Stop Expressing Opinions About Health Care Reform

[tombogan03884]

Posted by Eugene Volokh:
Government Instructing Private Corporation To Stop Expressing Certain Opinions About Health Care Reform?
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253577624


   Here's a [1]letter from the Department of Health & Human Services
   Centers for Medicare & Medicaid Services (CMS) to Humana, Inc., a
   leading health insurance company; the letter is apparently demanding
   that Humana stop sending [2]this mailing.

     Dear Ms. Miller/Ms Kelly:

     CMS has learned that Humana has been contacting enrollees in one or
     more of its plans and alleging that current health care reform
     legislation affecting Medicare could hurt âmillions of seniors and
     disabled individuals [who] could lose many of the important
     benefits and services [emphasis in original document] that make
     Medicare advantage health plans so valuable.â The message, which is
     included in an envelope that states it contains âimportant
     information about your Medicare Advantage planâopen today!,â makes
     several other claims about the legislation and how it will be
     detrimental to enrollees, ultimately urging enrollees to contact
     their congressional representatives to protest the actions
     referenced in the letter (see attachment).

     CMS is concerned that, among other things, this information is
     misleading and confusing to beneficiaries, represents information
     to beneficiaries as official communications about the Medicare
     Advantage program, and is potentially contrary to federal
     regulations and guidance for the MA and Part D programs and other
     federal law, including HIPAA. As we continue our research into this
     issue, we are instructing you to end immediately all such mailings
     to beneficiaries and to remove any related materials directed to
     Medicare enrollees from your website.

     Please be advised that we take this matter very seriously and,
     based upon the findings of our investigation, will pursue
     compliance and enforcement actions....

   As best I can tell, the statements in the Humana mailer contained
   constitutionally protected opinion. Whether it's "misleading and
   confusing" naturally depends on how you interpret the mailer, and the
   various health care proposals. But precisely because the terms are so
   mushy, political advocacy (as opposed to commercial advertising) can't
   be restricted simply on the grounds that it's "misleading and
   confusing." Even knowingly false statements of fact about the
   government are [3]generally constitutionally protected; it's possible
   that knowingly false statements of fact about particular legal
   proposals are not protected, but I've never seen any cases that extend
   such a false-statements-of-fact First Amendment exception to
   statements that are merely "misleading and confusing." (I suspect also
   that if the DHS had the goods on why the statements were supposedly
   outright false, it would have said so.)

   It's possible that the claim about the envelope's supposedly
   "represent[ing] information to beneficiaries as official
   communications about the Medicare Advantage program" is an allegation
   of outright knowing falsehood. I couldn't find a copy of the envelope
   that the DHS letter complains about; if you can point me to it, I'd be
   much obliged. But the DHS letter complains about the content of the
   mailing as well as the envelope, and the "instruct[ion]" "to end
   immediately all such mailings to beneficiaries and to remove any
   related materials directed to Medicare enrollees from your website"
   seems to cover the content and not just the envelope.

   There's also a separate question about whether "instruct[ing]" a
   private company to stop certain speech, before any adjudication that
   the speech is unprotected, is a prior restraint. Presumably threats to
   prosecute or sue based on assertedly unprotected speech are generally
   permissible, if the speech is indeed unprotected, but an overt order
   -- which is how the letter is framed -- is generally not. But that to
   me is something of a tangent; I don't see any basis for how the
   contents of the letter can even be subject to subsequent punishment,
   much less a prior restraint.

   Thanks to [4]InstaPundit for the pointer.

References

   1. http://www.finance.senate.gov/press/Bpress/2009press/prb092109a.pdf
   2. http://big.assets.huffingtonpost.com/humanamailer.pdf
   3. http://www.volokh.com/posts/1191612788.shtml
   4. http://instapundit.com/

[Pathfinder]

     we are instructing you to end immediately all such mailings
     to beneficiaries and to remove any related materials directed to
     Medicare enrollees from your website.

     Please be advised that we take this matter very seriously and,
     based upon the findings of our investigation, will pursue
     compliance and enforcement actions....
...
   Presumably threats to
   prosecute or sue based on assertedly unprotected speech are generally
   permissible, if the speech is indeed unprotected, but an overt order
   -- which is how the letter is framed -- is generally not. But that to
   me is something of a tangent; I don't see any basis for how the
   contents of the letter can even be subject to subsequent punishment,
   much less a prior restraint.

#1 - This is more than just a threat to sue, or even a direct order to cease and desist. This is a bald-face threat to use the gummint bureaucracy to make Humana's life miserable and perhaps put them out of business.

#2 - The crowd in DC today does not play by any rules other than their own - which can change depending on what they want to achieve.

[Bidah]

Pathfinder noted the very same things that I did.  I read it very much the same.

We are ordering you to stop mailing this out.  We cannot get to you directly on this mailing, but we can make the Humana life he** through regulatory compliance investigations and such..  we will find dirt somewhere.  The current administration has already shown they make their own rules.

-Bidah

[tombogan03884]

An interesting post that has bearing on this thread, but also on BO's actions in Nationalizing the banking and auto industries.
It's fairly long so I am only posting the link.

http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253637850

[Bill Stryker]

Today's Wall Street Journal has a lead editorial titled, "Baucus Bludgeons Humana."

Tom's post tells the story of the letter. The WSJ points out Sen Baucus role.

The conclusion reads:

"Humana merely made the mistake of trying to tell seniors the truth about what will happen to their coverage, and now CEO Michael McCallisther had better hire a good team of lawyers. Mr. Baucus and the Obama Administration are out to make him an object lesson to the rest of the business class, and that means that they won't stop until Humana cries uncle or is ruined."

What a bunch of crooks. Didn't they ever bother to read the Constitution or take a Civics class?

[Sponsor]

[tt11758]

Today's Wall Street Journal has a lead editorial titled, "Baucus Bludgeons Humana."

Tom's post tells the story of the letter. The WSJ points out Sen Baucus role.

The conclusion reads:

"Humana merely made the mistake of trying to tell seniors the truth about what will happen to their coverage, and now CEO Michael McCallisther had better hire a good team of lawyers. Mr. Baucus and the Obama Administration are out to make him an object lesson to the rest of the business class, and that means that they won't stop until Humana cries uncle or is ruined."

What a bunch of crooks. Didn't they ever bother to read the Constitution or take a Civics class?

Didn't you know?  The Constitution is a "living, breathing document" that they feel they can twist any way they wish to accomplish their goals.

Treasonous bastards.