At least one of the that Louisiana Attorney General Liz Murrill has the CVS drugstore chain is not just wrongheaded but constitutionally dangerous. She should withdraw it, forthwith.
Murrill is particularly angry with CVS for successfully convincing the state Legislature to reject聽a bill that would have prohibited companies from owning drugstores while also owning outfits called 鈥減harmacy benefit managers.鈥 PBMs serve essentially as middlemen to negotiate drug prices from manufacturers.
I take no position on whether PBMs are more beneficial than harmful 鈥 except to note that plenty of conservative-free-market advocates are supporters of PBMs, so it鈥檚 odd to see Murrill and some other Republicans oppose them. I also take no position on whether PBMs and drugstores should be owned by the same corporation, and no position on the merits of 惭耻谤谤颈濒濒鈥檚 second and third lawsuits against CVS, which accuse the drugstore giant of 鈥渦nfair competition鈥 and (essentially) monopolistic practices.
惭耻谤谤颈濒濒鈥檚 , though, is outrageous. It seeks to punish CVS for contacting customers to express its political opposition to the legislation she favored. It says CVS 鈥渋llegitimately鈥 used customers鈥 鈥渃ontact information obtained under the guise of prescription and health notifications鈥 to send text messages that were 鈥渋naccurate, misleading, and deceptive鈥 in order to 鈥渋ncite fear among vulnerable people regarding their medical needs.鈥
Murrill should read the First Amendment to the U.S. Constitution.
In case she forgot, that amendment guarantees the right to free speech. That right, as the Supreme Court repeatedly and emphatically has reminded us, is particularly strong in protecting speech of a political nature.
Among the cases that recognized that corporate speech is included under these protections was the famous Citizens United v. FEC, which conservatives such as Murrill tend not just to support but celebrate. (I know whereof I speak: I literally was one of the three other people in the room when Citizens United President David Bossie gave the go-ahead to his lawyer to file that lawsuit.)
In of this suit and in the suit itself, Murrill explicitly notes that CVS鈥 messages were intended to 鈥渟erve its own political agenda.鈥 Well, of course: That鈥檚 the whole point of聽political speech protections.
Wondering if I were missing something, I called one of the nation鈥檚 top free-market think tanks, the Competitive Enterprise Institute, to get its expertise on business-related law. Its attorney David McFadden 鈥 who, by the way, is a Tulane Law grad who practiced his profession in New Orleans for many years 鈥 expressed surprise at the suit.
McFadden said CVS 鈥渨ill have a strong defense on the First Amendment.鈥
The key question, McFadden said, is this: 鈥淚s the [nature of 惭耻谤谤颈濒濒鈥檚] complaint content-based? Would the authorities have to examine the content of the messages?鈥
Of course it is content-based, he said. And, he added, it usually is a clear violation of First Amendment law if government authorities seek to penalize speech (unless it is defamatory or physically threatening) based on the speech鈥檚 content.
Case law says the government can limit First Amendment political speech only if the limitation is 鈥渘arrowly tailored鈥 to meet a 鈥渃ompelling鈥 state interest.
鈥淭his is not commercial speech [which enjoys slightly less constitutional protection]; it鈥檚 core political speech,鈥 McFadden said. 鈥淲hat would the state鈥檚 interest be? That the opposing side of a bill can鈥檛 be presented? That is not even a legitimate state interest, much less a 鈥榗ompelling鈥 one.鈥
And: 鈥淭here鈥檚 no exception for arguments that [the state believes] are invalid or mistaken. That鈥檚 for each citizen and the Legislature to decide.鈥
In other words, Murrill has no proper authority to decide if she thinks CVS鈥 message was 鈥渄eceptive.鈥
Even apart from the constitutional protection, Murrill would be hard-pressed to prove anything CVS said was deceptive, anyway.
The messages sent by CVS all said a version of the following: 鈥淟egislation in Louisiana threatens to close your CVS pharmacy 鈥 your medication cost may go up and your pharmacist may lose their [sic] job.鈥
As it happens, that is the standard argument, nationwide, against the sorts of legislation Murrill is pushing 鈥 not just from the PBMs, but from who do not get major funding from drugstore or pharmaceutical giants. Indeed, some of those the practice of PBMs and drugstore chains being concurrently owned is a 鈥渕arket-based response鈥 to the Obamacare law passed in 2010. And Vance Ginn, a former chief economist in the first Trump White House, agrees that the law Murrill backed likely would have forced closures of up to 100 CVS stores with 鈥2,700 jobs at stake.鈥
Let Murrill fight her other two lawsuits. But for her to push this suit against CVS鈥 text messages is, on multiple grounds, way, way out of line.
NOTE: The original version of this column misspelled Vance Ginn's name as "Vince."
