whistleblowers

Obama Slaps Unconstitutional Gag Order on Critic of His Health Care Plan

by Hans Bader on September 25, 2009

in Bailout Watch, Healthcare, International, Labor, Legal, Nanny State, Odds & Ends, Personal Liberty, Politics as Usual, Regulation, Sanctimony

While Obama ally ACORN attempts to gag whistleblowers who exposed its role in a recent scandal, the Obama administration is trying to gag critics of its health-care plan, which the Congressional Budget Office says could wipe out many Medicare Advantage programs relied on by the elderly.  (“The Obama Administration wants to seriously curtail or end Medicare Advantage.”)

It has issued a gag order to Humana, a health insurer that provides Medicare Advantage services, ordering it not to tell customers about how Obamacare could reduce the availability of such services.  The gag order clearly violates the First Amendment, according to law professor Eugene Volokh, the author of a leading treatise on First Amendment law, and a former law clerk to Supreme Court Justice Sandra Day O’Connor.  The gag order has also been criticized by the Wall Street Journal, the San Francisco Examiner, and Senate Minority Leader Mitch McConnell, yet the administration obstinately insists on enforcing it.

The Supreme Court has said the First Amendment protects the free speech rights of businesses like Humana even when they are government contractors, in cases like Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996).

Liberal Obama supporters hypocritically claim Humana should shut up because it’s receiving federal funds (an argument they would never make regarding artists funded by the National Endowment for the Arts), and because its claims are supposedly false (never mind that its truthful claims are echoed by the non-partisan Congressional Budget Office, which is headed by Democrat Douglas Elmendorf).

But as Professor Volokh and the Washington Supreme Court have recently noted, “false statements of fact about the government are generally protected” by the First Amendment.

Humana’s statements are predictions about the future, and thus by definition not provably false.   Moreover, they are chillingly accurate predictions, which is why Obama ally Senator Max Baucus (D-Mont.), who is drafting Obama’s health-care plan, asked Obama to ban them:

“On Tuesday, the Congressional Budget Office director told Mr. Baucus’s committee that its plan to cut $123 billion from Medicare Advantage—the program that gives almost one-fourth of seniors private health-insurance options—will result in lower benefits and some 2.7 million people losing this coverage. Imagine that. Last week Mr. Baucus ordered Medicare regulators to investigate and likely punish Humana Inc. for trying to educate enrollees in its Advantage plans about precisely this fact.”

The fact that Humana is a government contractor doesn’t make this censorship any more acceptable, since the government simply has no business policing criticism of itself as “false”:  federal courts have ruled that even false speech by government contractors and employees on matters of public concern can be protected, as cases like Johnson v. Multnomah County, 48 F.3d 420 (9th Cir. 1995) show.

Nor is there any evidence that Humana is using federal money to disseminate its message.  And any subsidies Humana might be receiving would not justify the Obama administration’s blatant viewpoint discrimination against it, since Obama allies that receive lots of federal subsidies are being allowed to trumpet their support for Obamacare freely.  Under the Supreme Court’s ruling in Rosenberger v. Rector of the University of Virginia, viewpoint discrimination is a forbidden, “egregious” form of discrimination even when the government is subsidizing a speaker; here, the federal government is plainly engaging in viewpoint discrimination, since it is letting AARP make blatantly false claims in favor of Obamacare that contradict CBO finds and basic budget math, while blocking Humana from criticizing Obamacare based on reasonable arguments echoed by the Congressional Budget Office).

The Obama administration’s position contradicts the position of the Clinton administration, which admitted that Medicare contractors have free speech rights.  (But then, Obama is well to the left of Bill Clinton and past presidents).

Obama’s health care plan would raise taxes, break promises, harm people with insurance, explode the budget deficit, destroy many inexpensive health-care plans, and take away important freedoms.

Obama earlier showed contempt for the Constitution and the rule of law by radically expanding Bush’s  auto bailout, violating federal bankruptcy laws and the TARP statute in the process.  (The Obama administration ripped off taxpayers and retirees in the General Motors and Chrysler bailouts, in order to enrich the left-wing United Auto Workers union, in unnecessary bailouts that have cost at least $70 billion, drawing criticism even from the liberal Washington Post. Many commentators argued that the auto bailouts were illegal, such as the Heritage Foundation and Clinton administration Labor Secretary Robert Reich.)

