Does free speech protect the anonymous sale of lethal drugs?

Pentobarbital is a short acting barbiturate that is used as an anticonvulsant and sedative.  In large enough doses, it is also used to administer the death penalty in humans and euthanasia in animals.[1] Pentobarbital used for the death penalty is often made by small-scale drug manufacturers called “compounding pharmacies”.[2] These so-called “compounding pharmacies” act as an on demand producer of drugs that, in situations such as the state sanctioned execution of a criminal, need not be manufactured in large quantities and kept on a shelf. The death penalty, like abortion, is a contentious topic in the United States. While roughly two-thirds of Americans support the death penalty[3], the opposition is often vocal and potentially violent.  The latter, at least, is the argument used by a compounding pharmacy who believes they have a right to sell these deadly drugs, like Pentobarbital, and remain anonymous while doing so.

In fact, the unnamed compounding pharmacy used to supply the drugs for the last 16 Missouri executions (referenced only as “M7” in court filings) has argued that their right to anonymity is supported by the First Amendment. The Declaration of M7 states “M7’s decision to provide lethal chemicals to the [Missouri Department of Corrections] was based on M7’s political views on the death penalty, and not based on economic reasons.”[4] And, that “M7’s decision to supply lethal chemicals anonymously arises out of M7’s fear of harassment and retaliation, both physical and financial.”

You read that right. M7 believes that by providing deadly drugs to the Missouri Department of Corrections that they are making a sacrosanct political statement, untainted by dirty economic concerns, but they should also be clothed in anonymity due to potential economic concerns. Color me unpersuaded by that logic, counselor.

M7’s argument is important as the 8th Circuit Court of Appeals is going to weigh whether to quash a subpoena that would, in effect, “out” M7 and its employees.[5]  The question is whether the First Amendment includes a right to speak anonymously, when said speech is really action, and when the action is a for-profit transaction with the government. Noah Feldman argues that ‘’…in a democracy, it’s crucially important for the government to disclose its vendors, both to avoid corruption and to promote transparency.”[6]  On the surface, I find Feldman’s argument more compelling.  It will be interesting to read the 8th Circuit’s opinion on the matter.

—  Derek A. Jordan, Esq., Barnes Law

Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law and land surveying in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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