as Americans heatedly argue the issue of free speech with respect to cartoon criticisms of Islam, the small drug company Amarin is striking a quieter blow for its free speech rights against the Food and Drug Adminstration (FDA).

The key issue is whether drug companies can tell doctors truthful information about their products that pertains to “off-label” uses (i.e., for applications not already explicitly approved by the FDA.)

Of course, drug companies should not be allowed to disseminate false or misleading information about their products.  That can and should be punished as fraud.

But both doctors and patients benefit when drug companies are allowed to publish truthful information.

Bonus infographic on the onerous FDA approval process!

 

Free Speech, Corporate Speech

 Posted by on 15 January 2015 at 11:00 am  Election, Free Speech, Islam
Jan 152015
 

On Facebook, Paul said, “It’s easy to support free speech when you agree with the speaker. The real test is whether you support free speech even when you find the speaker’s views truly offensive (Holocaust deniers, Confederate flag displays, etc.)” He linked to Wikipedia on Laws against Holocaust denial.

Paul Sherman of the Institute for Justice replied as follows, and I think it bears repeating:

I am, of course, a strong believer that even offensive speech is entitled to First Amendment protection. But at least here in America we should not be fooled into thinking that that is the biggest free speech fight. It tends to get a lot of press but, as a matter of First Amendment law, that battle has largely been won.

In just the last five years the Supreme Court has upheld the right to sell violent video games to minors, the right to stage offensive protests at funerals, the right to sell depictions of animal cruelty, and the right to lie about having received military honors. None of these were 5-4 decisions. So from a constitutional standpoint, whether to protect offensive speech is increasingly seen as an easy issue.

If you want to see close, bitterly divided opinions from the Court and widespread opposition to free speech from the media and the public, don’t look for cases involving offensive speech, look for cases where the speech is simply persuasive and effective. Tons of people who are happy to let Nazis march through a community of Holocaust survivors (where they are unlikely to persuade anyone to join the Nazi party) are also happy to prohibit corporations from running political ads (which may persuade lots of people).

As it happens, I interviewed Paul Sherman on this very topic of free speech in elections on the 9 January 2013 episode of Philosophy in Action Radio. If you’ve not yet heard it, you can listen to or download the podcast here:

For more details, check out the episode’s archive page.

Campaign Finance Trial on Friday

 Posted by on 2 October 2014 at 9:00 am  Campaign Finance, Free Speech, Law
Oct 022014
 

This Friday, the Coalition for Secular Government? will be in federal court, arguing that Colorado’s campaign finance regulations on “issue committees” violate our free speech rights. (Our case is being argued by the fine attorneys of the Center for Competitive Politics.)

Basically, I don’t want to have to do the equivalent of filing taxes every two weeks just so that Ari Armstrong and I can publish a very wonkish policy paper on abortion rights. Our policy paper isn’t like a campaign ad, yet it’s treated like one by the law… which sucks. (For details, read my December 2011 testimony to Colorado’s Secretary of State.)

If you want to see litigating for liberty in action, the trial will be held on Friday, starting at 10 am, in the federal courthouse at 901 19th Street in Denver. We’re before Judge Kane.

We have a good shot at making a dent in these unjust laws… and I’m very excited!

The Inner Workings of Censorship in China

 Posted by on 18 September 2013 at 10:00 am  China, Free Speech
Sep 182013
 

On tonight’s Philosophy in Action Radio, I’ll interview Robert Garmong on censorship in China. Earlier this week, Paul sent me this fascinating article on how Chinese censorship works: Academics Launch Fake Social Network to Get an Inside Look at Chinese Censorship. Here’s the first few paragraphs:

Nine years after Mark Zuckerberg quit Harvard to build Facebook, one of the university’s political science professors, Gary King, decided this year it was time to launch his own social media site. But King didn’t set up his Chinese social network to make money; instead, he wanted to get an insider’s view of Chinese censorship, which relies on Internet providers censoring their own sites in line with government guidelines. King won’t disclose his site’s URL, to protect people involved with his project.

Previous studies of Chinese censorship have mostly involved monitoring Chinese social sites to see which updates censors remove (see “Social Media Censorship Offers Clues to China’s Plans”). Some have relied on rare interviews with insiders willing to talk about their role in censorship. By contracting with a major Chinese provider of Web software to help run his site, King could instead inspect the available censorship tools firsthand. He could also ask the company’s representatives whatever he wanted about how those tools should be used. “When we had questions, we just called customer service,” says King. “They were being paid to help us.”

Along with some parallel experiments on established social sites, King’s dabble in Internet entrepreneurialism has shown that Chinese censorship relies more heavily than was known on automatic filtering that holds posts back for human review before they appear online. The researchers also uncovered evidence that China’s vast censorship system is underpinned by a surprisingly vibrant, capitalistic market where companies compete to offer better censorship technology and services.

Go read the whole thing. Most interestly, China is eager to use “markets” to enforce its censorship. That underscores a point that Robert Garmong will make in tonight’s interview, namely that China is a fascist country, not a communist one.