He also demanded that a small country in Latin America (Honduras) violate its constitution by allowing the return to power of its left-wing ex-president and would-be dictator, imposing travel sanctions on its ordinary citizens as punishment for a ruling by its supreme court refusing to reinstate the ex-president, who was removed for violating his country’s constitution.  (The ex-president, Mel Zelaya, is a paranoid, erratic bully who claims he is being subjected to “mind-altering radiation and poison gas” and targeted by “Israeli mercenaries.”)

ACORN Sues Whistleblowers for Exposing Its Wrongdoing in Scandal

by Hans Bader on September 24, 2009

in Deregulate to Stimulate, Healthcare, Legal, Personal Liberty, Politics as Usual, Privacy, Sanctimony

ACORN is now suing the whistleblowers who allegedly filmed it promoting illegal sexual activities for $2 million! And not just them, but also the conservative web site that made the video public! ACORN seeks an injunction to silence them — a classic example of an unconstitutional prior restraint.

That’s a flagrant violation of the First Amendment, but the lawsuit was filed in state court in Baltimore, where the judges are very liberal, so who knows if ACORN’s lawsuit will be dismissed. Even if it is, the lawsuit will cost the whistleblowers thousands of dollars in lawyers’ bills. The Baltimore City prosecutor has already expressed hostility to the whistleblowers who exposed ACORN’s wrongdoing, threatening to prosecute them under a state “privacy” law restricting audiotaping.

(Similar “privacy” laws in Massachusetts have been used to shield kidnappers calling in ransom demands, and police abusing motorists!).

I earlier discussed some of the First Amendment issues here. A commenter at National Review argued that the lawsuit is meritless even if you ignore the First Amendment.

The Supreme Court has held that privacy lawsuits, and lawsuits in general, can’t be based on protected speech, in cases like Bartnicki v. Vopper.  That principle was extended by today’s appeals court ruling in Snyder v. Phelps overturning a Maryland jury’s $5 million damage award for intrusion-upon-seclusion, and an earlier ruling limiting state audiotaping laws in Jean v. Massachusetts State Police (2007).

The IRS just ended its controversial relationship with ACORN, which earlier had its housing funds cut-off by Congress over a recent controversy, and is now embroiled in a tax evasion scandal.

ACORN has long received taxpayer money despite a history of financial fraud and voter registration fraud. ACORN helped spawn the mortgage crisis by promoting “liar loans.”

ACORN is a left-wing group that launched Obama’s career as a community organizer. He has long-standing ties to ACORN, and an ACORN affiliate received received $800,000 from Obama’s campaign. ACORN stands to profit greatly from Obama’s financial-regulation proposals, which would strengthen the Community Reinvestment Act (The Community Reinvestment Act is extremely harmful to banks and prudent lending, pressuring banks to make risky, low-income loans).

ACORN affiliates would also likely profit from Obama’s health-care plan, which contains subsidies for community organizers. (Obama’s health care plan would raise taxes, break promises, increase the deficit, destroy many inexpensive health-care plans, and take away important freedoms.)

An Explosion of Litigation

by Hans Bader on March 13, 2009 · 1 comment

in Bailout Watch, Economy, Employment, Healthcare, Labor, Legal, Politics as Usual, Precaution & Risk, Privacy, Regulation, Stimulus to Nowhere

Already burdened by $8 trillion in new federal spending commitments and the likelihood of higher taxes to pay for bailouts, pork, and welfare, the economy now faces an additional threat: an explosion of litigation.

Even liberal Washington Post columnist Michael Kinsley can’t stand the Supreme Court’s liberal 6-to-3 ruling in Wyeth v. Levine, which let a patient sue an innocent drug maker for an injury caused by a physician’s assistant who disregarded repeated warnings by the drug maker. (The ruling indirectly “will cost lives“). As Kinsley notes,

“Diana Levine, a professional guitarist, showed up at the hospital for the second time in one day complaining of . . . hours-long spasms of ‘retching’ and ‘vomiting.’ She was injected with an anti-nausea drug called Phenergan. The label on Phenergan says six times, in different ways, some of them in boldface capital letters, that if Phenergan gets into the arteries, the result can be disastrous. Nevertheless, a physician’s assistant used the wrong method of injection, and Levine’s arm turned gangrenous and ultimately had to be amputated.”

