MFIA Counters Drugmakers’ Challenge of Medicare Drug Pricing Program in Amicus Brief

The Media Freedom and Information Access Clinic has filed an amicus curiae brief in two cases in which drug manufacturers claim that a voluntary program to negotiate Medicare drug prices infringes on their First Amendment rights. Filed Nov. 6. on behalf of the Abrams Institute for Freedom of Expression, the brief calls on the District Court of New Jersey to reject the plaintiffs “overbroad” interpretation of speech. According to the brief, this interpretation threatens to upend vast swaths of well-established law. 

After decades of soaring Medicare drug prices, the 2022 Inflation Reduction Act instituted a drug negotiation program to determine the maximum prices Medicare will pay for certain drugs based on factors deemed relevant by Congress. Bristol Myers Squibb v. Becerra and Janssen v. Becerra are two of several lawsuits in which drug companies are challenging that program.

In their lawsuits against the government, Bristol Myers Squibb Company and Janssen Pharmaceuticals, Inc. argue that the program forces them to sign a manufacturer agreement. In doing so, the companies argue, the government compels drug companies to affirm that the price-setting process is a “negotiation” and the resulting price is “fair.” This violates the First Amendment’s compelled speech doctrine, which prohibits the government from forcing anyone from speaking a message that is not their own, according to the drug companies.

The Abrams Institute’s brief counters that the drug negotiation program is not a regulation of First Amendment protected activity and that plaintiffs’ assertions are “fundamentally flawed” for several reasons. 

“The plaintiffs’ expansive view of what constitutes compelled speech would imperil many routine laws,” said Tobin Raju, Craig Newmark Clinical Fellow at the Media Freedom and Information Access Clinic. “The First Amendment does not prohibit government from determining the prices at which it is willing to purchase goods — plaintiffs’ arguments trivialize the type of expression the First Amendment actually protects.”

Participation in the drug negotiation program is not compelled but voluntary, the brief points out: Companies are not forced to do business with the government. Further, the brief notes, the manufacturer agreement does not regulate the manufacturers’ speech but their conduct. As the brief puts it: “The Agreement defines what plaintiffs must do, not what they must say”. Finally, the brief asserts, the simple act of signing an agreement that uses the term “maximum fair price” does not compel the manufacturers to affirm that the price is “fair.”

Yale Law School students Elisa Kong ’25, Aaron Mak ’25, and Rachel Troy ’25 worked on the brief.

The Media Freedom and Information Access Clinic at Yale Law School is a law student clinic 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 Floyd Abrams Institute for Freedom of Expression at Yale Law School promotes freedom of speech, freedom of the press, access to information and government transparency. The Institute’s activities are grounded on the belief that collaboration between the academy and the bar will enrich both scholarship and practice.