New WLF Paper on the First Amendment as a Defense to Public Nuisance

We first learned of the Washington Legal Foundations (“WLF”) back in the 1990s, when Bexis collaborated with WLF in pursuing what was then viewed as a rather radical proposition – that the First Amendment applied to FDA and other governmental constraints on off-label promotion of FDA regulated products.  Eventually, the Supreme Court specifically held that the First Amendment protects pharmaceutical promotion.  Sorrell v. IMS Health Inc., 564 U.S. 552, 557 (2011) (“Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment.”).

So, when the WLF opines on the First Amendment and product liability litigation, we listen.

Recently, we listened, and now we heartily recommend the new WLF working paper, “Public Nuisance & the First Amendment: Free-Speech Defenses to an Expanding Tort,” written by WLF’s General Counsel, Cory Andrews.  For many of the same reasons that the First Amendment protects truthful off-label speech, it also protects against governmental “public nuisance” claims that target the speech of product manufacturers.

In the past two decades, private plaintiffs and state-and-local governments began claiming that a manufacturer creates a public nuisance not only by making or selling a lawful product (bad enough), but by speaking about it − through advertising, sales representatives, scientific communications, and even policy advocacy − in ways said to encourage harmful use or play down risk.  With billions of dollars and nationwide policy in the balance, that move puts public nuisance on a collision course with the First Amendment.

Public Nuisance & the First Amendment (at probably the first page).

With ample citations to product liability-related precedent and restatement comments, the WLF article makes the following points:

• Public nuisance claims challenging “product advertisements,” “a company’s scientific or policy advocacy,” and the “algorithmic design” of “social-media platforms” are all “inseparable from . . . speech.”
• These public nuisance claims all “recharacterize[] protected expression as conduct the law may freely abate, simply by calling it a ‘nuisance.’”
• Applicable First Amendment principles include: “the commercial-speech doctrine, the rule against compelled speech, the right to petition, the protection of editorial judgment, and the bedrock prohibition on prior restraints.”
• These broad, non-traditional public nuisance claims are “without an established and recognized standard.”
• “[P]ublic nuisance is not a roving commission to redress every social ill,” or a substitute for product-liability law, consumer-protection statutes, or [] regulatory regimes.”
• Numerous examples of public nuisance attacks on speech, with “[e]ach iteration mak[ing] the same essential claim,“ that the purported nuisance is “how the defendant spoke about − or encouraged the use of − its lawful product.”
• Supreme Court authority that governments may not use public nuisance to “abate speech.”
• The “singular remedy” of public nuisance − “an injunction abating the offending activity—becomes a prior restraint the instant the activity is speech.”
• Public nuisance claims are inherently “content”/”topic” and “speaker” based, and thus “presumptively invalid” so that “a jury verdict keyed to the content of a company’s speech is a content-based penalty by another name.”
• “Promotion-based nuisance claims” necessarily target protected speech:  “sales promotions,” “scientific or policy statements,” and “contested positions” on public issues.
• “Selectivity” – the targeting of manufacturers rather than other speakers” “is the tell.”  “What separates the defendant is not a different act but a disfavored identity.”
• “The burden . . . is direct, not incidental; imposing damages for truthful promotion is not regulating inert behavior but penalizing expression.”
• “To punish the manner of the speaking is to punish the speech.”
• Post-hoc allegations that a manufacturer’s speech “‘unreasonably’ interfered with the public welfare” is both “ad hoc balancing” and “standardless,” in violation of the First Amendment.
• “Product marketing, scientific debate, or advocacy” by commercial entities is “fully protected speech” not subject to mere “intermediate scrutiny.”
• “Calling speech a ‘product,’ a ‘marketing practice,’ or a ‘nuisance’ does not” affect its First Amendment protection.
• Public nuisance liability for mere silence makes no sense, and amounts to unconstitutional “compelled speech.”
• “A disclosure that takes sides in a genuine scientific or policy debate is not uncontroversial and thus may not be forced.”
• Another part of the First Amendment, the petitioning clause, prohibits public nuisance liability for a “defendant’s dealings with government itself.”
• A detailed discussion of statutory and judicial precedents barring or restricting public nuisance claims.
• While some speech is “commercial,” public nuisance claims “rarely stop “there,” so that the Bolger principle that full First Amendment protection applies to hybrid speech should apply.
• Four states have presciently precluded product-based public nuisance by statute.

We wholeheartedly agree with WLF that the First Amendment should be raised and pursued as a defense to just about all product-based public nuisance claims.  Defense counsel should read the entire article, and act accordingly.