Now Some Good News: Small Victories For Free Speech And Private Property


There is a little bit of good news out there to report. Two legal cases brought small victories for free speech and private property.

The first is the Supreme Court decision on Arkansas Game & Fish Commission v. United States.

Per the Takings Clause of the Fifth Amendment (“nor shall private property be taken for public use, without just compensation”), the question was whether a series of floods coordinated by the U.S. Army Corps of Engineers qualified as an actual compensation-worthy taking, since the effects were temporary in nature (although, according to the Court’s opinion, the authorized flooding disrupted the peak growing season for timber and damaged or destroyed more than 18 million board feet of timber over seven years!). As one unit, SCOTUS affirmed that the federal government’s actions did indeed amount to a taking: (Read More)

The other is the Second Circuit decision in U.S. v. Caroni, a case against a pharmaceutical representative who committed the crime of describing a drug’s off-label use.

Sales rep Alfred Caronia probably thought he was only doing his job when in 2005 he told a doctor that a drug called Xyrem that had been approved for narcolepsy might also be effective in treating chronic pain and fatigue. But it turned out the doctor he was talking to was a government informant with a wire, and he was convicted in 2008 of selling a “misbranded” drug.

Mr. Caronia was understandably puzzled why engaging in a conversation that would attract no legal attention had it occurred between two doctors, or between a doctor and patient, or indeed anyone besides a doctor and a pharmaceutical rep, should be considered a crime.

Also puzzled was the Second Circuit. “It only furthers the public interest to ensure that decisions about the use of prescription drugs, including off-label usage, are intelligent and well-informed,” wrote Judge Denny Chin for the 2-1 majority. “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.”

While the FDA tries to make “off-label” drug use seem sinister and criminal, it is often the state of the art in medicine. A great number of cancer medications are now first-line treatments for conditions different from the one for which they were originally approved. (Read More)

In the whole scheme of things these are relatively small victories for private property and free speech, but they’re victories nonetheless.

Update: Linked by Big Pulpit – thanks!