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Criminalizing scientific speech

In the Wall Street Journal, Scott Gottlieb details the case of the criminal prosecution of InterMune's CEO, Scott Harkonen, who committed the crime of publicizing the results of a study. The FDA disagreed with his conclusions (though federal health agencies use similar methodology in determining "comparative effectiveness"), and the federal government charged him with wire fraud, resulting in six-month sentence for house arrest. Harkonen is appealing to the Ninth Circuit on First Amendment grounds, but the problem is not new: the government has been going after pharmaceutical companies for truthful speech about scientific studies for some time if the consequence might be to publicize the possibility of an off-label use for a drug—an issue explored in detail at an AEI conference I helped organize in 2008. The tale of former District of Massachusetts federal prosecutor Michael Loucks in the New York Times illustrates the perverse incentives for overcriminalization by prosecutors: a prosecutor who makes a name for himself by aggressively expanding the government ambit of what can be criminally charged not only makes himself famous, but creates a market in private industry for his work later.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.