“The drug company Wyeth has sold Phenergan, with Food and Drug Administration approval, since 1955. The official question in Wyeth v. Levine, decided last week by the Supreme Court (the quotes above are from Justice Samuel Alito’s dissent), was whether that federal government approval “pre-empts” a Vermont jury ruling in favor of Levine. The court said no. A more interesting question is: How did we end up with such a crazy system for making important decisions? . . .”

“What happened to Diana Levine is a tragedy and a scandal. But what did Wyeth do wrong? Is there any way the company could have stayed out of trouble? It’s unlikely. Phenergan has been legal for half a century. (If you Google the word “Phenergan,” the results include pages containing an ad for Phenergan online.) So if you can’t get them for the product itself, you nail them for a “failure to warn.” The basic fiction at the heart of the whole system of regulation by lawsuits is that people read and act on warning labels. But the FDA approved Wyeth’s original warning label and every change since. “Not good enough,” said a Vermont jury, and, incredibly, a majority of the Supreme Court agreed.”

The arbitrary litigation fueled by this decision will cost lives over the long run by discouraging medical innovation, notes Gordon Crovitz in the Wall Street Journal. Jim Copland and Paul Howard call the counterproductive Wyeth decision “a ‘cure’ worse than gangrene.”

Ted Frank calls the Wyeth decision the most anti-business decision in more than 40 years. Yet, amazingly, the liberal New York Times, which wants even more lawsuits, accused the Supreme Court of “reflexive deference to corporations“!!!

Greg Conko observes that the jury’s decision was baseless and undermined the FDA’s labeling process. “The physician’s assistant injected Phenergan into Ms. Levine’s artery, in direct contravention of six label warnings against arterial injection. More or sterner warnings against arterial injection would not have prevented Ms. Levine’s injury.” “FDA made a regulatory decision that the benefits of IV injection outweighed the risks, and the agency permitted the product to be labeled accordingly. . . letting a Vermont jury penalize Wyeth for not ruling out IV injection on Phenergan’s label is tantamount to letting a group of laymen over-rule FDA’s expert opinion regarding safety.” Yale Law School’s Peter Schuck similarly criticizes the Supreme Court’s decision.

Don’t expect any help from Congress. Incredibly, it is moving to abolish what little limits there currently are on state court lawsuits that undermine federal drug-labeling requirements. The day after the Wyeth decision, trial lawyer allies like Rep. Henry Waxman (D-Cal.) proposed legislation to completely abolish any preemption of such lawsuits, even in the exceedingly narrow circumstances where the Supreme Court admits preemption is appropriate.

Drug and device lawyers explain the Wyeth decision as being partly the judiciary’s reaction to the 2008 election, when liberal politicians friendly to lawsuits, and hostile to (often mythical) “deregulation,” made big gains. As the humorist Finley Peter Dunne noted a century ago, the Supreme Court reads election returns.

Workplace lawsuits also will rise. A costly comparable-worth bill backed by the Administration, the Paycheck Fairness Act, passed the House earlier this year on a largely party-line vote. And a law that largely eliminates the statute of limitations in pay-discrimination cases, the Lilly Ledbetter Fair Pay Act, was signed by Obama in January. Obama made false claims about the Supreme Court decision the Ledbetter law overturned (and the facts of that case), and broke campaign promises he made by signing it into law without the opportunity for public comment.

Obama also backs the so-called Civil Rights Restoration Act, which would radically rewrite federal discrimination law in several ways, such as scrapping limits on punitive damages (and allowing them in situations never before permitted by any federal court), and making schools liable for many more instances of “peer harassment” by students (increasing the pressure on colleges to adopt speech codes).

Other “radical employment law changes will create lots of work for attorneys,” according to the National Law Journal.

The economy-shrinking stimulus package Obama signed also contains multiple provisions creating new grounds for lawsuits. It contains increased damages and state attorney-general rights to sue under the burdensome and expensive HIPAA law, which contributed to the Virginia Tech shootings, has impeded public safety, and causes billions of dollars in losses due to pointless red tape. The stimulus package also contains vague and expansive whistleblower provisions allowing suits over actual or perceived wrongdoing.

The Administration also shows no interest in tempering the excesses of a law Obama supported, the Consumer Product Safety Improvements Act, which has shut down thrift stores and entire industries, and gives state attorney generals and their trial lawyer allies broad new powers to bring lawsuits over toys, clothes, and books, resulting in children’s books being thrown out and pulled from library shelves by the thousands.