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Can I just get some Flintstones vitamins?

Another victory for free speech, as the Supreme Court, in a 5-4 vote overturned a ban on advertising certain types of drugs. The government's seemingly indefensible position was that by keeping information about "compounded drugs" -- essentially, drugs custom-made for an individual customer -- from the public, that this would protect the public health. The logic, in part, was that if customers didn't know about the drugs, then customers couldn't ask about the drugs, and thus customers who didn't need the drugs wouldn't get them. But as the court held:

If the First Amendment means anything, it means that regulating speech must be a last not first resort. Yet here it seems to have been the first strategy the government thought to try.
Given that the law already restricted the sale of compounded drugs to people who needed them, it would seem difficult to argue that keeping them ignorant serves any additional useful function.

Kudos to Eugene Volokh, whose analysis of the free speech proclivities of the Justices continues to hold true. "Liberal" Justice Steven Breyer wrote the dissenting opinion, in favor of restricting speech, just as Volokh's work suggests would be likely.

This ruling, while relatively insigificant itself, is yet another strong signal that the court is unlikely to look favorably on the advertising prohibitions contained in the McCainShaysFeingoldMeehan campaign finance "reform" bill. Historically, pornography and commercial speech have been the least-protected, first amendment-wise, and yet this court has now ruled, in the space of a month's time, in favor of freedom in each of these areas. Doesn't look too good for McCain.


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This page contains a single entry from the blog posted on April 30, 2002 5:09 AM.

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