OF LAWYERS, PHARMACEUTICALS, AND THE FIRST AMENDMENT

I am a trial lawyer and have been for 45 years. I have tried many cases, some of which I would dearly like to forget, some bearing fond memories, because of the lives I have touched and, in manyrespects, made a difference in.

When the vigor of my youth was in service and as a young member of what I thought to be a noble profession, state bar associations forbade lawyer advertising.  The playing field did not belong to leviathan firms devoting enormous amounts of resources to luring potential injury clients through their oak or glassed doors by marketing devices that have become so sophisticated a net, even clients with some modicum of intelligence could not resist their allure.  A list of large verdicts on their websites and circulars imply great success, and how much money will eventually wind up in the client’s pocket. Of course, this is a fiction and the bar does not allow ads that guarantee results, but still, the implication is there, perhaps a bit more nuanced.

This type of advertising is, according to court decisions, permissible in the United States because of the first amendment.  But clearly something is amiss.

“Mesothelioma patients have many questions,” endlessly droning on CNN and the other daytime broadcasts, “call us at 800 …...”   “If you were injured by a medical device,” call us,    “If you took drug X and suffered serious side effects, call us.”  “If you suffered poor medical care, call us….”   "Top Lawyers" magazines, supported by lawyers who seek esteem and more importantly, increased revenues pay to be listed as a "Top Lawyer"  Ambiguous requirements for listing in such publications betray their pecuniary motivations for listing a lawyer.  And if one does not have a sophisticated website, one exists only to loved ones, presumably if he makes it home for dinner.

You get the picture.   Millions of dollars lavished to corner the market, marginalizing lawyers who do not devote their resources to advertising.    Bear in mind that lawyers who prolifically advertise, are not necessarily more competent than lawyers who do not.  Very often lawyers who do not advertise are better at what they do, devoting time to their clients, not to market share, and relying on word of mouth of satisfied clients over years of building a reputation.  Of course, the consumer should make educated choices on who will represent them.  But often they are hoodwinked into believing that the bigger the ad the better the lawyer.   This notion misguided.

Many lawyers who run huge marketing operations have never seen the inside of a courtroom, operating their firms as referral mills, obtaining associate fees on cases they do not even work on.  Ok, some lawyers do perform a valuable service in a case and deserve a referral fee, but many do not.  The bar makes no distinction, the rationale being that the referring lawyer provides value to the hapless client in search of good representation.  Or he had done work on the file and needed a team to help with the complexities of the case and an army of defense lawyers against him, if he or she is a sole practitioner.

Much worse, pharmaceutical companies advertise prescription drugs on television, in print media and now in social media.  “Ask your doctor about Viagra.” A beautiful woman glides down the porch on her way to the bedroom, a come hither look on her face.  A couple sit in adjoining bathtubs, holding hands, “when the time is right, why wait?”  Cialis for daily use.   And by the way, if you see yellow or go blind or die of low blood pressure because you take some other medication that interacts badly, stop taking it immediately and call your doctor (or 911).  I am not making this up. Ask your doctor about almost every newly minted drug.  “If you have cancer and have low platelets, ask your doctor, ask your doctor, ask your doctor….”   Following a rustic scene about a poor soul staring out a window suffering from heart failure, an ethereal smile on his face, the ad promises a brighter tomorrow accompanied by “The Sun Will Come up Tomorrow,” for someone who is soon to die or get on the transplant list.  Then the ad proceeds to list a litany of hastily announced side effects (small print) that would frighten Superman.  The old dad or mom, in the nursing home, a happy smile on their face, could have their dementia slowed, but the drug might kill them or cause them to commit suicide? Or not stop the progression of the disease.  No help at all.  Who would take that medicine after hearing that?  Consumers circumventing medical advice because they have been brainwashed because of marketing?   Some of us are old enough to remember “More doctors smoke Camels than other brands, because it is better for your “T Zone.” We do not see those ads any more.

Meanwhile the courts allow this commercial speech as though it were a preciously guarded first amendment right.  The same as a right to political speech.  This type of pharmaceutical advertising is banned in the European Union and in most other countries and for good reason.  Consumers are not qualified to evaluate medical prescriptions.  If they were we could all stroll down to Walgreen’s or CVS and write our own.

Doctors go to medical school presumably to learn about which drugs to prescribe, not to be bombarded by brainwashed patients asking questions over some obviously hyped up medication, fueled by advertising dollars, often in the billions.  Clearly this has a chilling effect on what doctors actually prescribe, because even they are very often not sure and must read studies and do research, following strict protocols.   These ads are dangerous and people should be made aware by the FDA or a compulsory fund paid by the drug companies, which could run ads warning people not to believe drug advertisements or take them at face value.  But no such counter advertising exists, because the funding is not there.

