Commercial Speech Free Speech

News & Analysis as of

2015: A Year-End Review of Litigation Using California’s Anti-SLAPP Statute

Annually, California’s Courts of Appeal and the Ninth U.S. Circuit Court of Appeals regularly issue several dozen published opinions interpreting California’s anti-SLAPP statute, Civil Procedure Section 425.16 et seq., and...more

Ninth Circuit Opens the Door to Relaxing Decades-Old Law Restricting Supplier-Paid Advertising in Retail Establishments

In a decision released on January 7, 2016, Retail Digital Network LLC v. Jacob Appelsmith, the U. S. Court of Appeals for the Ninth Circuit overturned 29-year-old precedent set in Actmedia Inc. v. Stroh, which held that those...more

In re Simon Shiao Tam - USCA, Federal Circuit, December 22, 2015

In case with potentially far-reaching effects, including on Washington Redskins’ ongoing legal battle to maintain federal trademark registration, Federal Circuit sitting en banc strikes down federal statute that permits...more

Checklist: Does the Anti-SLAPP Statute Apply?

An anti-SLAPP motion to strike is generally available when one of the causes of action in a case is based on an act of a person in furtherance of the person’s constitutional right of petition or free speech in connection with...more

Of Slants, Skins and Signs: Another Step Closer to the Showdown

In September, we discussed In re Tam and the potential for a showdown over the constitutionality of Section 2(a) of the Lanham Act. At that time, a panel of the Federal Circuit had recently upheld the PTO’s refusal to...more

Washington Redskins Haven’t Won Yet: Why the Constitutionality of Section 2(a) is Not Yet Final

What do Washington D.C.’s NFL team, the Redskins, and Mr. Tam’s rock band, The Slants, have in common? Both have enjoyed unexpected victories recently and both have been called “disparaging” by the Patent and Trademark Office...more

First Amendment Notes: Amicus Briefs In Pacira & Application of IMS v. Sorrell

Here we discuss a couple of developments involving (actually or potentially) the application of the First Amendment to the FDA’s increasingly battered prohibition against truthful promotion of off-label use....more

Another Successful First Amendment Challenge to the Prohibition of Off-Label Promotion for FDA-Approved Drugs

The Free Speech Clause of the First Amendment prevailed in the latest challenge to the FDA's prohibition against marketing FDA-approved drugs for off-label (or non-FDA-approved) uses. Applying the Second Circuit’s...more

Newest FDA Newsletter from AGG

Once a month, AGG’s terrific FDA team publishes a newsletter updating readers on the latest regulatory news affecting food/drug companies–including those from Ireland and Northern Ireland. The August newsletter is here and...more

First Amendment Protects Truthful Off-Label Speech by Drug Manufacturers

Pharmaceutical manufacturers have likely taken note of Amarin Pharma Inc.’s recent success in a pre-enforcement legal challenge against the Food and Drug Administration (FDA or the Agency). On August 7, 2015, Amarin obtained...more

One Small Step for Amarin & One Giant Leap for Pharmaceutical Companies? - Only Time Will Tell

Friday’s ruling in Amarin Pharma, Inc. v. United States Food & Drug Administration is a monumental event. It signals the dawn of a new era for prescription drug promotion....more

Supreme Court Strikes Down Ordinance Regulating Directional Signs

In the case of Reed v. Town of Gilbert, the United States Supreme Court recently issued a significant decision regarding municipal sign regulation The Town of Gilbert regulated signage differently based on the content of the...more

A Scandalous Mark to Some, Free Speech to Others: Federal Circuit to Decide Whether Controversial Limit on Trademark Registrations...

The Federal Circuit has decided to revisit the constitutionality of Section 2(a) of the Lanham Act in the case of In re Shiao Tam, 2015 U.S. App. LEXIS 6840 (Fed. Cir. Apr. 27, 2015). Section 2(a) of the Lanham act allows the...more

NFL Films Ruling Blurs Right of Publicity

Earlier this year the Seventh Circuit stated that “there is no judicial consensus on how to resolve conflicts between intellectual-property rights and free-speech rights.” Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 514...more

Michael Jordan v. Jewel Food Stores: The Seventh Circuit Explores the Boundaries of Commercial Speech

When and how the First Amendment applies is normally a complicated question. In a case decided earlier this week, Michael Jordan v. Jewel Food Stores, Inc., No. 12-1992, the parties teamed up to present an issue on commercial...more

Second Circuit Vacates Pharmaceutical Misbranding Conviction on Free Speech Grounds

After two years of deliberation, the U.S. Second Circuit Court of Appeals has finally issued its decision in United States v. Caronia, holding that the government cannot prosecute pharmaceutical manufacturers or their...more

Free Speech and The Super Bowl

Litigation and the Super Bowl go together in modern America like litigation and, well, anything (e.g. tattoos, Bill Russell) in modern America. But since the Super Bowl is on most of our radars for the next few days,...more

Second Circuit Declares Off-Label Promotion Ban Unconstitutional: Implications for False Claims Act Defendants

On December 3, 2012, the United States Court of Appeals for the Second Circuit held that the First Amendment protects pharmaceutical companies who truthfully promote the lawful, off-label use of prescription drugs from...more

Google Search and Free Speech

On Thursday, the Federal Trade Commission announced that, after its inquiry of almost two-years, it is ending its antitrust investigation into Google. It finds that Google has not violated antitrust laws in its ordering of...more

Spirit Airlines v. U.S. Dep’t of Transportation

Brief Of Amici Curiae CATO Institute And The National Federation Of Independent Business Small Business Legal Center In Support...

It is axiomatic that the freedom of speech is vitally important to our democratic society and that being able to criticize the government is at the core of this freedom. Yet government officials are constantly inventing new...more

Second Circuit Vacates Off-Label Promotion Conviction on First Amendment Grounds in U.S. v. Caronia

On December 3, 2012, a panel of three judges on the U.S. Court of Appeals for the Second Circuit overturned the November 2009 conviction of Alfred Caronia for conspiracy to introduce a misbranded drug into interstate commerce...more

Second Circuit Rules That Certain Speech Regarding the Off-Label Use of Drugs Is Protected Under the U.S. Constitution

In a long-awaited decision, on December 3, 2012, a divided panel (2–1) of the U.S. Court of Appeals for the Second Circuit vacated the conviction of Alfred Caronia, a former pharmaceutical sales representative for Jazz...more

Second Circuit Rules that Pharma Rep's Promotion of Drug for Off-Label Use is Protected Speech

The Second Circuit's December 3, 2012 decision in United States v. Caronia, No. 09-5006-CR, could cause a sea change in the growing number of prosecutions brought by the government to prevent the off-label promotion of drugs...more

Court’s Ruling about Off-Label Drug Promotion Defies Reason

Last week a federal appeals court made a ruling that chips away at a fundamental aspect of the FDA's gatekeeping function with new drugs. The court tossed a conviction of a drug sales representative who was promoting drugs...more

Second Circuit Holds that Criminal Penalties for Pharmaceutical Sales Representative’s Off-Label Promotion Violate the First...

On December 3, 2012, the United States Court of Appeals for the Second Circuit issued an opinion that stands to transform the regulatory landscape in which pharmaceutical and medical device companies operate. In recent...more

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