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Senate's Proposed Moratorium on Prescription Drug Advertising Raises Constitutional Red Flags, First Amendment Expert Warns

FOR RELEASE: April 27, 2007

Contact: Richard T. Kaplar
The Media Institute
703-243-5700

 

Arlington, Va., April 27, 2007 - A provision in a Senate bill that would ban advertising about new prescription drugs for up to two years is a "classic prior restraint" unlikely to withstand constitutional scrutiny, a First Amendment expert warned today.

Robert Corn-Revere, Esq. said that the provision in S. 1082, the "Enhancing Drug Safety and Innovation Act of 2007," would "vastly expand the FDA's authority to restrict truthful, direct-to-consumer drug advertising and it is clearly inconsistent with First Amendment principles that protect commercial speech."

Corn-Revere's comments were published in a Media Institute "Policy Views" issue paper released today. He notes that the U.S. Supreme Court has emphasized repeatedly that it approaches prior restraints with a "heavy presumption" against their constitutional validity.

Even if that hurdle could be overcome, the Senate provision is far too broad to be considered a "narrowly tailored" restriction as required by the Court's commercial speech doctrine, Corn-Revere cautions.

"S. 1082 proposes the most restrictive and least constitutionally sensitive tool in the government's regulatory arsenal - a prior restraint on truthful, non-misleading speech. Such an approach is unlikely to survive judicial review," Corn-Revere concludes.

Corn-Revere is a partner in the Washington, D.C., office of Davis Wright Tremaine LLP, specializing in First Amendment and communications law. He has been involved in federal court proceedings dealing with the Communications Decency Act, the Child Online Protection Act, Telephone Consumer Protection Act, Internet content filtering in public libraries, public broadcasting, and cable television regulations. Corn-Revere is a former chief counsel of the FCC.

The S. 1082 analysis, and information about the Institute, visit www.mediainstitute.org.