Philadelphia, PA — The Institute for Free Speech has filed an amicus brief in Bristol Myers Squibb Company v. Becerra, et al. and Janssen Pharmaceutical v. Becerra, et al., urging the U.S. Court of Appeals for the Third Circuit to strike down provisions of the “Drug Price Negotiation Program” that compel pharmaceutical companies to endorse messages mandated by the federal government.
“The government cannot compel the companies or anyone else to speak its message, let alone a false one: that they ‘agreed’ to the new ‘maximum fair price,’ and accordingly, that they have overcharged their customers for years,” explains the brief.
The program requires drug manufacturers to adopt these messages—even when those companies disagree. Failure to do so would subject the companies to staggering excise tax penalties on every domestic sale, as well as forced withdrawal of all products from Medicare and Medicaid.
The brief emphasizes that speech uttered under threat of devastating taxes or market exclusion is not “voluntary.” Rather, such a requirement is clearly still unconstitutional coercion: “Threatened economic disaster is ‘compulsion’ by any definition, and this Court should not adopt the District Court’s formalistic avoidance of that reality in disregard of the necessary functional analysis required by Supreme Court precedent and common sense.”
The brief also warns against creating a broad “commercial conduct” exception to the compelled speech doctrine that would allow the government to avoid its obligation to abide by the First Amendment. “There is a disturbing but unmistakable trend for governments to evade First Amendment guardrails by artificially re-conceptualizing a speech-focused regulation as something other than what it is,” notes the brief.
The Institute for Free Speech urges the Third Circuit to reverse the district court’s decision, arguing that this coercive, compelled-speech policy “not only infringes the companies’ First Amendment rights, but threatens to erode critical doctrinal guardrails that protect us all.”
To read the amicus brief in Bristol Myers Squibb Company v. Becerra, et al. and Janssen Pharmaceutical v. Becerra, et al., click here.
About the Institute for Free Speech
The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment.