 

I’m delighted to report that my own Coalition for Secular Government was mentioned in a recent column in the Wall Street Journal: Bradley Smith: The Supreme Court and Ed Corsi’s Life of Political Crime. Here’s the relevant tidbit:

In Buckley v. Valeo (1976), and again in Federal Election Commission v. Massachusetts Citizens for Life (1986), the Supreme Court held that the regulatory requirements of operating a political action committee could not be imposed on groups that lacked the primary purpose of supporting or defeating political candidates in elections. But across the country, states are flouting that command, imposing rigid requirements on ordinary citizens who are trying to express their political opinions.

In Colorado, for example, a group of friends calling themselves the Coalition for Secular Government operate a website on which they posted a long policy paper on abortion and church-state relations. The paper concluded by urging Coloradans to vote “no” on a ballot measure. For that, the state says they must register as a political committee and report their activities, income and expenses.

The article begins with an even more egregious case than ours, and it’s well worth reading.

 

This press release from the Center for Competitive PoliticsColorado Supreme Court to Rule on Federal Judge’s Questions — is awesome, awesome news for the Coalition for Secular Government’s challenge to Colorado’s campaign finance laws.

In an order received today, the Colorado Supreme Court agreed to a US District Court judge’s request to “provide clear guidance… as to the scope and meaning” of four unclear provisions of Colorado’s campaign finance laws that are the subject of litigation under the First Amendment to the US Constitution.

The request was made by Senior Judge John L. Kane of the United States Court for the District of Colorado in connection with a case brought by the Center for Competitive Politics (CCP) on behalf of the Coalition for Secular Government (CSG). Allen Dickerson, CCP’s Legal Director, said today he is “pleased that Colorado’s highest court will provide a definitive interpretation of key provisions in Colorado’s campaign finance laws and address the important constitutional issues raised in this case.”

The lawsuit challenges whether Colorado can force small educational groups to register with the state before expressing an opinion on or publishing an analysis of a ballot question. Because of vague state laws, confusion as to what constitutes political speech and what is covered under a press exemption, and a refusal by the state to abide by a federal court order, CSG has found it nearly impossible to carry out the activities of a small non-profit group without fear of running afoul of complex Colorado campaign finance laws.

Judge Kane asked the Colorado high court for the interpretation because the “lawsuit raises First Amendment challenges to several provisions of Colorado campaign finance law that remain undefined by the Colorado Constitution, Article XXVIII’s implementing legislation, or case law from Colorado courts.”

Judge Kane certified four questions, which the Colorado Supreme Court has now agreed to answer. The questions are as follows: 1. Is the policy paper published by the Coalition for Secular Government (CSG) in 2010 “express advocacy” under Art. XXVIII, S 2(8)(a) of the Colorado Constitution?

2. If the policy paper is express advocacy, does it qualify for the press exemption found at Art. XXVIII, S 2(8)(b)?

3. Is the policy paper a “written or broadcast communication” under S 1-45- 103(12)(b)(II)(B), C.R.S.? If not, did it become a “written or broadcast communication” when it was posted to CSG’s blog or Facebook page?

4. In light of Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), what is the monetary trigger for Issue Committee status under Art. XXVIII S 2(10)(a)(II) of the Colorado Constitution?

A copy of the court order is available here. The case, over which Judge Kane presides, is Coalition for Secular Government v. Gessler, No. 12-cv-1708. The plaintiff’s brief to the Colorado Supreme Court is due December 3, 2012.

Once again, I cannot properly express my gratitude to Allen Dickerson and the rest of the staff at the Center for Competitive Politics for this legal challenge to Colorado’s campaign finance laws.

I’m not just grateful for the hope that I’ll never have to file campaign finance reports again — nor even for the hope of striking a solid blow for free speech in Colorado. I’m grateful because my participation in this case has enabled me to see that the rule of law, while not perfect, is a robust institution in America. As a result, I’ve become far more optimistic about the future over the past few months. I don’t share the post-election “Doom and Death Camps” so prevalent among advocates of free markets, for reasons that I explained in Sunday’s Radio Show. I’m glad of that, and I’m proud of that.

So if you’d like to assist in the efforts of the Center for Competitive Politics, you can donate here.

Oct 302012
 

On July 13, 2012, Rand Simberg (an adjunct scholar at the Competitive Enterprise Institute) wrote a blog post critical of Penn State University climate scientist Michael Mann and his work on global warming: “The Other Scandal In Unhappy Valley“.

Mann subsequently demanded that CEI retract the post and apologize for it.

CEI declined.  CEI general counsel Sam Kazman wrote:

Shortly after that post was published in mid-July, CEI removed two sentences that it regarded as inappropriate.  However, we view the post as a valid commentary on Michael Mann’s research…

And regardless of how one views Mann’s work, his threatened lawsuit is directly contrary to First Amendment law regarding public debate over controversial issues.  Michael Mann may believe we face a global warming threat, but his actions represent an unfounded attempt to freeze discussion of his views.

In short, we’re not retracting the piece, and we’re not apologizing for it.