Very often studies show that the new medication, costing more, is no more effective than an older medication sold over the counter, costing far less.   Health care costs rising?  Ask your pharmaceutical company.  Or ask your congressman who could draft some new laws were they not lunching with drug company lobbyists.

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THE ROAD TO TYRANNY: THE MARGINALIZATION OF THE PRESS AND THE RULE OF LAW

In his State of the Union speech in January 1941, President Franklin Roosevelt declared America's commitment to Four Freedoms in the struggle against Nazi totalitarianism. Among them was the freedom from fear.

Robert Dallek

Much of the fear generated in our body politic, exacerbated by the vituperative and vindictive emanations from President Trump and his acolyte apologists, attacking the free press read directly from the totalitarian playbook.  Anyone who has studied European history understands the origins of German totalitarianism flowed from the democratic election of Adolf Hitler in 1933. 

Abrogation of liberty occurred incrementally, and generally, with the population at large ignoring each erosive stage since Germans thought it would not affect them individually, a beach washed away by waves.  In Weimar Germany, Hitler’s consolidation of power, a step-by-step process, took years, in which his original supporters and putative enemies were first marginalized, arrested, imprisoned and then murdered.   New illicit laws supported Hitler's perfidious allegations that the press were foreign subversive agents of the Bolsheviks and the Jews, enemies of the state.  Then journalists were arrested, followed by the Nuremberg laws proscribing racial guidelines and Aryanism to the first degree, the second degree and so on down the totem pole.  Jews were at the bottom, on their way to be classified as subhuman, eligible for deportation, arrest and extermination.  Neighbors denounced neighbors.  All of this unchecked by institutions gradually dissolved and laws perverted by a master of manipulation of baser instincts of the human psyche--fear.  Sound familiar?

Hitler announced his intentions in Mein Kampf, but took time to effectuate his plan for Europe and the rest of the world.  He believed America set an example of what he should do in Eastern Europe by its treatment of the Native American, Mexicans, and the "lesser races" by its racially inspired concept of Manifest destiny in which the white government expropriated the land of Native Americans and had enslaved African Americans.  Andrew Jackson, a Trump hero, was a proponent of this policy of racial exclusion.  Hitler's plan of lebensraum was a copycat version related to the "lesser" races of Eastern Europe, the Slavs, the gypsies, the Jews, the Russians, the Poles.  He was weak at first, people dismissing him as a crank and a madman.  Even Jewish newspapers editorialized that once he assumed office he would moderate his position.   He would act more like a statesman. 

In Germany, the Fuhrer embarked in a plan of dominance based upon the nationalistic instincts of Germans, his propaganda ministry churning out lies and misinformation to explain and scapegoat the problems of the Reich, by blaming minorities, communists, Jews and political opposition, jailing journalists, clergy and promulgating a world view of racial and nationalistic animus codifying it all into perversions of law facilitated by courts of Nazi martinet judicial imposters.

History instructs us about past events roughly analogous to what is happening today.   American institutions and the rule of law are under threat from a President the likes of whom we have never seen before, who cannot distinguish between lies and truth, is ignorant of policy and has no understanding of the world order.  His own worldview preys upon the baser instincts of fearful people, who believed our former President was a Muslim not born in the United States and who would "institute Sharia law in the United States of America." Trump played this fear like he played his stiffed workers. This alone should have been disqualifying for a presidential candidate.  But his followers do not care.  They actually believed the con.  Whatever else Trump is not, he is a master showman, a PT Barnum, relying on the gullibility of the ignorant, the uneducated, the true believer.  His latest trip is an attempt to manipulate the Justice Department.

In 1945, the United Nations, formed as a methodology of dispute settlement among nations rather than war, has essentially kept the peace for 70 years.  Disagreements between nations, including trade were to be arbitrated and the results binding.  The world did not want to relive the horror of a war that killed 50 million people.  Now Trump, an anathema to this principle wishes to return to the 1930s--every nation for itself.  A return to the 20th century, the most devastating in human history.    He visits Saudi Arabia and praises a nation that disregards human rights and then castigates our democratic allies.   He criticizes South Korea on the eve of an election between a friendly to America candidate and an antipathetic one when he knows the South Koreans are our most important ally in efforts to curb the madman in the north.  The antipathetic candidate wins the election.   Denzel Washington on his best day could not stop this runaway train.

Worst of all is his attack on our free press, reminiscent of states like Saudi Arabia, Iran, Turkey, Hungary, and Putin's Russia, who everyone now knows meddled in our election and is attempting to destabilize NATO and democracy in America.  His admiration of dictators and authoritarians is no less secret than Madonna's bra.  He orates on the banks of the Ohio river talking about the renaissance of coal and the promise of new jobs that will not come back, nakedly averting attention from the potentially explosive investigation, showcasing his tainted character and degradation of his Presidency to the peril of all Americans.

Our institutions need more vigilance from below than ever before.  The roots in the tree of Liberty are fragile.