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Death-Penalty Drugmaker Shouldn't Be Anonymous

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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In a case that evokes a modern-day hangman’s mask, a pharmacy that provides lethal drugs for carrying out the death penalty is arguing that it has a constitutional right to anonymity. The argument should fail, because there’s no right to confidentiality in providing government services. But it shows just how dangerously far the idea of corporate constitutional rights has gone in the era of Citizens United and Hobby Lobby.

The strange situation, as reported by BuzzFeed News, arose out of a lawsuit by death row inmates in Mississippi who are arguing that the particular combination of drugs used by their state as its method of execution is cruel and unusual. In the course of the suit, the Mississippi inmates subpoenaed the Missouri Department of Corrections to find out, among other things, what drugs the state uses in its execution cocktail and who provides them. In response, Missouri argued that it had a sovereign right to keep confidential the identity of its supplier.

The U.S. Court of Appeals for the 8th Circuit is considering whether to quash the subpoena. It has allowed Missouri’s supplying pharmacy, identified in court papers only as M7, to file its own argument with the court.

QuickTake Lethal Injections

M7, which has sold more than $125,000 worth of lethal chemicals to Missouri, said its identity shouldn’t be disclosed, because it has a First Amendment free-speech right to act in support of the death penalty on the basis of its political views.

The broader context here is that abolitionist opponents of the death penalty have been shaming the corporations that provide drugs intended to kill people at execution. The technique has been surprisingly effective, with some 20 major pharmaceutical companies, such as Pfizer, saying their products must not be used in executions. As a result, a number of states have had difficulty getting anyone to sell them the drugs they need to execute by lethal injection. A recent Council of State Governments newsletter spoke of a “lethal injection drug shortage.”

Anonymity, of course, is a way to avoid shaming. But M7’s constitutional argument is deeply flawed. (I almost wrote “fatally flawed” -- but the ubiquitous legal metaphor is a little too close to home in this case.)

The core of M7’s argument is that the First Amendment includes a right to speak anonymously. Under certain circumstances, that’s true. In the landmark 1958 case of NAACP v. Alabama, for example, the Supreme Court held that the National Association for the Advancement of Colored People couldn’t be obligated to disclose the identity of its membership. In the background was the concern that the members could be subject to harassment for exercising their First Amendment right to speak and associate.

But there’s an enormous difference between speaking and acting -- particularly when that action is a for-profit commercial transaction with the government. A government contractor like Halliburton, for example, might be subject to public criticism for a contract like the cost-plus arrangement the company had with the Defense Department during and after the U.S. occupation of Iraq. The potential for public criticism wouldn’t justify a claim by Halliburton to keep its provision of services secret.

To the contrary, in a democracy, it’s crucially important for the government to disclose its vendors, both to avoid corruption  and to promote transparency.

More fundamentally, M7 isn’t speaking at all: It’s performing the act of selling drugs. This behavior can be subject to ordinary regulation, including public disclosure if ordered by a court. The company shouldn’t be able to protect its actions from regulation simply by insisting that it is performing them out of political belief. If that were plausible, businesses could escape all sorts of government regulation by saying that they really, really believe in their corporate mission.

But despite the flimsiness of its legal arguments, there’s a reason M7 is trying to get away with its free-speech argument: the trend in recent years toward constitutionalizing corporate interests. The Citizens United decision in which the Supreme Court by a 5-4 vote held that the First Amendment applied to corporate speech, is the most prominent example.

At least in Citizens United, the corporation was actually speaking. In Burwell v. Hobby Lobby, the justices, again split 5-4, applied the Religious Freedom Restoration Act to a corporation’s funding of its employees’ health care. True, that case technically involved federal law, not the First Amendment. But the subtle difference is easily lost. In essence, the court held that a corporation has a legal right to the liberty of conscience in its business dealings.

A similar impulse lies behind claims by florists or wedding cake bakers who want to be exempt from antidiscrimination laws that might require them to serve gay couples. They are saying that they should be protected by religious liberty so that they may discriminate invidiously while engaged in commercial transactions.

The M7 situation helps demonstrate why it’s so dangerous to treat corporations as though they have fundamental constitutional rights while doing business. Those basic rights are designed to protect individuals against government power. They aren’t supposed to be used to exempt businesses from regulation or publicity whenever it’s convenient for them.

  1. In this case, there's actually the possibility of something fishy: Missouri has been paying M7 $7,188.88 for two vials of pentobarbital for each execution, a price that is allegedly above market value.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net