MFIA Clinic Defends Medicare Drug Price Negotiation Program Again
The Media Freedom & Information Access Clinic (MFIA) has filed another amicus brief defending Medicare’s drug price negotiation program against ongoing claims by two drug manufacturers that the program violates their First Amendment rights.
Bristol Myers Squibb and Janssen Pharmaceuticals, plaintiffs in a consolidated appeal, are among several drug companies who have filed lawsuits challenging the program on the grounds that it compels them to speak in violation of their First Amendment rights. Companies contend that signing contracts required to participate in drug price negotiations forces them to agree that the price paid by Medicare is the “fair” price for their drugs. The brief, like those the clinic has previously filed in Bristol Myers Squibb and Janssen cases, dispute that claim.
A federal district court in New Jersey agreed that the negotiation program presents no First Amendment concern. The latest brief, submitted on behalf of the Abrams Institute for Freedom of Expression this fall, urges the U.S. Court of Appeals for the 3rd Circuit to affirm this conclusion.
The brief contends that drug companies are mischaracterizing the negotiation program and misstating the scope of their First Amendment protection. No speech is compelled, the brief explains, because participation in the program is voluntary and the contracts do not require the drug companies to speak or limit their ability to speak to any extent.
The Abrams Institute notes that, as a threshold matter, participation in both Medicare and the negotiation program is voluntary. Because “a violation of the First Amendment right against compelled speech occurs only in the context of actual compulsion,” the brief explains, “the voluntary act of participating in the negotiation program raises no compelled speech concern.”
As a separate ground for rejecting the drug companies’ objection, the brief underscores that signing a contract does not constitute “speech” protected by the First Amendment. As it explains, “a price-setting contract is a regulation of conduct, not speech,” and signing the Medicare contract “conveys no mandated message that drug manufacturers must embrace.” Rather, the drug companies remain free at all times to criticize the negotiation program publicly.
As part of the Inflation Reduction Act, Medicare was authorized to negotiate lower prices for life-saving medications used by millions of Americans. The price negotiation program was introduced to address skyrocketing drug costs and to align with successful pricing models used by the Departments of Defense and Veterans Affairs. Implementation of the program has already demonstrated its effectiveness, achieving significant savings by negotiating lower prices for key medications, according to its supporters.
According to Tobin Raju, the Craig Newmark Fellow at the MFIA Clinic, “the broad view of protected ‘speech’ advanced by the drug manufacturers, if accepted by the courts, would threaten to subject to heightened First Amendment scrutiny vast swaths of established law —from contract and antitrust principles to health and safety regulations.”
The clinic’s brief objects that this approach is contrary to First Amendment precedent and purpose, and urges the court to reject it.
The Floyd Abrams Institute for Freedom of Expression is committed to ensuring that free speech rights are interpreted in ways that protect democratic values without disrupting essential regulatory frameworks.
The Media Freedom and Information Access Clinic at Yale Law School is dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression by providing pro bono legal services, pursuing impact litigation, and developing policy initiatives. The clinic is a program of the Abrams Institute for Freedom of Expression and the Information Society Project.
