October 12 roundup

  • Speech-curbing proposals continue to get polite academic reception: NYU’s Jeremy Waldron, big advocate of laws to curb “hate speech”, delivered Holmes Lectures at Harvard this past week [HLS, schedule]
  • Lawsuit over collectible baseball hit into stands by Phillies’ Ryan Howard, his 200th career homer [Howard Wasserman, PrawfsBlawg; NJLRA]
  • Orchid-importer prosecution a poster case for the evils of overcriminalization? Maybe not [Ken at Popehat]
  • Texas State Fair and city of Dallas don’t have to allow evangelist to distribute religious tracts inside the fair, judge rules after three years [Dallas Observer blog]
  • Drug maker: FDA’s curbs on truthful promotion of off-label uses impair our First Amendment speech rights [Beck and Herrmann and more, Point of Law and more]
  • Did plaintiff Eolas Technologies go to unusual lengths to ensure Eastern District of Texas venue for its patent litigation? [Joe Mullin, IP Law and Business via Alison Frankel, AmLaw]
  • Update: “Lesbian Denied Infertility Treatment Settles Lawsuit” [San Diego 6, earlier]
  • Even in the Ninth Circuit, “psychological injury resulting from a legitimate personnel action” is not compensable [Volokh]


  • Re first-amendment rights and drug labeling: Search online for

    “First Amendment Aspirin”
    (include the quotes to restrict the search to that specific phrase)

    and you will find that many years ago, Life Extension Foundation (LEF) marketed low-dose aspirin under this trade name. The label suggested taking it for the FDA-unapproved but medically justified purpose of reducing the risk of strokes and other cardiovascular events.

    FDA warned LEF to cease and desist. LEF refused. So FDA went to the company that actually manufactured the pills and supplied them to LEF. The manufacturer bowed to FDA pressure.

    Today, you can still buy low-dose aspirin in any pharmacy. This dosage is specifically intended to reduce cardiac risks, but manufacturers are still prohibited from saying so.

  • The lesbian desiring medial assistance for her ‘infertility’ does not seem infertile in any medical sense.
    She may need a man like a fish needs a bicycle; but she needs some of the little swimmers from the man.

  • The newspaper identified the plaintiff’s lover as her spouse and a party to the lawsuit. Yet, California law specifically prohibits marriage between people of the same sex. Then, isn’t the newspaper description inaccurate, and by what right is the woman’s girlfriend a party to the lawsuit? What legal right of hers has been denied if the clinic refuses fertility treatment to another woman she is unrelated to?

  • Jack Olson@Just a guess, but some same sex marriages are in fact legal in California, namely those contracted after the CA Supreme Court legalized them and before the passage of Proposition 8. The proposition did not have retroactive effect. It may be that the plaintiff and her lover married during the period in which it was legal to do so.