High court appears ready to topple 2 laws that restrict speech

Wednesday, February 27, 2002

The Supreme Court yesterday heard oral arguments in two cases that challenged governmental efforts to regulate speech. And in both cases, judging by the comments and questions of the justices, the speech interest appears likely to prevail.

That would mean defeat for a law in Stratton, Ohio, that requires anyone going door to door — including Jehovah’s Witnesses — to obtain a permit beforehand from the mayor. And separately, it would also be a setback for the Food and Drug Administration, which was defending a law that keeps druggists from advertising their own pharmaceutical concoctions. Justices in both cases seemed to view both laws as too broad and too speech-restrictive to pass muster under the First Amendment.

The ordinance in Stratton, at issue in Watchtower Bible and Tract Society v. Village of Stratton, Ohio, came under heaviest fire from the court. Passed in 1998, the law appeared likely to join the list of speech restrictions successfully challenged by Jehovah’s Witnesses over the last 70 years.

Justice Anthony Kennedy called the ordinance “astounding,” Justice Antonin Scalia suggested it was the broadest anti-speech ordinance to come before the court in two centuries, and Justice Sandra Day O’Connor said it could be used against Halloween trick-or-treaters or anyone who visits a neighbor to “borrow a cup of sugar.”

The justices didn’t seem impressed by arguments by lawyers for Stratton and the state of Ohio that the ordinance was a harmless and speech-neutral regulation aimed at protecting residents from fraud, robbery and the “annoyance” of unwanted visitors.

Paul Polidoro, associate general counsel for the Jehovah’s Witnesses and a member of the faith himself, started with a dramatic flourish, knocking on the court lectern as if he were knocking on the door of a Stratton home.

But soon the justices hit Polidoro with a barrage of questions, confused about the requirements of the ordinance and which portions the Witnesses objected to. Was the requirement that permit applicants give their names the main problem? And where would the names be given — back at the mayor’s office, or would people with permits be required to give their names as they go door to door?

Polidoro cited McIntyre v. Ohio, the 1995 decision that gave anonymous speech First Amendment protection. Jehovah’s Witnesses, he said, had a “long constitutional memory” of the reprisals they could face if their identities are known. But Polidoro also said Witnesses freely identify themselves when asked by residents.

Justice Stephen Breyer asked Polidoro whether his position on anonymous speech would have implications for campaign-finance reform laws that require disclosure of the names of campaign donors. Polidoro distanced himself from that issue, attacking the Stratton ordinance more broadly as a “censorial weapon.”

Chief Justice William Rehnquist was the only member of the court who sounded sympathetic to the ordinance, recalling news reports of the slayings last year of two Dartmouth College professors. Their alleged killers apparently sought out potential robbery victims by going door to door pretending to conduct a survey, Rehnquist noted. He suggested that the government is entitled to “take that into account” in fashioning laws that protect citizens.

The justices were tougher on Stratton lawyer Abraham Cantor, who rose to defend the ordinance. Cantor said the village was acting within its police powers to protect privacy and prevent crime.

But more than once, Scalia quoted the words of the ordinance that refer to the permit as a “privilege.” His point was that under the First Amendment, the ability to communicate is a right, not a privilege.

Justices Kennedy and David Souter teamed up to ask Cantor whether a Stratton resident who merely wanted to discuss the town’s garbage pickup service with neighbors would have to obtain a permit. “That’s a cause, isn’t it?” asked Souter.

Cantor did not bolster his argument that the ordinance was content-neutral when he answered, “That’s not the type of cause” the ordinance was intended to license.

Ohio Solicitor General David Gormley fared slightly better when he defended the ordinance as a public safety measure aimed only at people who go onto private property, emphasizing that it was justified as a way of getting a minimum of information on the record in case problems crop up later. “It is a very modest restriction,” Gormley said.

But whatever success Gormley had at rehabilitating the ordinance seemed to crumble when Scalia said that the safest places on Earth were governed by totalitarian regimes.

In the separate arguments in the pharmacy case,

Thompson v. Western States Medical Center, Deputy Solicitor General Edwin Kneedler strenuously defended the law at issue.

The laws regulating medicines normally require that drugs get extensive testing and FDA approval before they can be marketed. But Congress carved out a small exception for “compounding,” a traditional practice whereby pharmacists alter medicines on their own to fit the needs of individual patients. They may eliminate an ingredient or change the dosage or form of the drug to accommodate allergies or special needs of patients.

Under that exception, pharmacists are permitted to compound drugs in limited amounts, and may even advertise the fact that they do so. But they are barred from advertising specific compounds that they make.

Kneedler said the advertising ban was “essential” to the integrity of the drug approval process. Congress intended that compounding would be done in small amounts at the behest of a physician working with a pharmacist, and not as a result of consumer demand. The prohibition on advertising specific compounds would discourage development of “a market for a particular drug,” said Kneedler.

The law was challenged as a First Amendment violation by eight pharmacies, some of which have tried to develop a national market for specific compounds. Encouraged by recent Supreme Court decisions that have strengthened First Amendment protection for commercial speech or advertising, the pharmacies said the law impinges on their right to communicate truthfully with potential customers. Two lower courts agreed.

And during yesterday’s oral arguments, most justices also appeared to agree that the law is unconstitutional. Noting all the other government restrictions on compounding drugs, O’Connor said it was “hard to understand” why those regulations “have to be accompanied by a ban on truthful advertising.”

Scalia also said the government was justified for safety reasons in regulating the practice of compounding. “But there are other ways to do it,” he said, without “placing a limit on speech. Why did the government have to do it?”

Kennedy indicated he saw some value in advertising compounds, for example to senior citizens.

Arguing on behalf of the pharmacies, Chicago lawyer Howard Hoffman said the advertising ban “denigrates the role of the pharmacist,” and is unnecessary to achieve the government’s goals. No matter where the demand for the drug originates, Hoffman said, “At the end of the day, a physician has to write the prescription.” Even those pharmacists who want to market compounds nationwide work in close consultation with individual doctors and pharmacists, unlike drug manufacturers.

Breyer, who at times seemed sympathetic toward the advertising ban, also joked that he, as a consumer, might want to read advertisements for a compound that would reverse the balding process.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

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