In response, Mann filed a lawsuit against CEI and Rand Simberg, as well as National Review and columnist Mark Steyn (who quoted portions of Simberg’s piece).

CEI has stated they will defend their “First Amendment rights“.  They’ve also posted their legal defense of Simberg’s blog post.

CEI is accepting donations to help them on this issue and their other work.  I’ve gladly donated.

(BTW, their website notes, “CEI is a non-partisan, educational and research institute operating under Section 501(c)(3) of the Internal Revenue Code. CEI accepts no government grants or contracts, nor do we have an endowment. Contributions to our efforts are tax-deductible.”)

If you want to support CEI, you can donate here.

I’ll also be staying tuned for updates on Rand Simberg’s blog, Transterrestrial Musings, and will pass them along as appropriate.

[Crossposted from GeekPress.]

Preliminary Thoughts on Defamation

 Posted by on 16 October 2012 at 12:00 pm  Defamation, Free Speech, Justice, Law, Rights
Oct 162012
 

Last week, I was chatting with my friend Santiago about the validity of defamation laws. Just to get everyone on the same page, Wikipedia summarizes defamation as follows:

Defamation — also called calumny, vilification, traducement, slander (for transitory statements), and libel (for written, broadcast, or otherwise published words) — is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, religion, or nation a negative or inferior image.

I’m particularly interested in this topic because I have a question on it in the Philosophy in Action Queue that I’d like to answer sooner rather than later. Here’s my current thinking on the matter, and I’d be interested in people’s thoughts in response.

I can understand that a person might be deeply distraught to be harassed by people telling bald-faced lies about him, particularly when that costs him well-earned business. I can understand the desire to recover damages for those losses. However, even if a person should be able to do that, I’m doubtful that defamation should be a legally actionable tort in a free society. Why?

First, defamation laws are too often used as a weapon to silence criticism — meaning, to violate free speech rights. If a person dislikes the criticisms of others — even if those criticisms are completely justified by the facts — he can can sue (or threaten to sue) others into silence. Alas, I have personal experience with such abuses. The cost in time, money, and anxiety of defending yourself against a false claim of defamation is ginormous.

The fact that defamation lawsuits — or the threat thereof — silence speech important for living life should be deeply troubling. People should be free to speak out about their experiences with incompetent doctors, shady contractors, dishonest businesses, and the like without fear of legal reprisals. Such speech is critical to living life well, yet under defamation laws, people engage in such speech at their peril.

Second, if a person unjustly attacks your reputation, defending yourself is almost always pretty easy. You simply have to say that the person is mistaken or lying, then state the facts. (Many staunch defenders of defamation laws are unwilling to do that, I’ve found: they see themselves as above any such explanations to the unwashed masses.) You can also ask forums hosting the defamatory speech to remove it or not permit more of it. Sure, some people will believe the lies, but most people worth knowing or dealing with will not just swallow them. Reasonable people will listen to you. I know that from far too much personal experience too.

Third, notwithstanding those practical conerns, the critical question about the validity of defamation laws concerns the nature and scope of rights. To wit: Does a person have a right to a factually accurate reputation?

A person’s reputation is the sum of the judgments that others make of him: it’s “the beliefs or opinions that are generally held about someone or something.” As such, a person cannot be entitled to a certain reputation by right. A person can influence his reputation by his words and deeds, but it’s not his property because ultimately, a person’s reputation consists of judgments in the minds of others. It’s their property, in fact.

Certainly, some people believe ridiculous claims about me — yet they’re not violating my rights in doing so. They’re just jerks or chumps, but hey, that’s their right. I don’t have a right to anyone’s good opinion, even if that’s what I deserve morally. People are entitled to believe whatever they damn well please — and, I think, to say pretty much whatever they damn well please too. Yes, that speech might do me damage, but so does the speech of pastors and politicians.

Ultimately, I don’t see any basis for claims of a right to reputation. Hence, at least right now, I don’t see that defamation laws can be justified.

Thoughts?

Politics Corrupts Money

 Posted by on 12 October 2012 at 10:00 am  Campaign Finance, Election, Free Speech
Oct 122012
 

Dirty MoneyIn this blog post for The Objective Standard, Ari Armstrong explains that money doesn’t corrupt politics, as advocates of campaign finance laws claim. Instead, politics corrupts money: “Although the source of money is virtuous because it is production, money is corrupted when it is used to buy political favors.” Indeed, and such political favors can only be bought in a mixed economy in which some people’s rights may be violated for the right price.

So if you think that campaign finance laws can keep politics pure, think again… and go read the whole post!

Be sure to consider what he says about Colorado’s Amendment 65:

Amendment 65 is a futile attempt by the left to solve the problems created by leftist policies. As I argued in my debate with Gordon, the censorship of political speech that Amendment 65 advocates will not solve the problem of influence peddling; it will only make that problem worse. As I pointed out, under Amendment 65, the proposed censorship laws would themselves be crafted by the influence peddlers.

Demanding that the foxes guard the henhouse is not wise politics: it’s a power-grab by the foxes and their allies in the henhouse.

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