FDA Does Intended Use violate the First Amendment?

[DC2]

Donald Trump seems to have decided that free speech is very important.
Her certainly practices the concept with great gusto anyway.

It seems a lot of folks are agreeing with him.

I was just reading today where his numbers are going up a lot lately.
And that his real support base could be underestimated for various "politically correct" reasons.

It's interesting that we have come to such a place in our political landscape.
That's all I'm going to say about that, one way or the other.

 

[retired1]

Again, going back to the Constitution - "Congress shall pass NO law..." I don't know how much clearer I can make that. So IF Congress has passed A law abridging speech/press, then that law is Unconstitutional.

There are arguments that support libel and slander, but this would go so off topic to be done here. It goes to the basic natural rights of life, liberty and property. I recommend anyone interested to read 'Defending the Undefendable' by Walter Block.

Basically, the 1st Amendment isn't the right to just good speech, if so there would be no need for the 1st Amendment - so it also protects speech that isn't so good. Since a person's 'reputation' is not something he "owns" - since his reputation is dependent on the thoughts of others, of which he has no control, then his reputation cannot be 'stolen' from him (as in a right to property), since he doesn't own it in the first place.

Another problem with laws against speech or press is that they give the false belief that anything spoken and written then must be true. Without those laws, it would be less likely that those assumptions would be made. More fact checking would fill in the gaps.

And again (cut and paste):
Do I know that it isn't present law - Yes. Do I know that it isn't a 'popular idea' - Yes. Do I care about either of those - No.

So in other words, someone making a claim against you that resulted in you being fired, blackballed, divorced and left penniless is OK. All because it's "free speech" and they have the right to ruin you, regardless of whether it's true or not. Because if you don't think that's OK, then you do believe that there are some limits which pretty much negates your 1st Amendment argument.

And if you do think it's OK, Anarchy is no better for society than lack of basic rights. So which is it?

 

[DC2]

So in other words, someone making a claim against you that resulted in you being fired, blackballed, divorced and left penniless is OK. All because it's "free speech" and they have the right to ruin you, regardless of whether it's true or not.

Not directed at me, but...

Isn't that what suing for slander, libel, or defamation are for?
The courts are just one of the three branches of government, and have their purpose.

Passing "laws" that restrict free speech is more of a legislative action.
It doesn't seem that was the purpose they were designed for.

 

[retired1]

However, if I'm correct, KentC thinks it's perfectly fine to be able to spout something like that, all in the name of free speech. If free speech is absolute, then there's no recourse via the courts.

 

[Kent C]

So in other words, someone making a claim against you that resulted in you being fired, blackballed, divorced and left penniless is OK. All because it's "free speech" and they have the right to ruin you, regardless of whether it's true or not. Because if you don't think that's OK, then you do believe that there are some limits which pretty much negates your 1st Amendment argument.

And if you do think it's OK, Anarchy is not better for society than lack of basic rights. So which is it?

This is bordering on stalking. Since our first dustup on 'intended use' you never acknowledged what I was addressing but kept up some 'prosecutorial' tone making statements that didn't address what was said, even though what you said was wrong about 'only vendors, advertisements, etc.' as I noted in the cases the FDA took circumstantial evidence from customers. Still no acknowledgments. Same here. I give you the reasons for why I didn't agree with 'fire in a crowded theater' or 'libel' and all you do is 'ask the next 'leading question' rather than put up some argument against what I said. If it were anyone else you'd say 'knock it off'.... but I'll answer you:

Again, I think Madison was right when he said "Congress shall pass no law abridging freedom of speech" and because of that I think that is 'OK', but doesn't mean I believe in Anarchy - which I think may be better than the current setup and as in the black market for ecigs (to keep this on topic), that it would be better than the deeming, which I also consider unconstitutional. But no deeming would be better than a black market/anarchy.

However, since I've said that I agree with the Constitution, then you should have no doubt that I also support a limited government, not anarchy. I thought that would be clear. Gov't is necessary (a necessary evil) to protect individual rights, (it's only valid reason for existing and why it was instituted) including free speech.

What I don't believe is in many of the laws - that imo and in the opinion of many others, are unconstitutional, many of which has led us to the deeming, and a whole host of other laws that had nothing to do with the original intent of the Constitution. Some of the Amendments did, though - civil rights, etc. but others didn't - prohibition, direct election of Senators, and various other amendments and almost all laws that attempted to skirt the Constitution - whether or not the Supreme Court thought them ok or in one point in time, were afraid of the threat of the President to 'stack the court'.

 

[Kent C]

However, if I'm correct, KentC thinks it's perfectly fine to be able to spout something like that, all in the name of free speech.

I think you're close. Although it isn't "in the name of free speech" - just free speech.

 

[DC2]

If free speech is absolute, then there's no recourse via the courts.

Nothing is "ultimately" absolute, given the system of checks and balances.
The courts are there to discourage such actions that would harm others through punitive outcomes.

It is obviously debatable whether or not legislative action should be used for such enforcement.
But I'm kinda leaning more towards no at this point, because free speech is that important.

 

[Kent C]

Passing "laws" that restrict free speech is more of a legislative action.
It doesn't seem that was the purpose they were designed for.

And the Constitution is pretty specific - "Congress shall pass no law, abridging the freedom of speech and press." And... Legislators (ie Congress) take an oath to uphold the Constitution.

 

[Kent C]

Nothing is "ultimately" absolute

You are stating an absolute. You just contradicted yourself. :- ) This goes to epistemology - how you know things - which I hope we can discuss after you retire But not now lol....

 

[Kent C]

So in other words, someone making a claim against you that resulted in you being fired, blackballed, divorced and left penniless is OK.

This should be addressed. IF someone makes a claim about you where a boss considers firing you for that claim, then you would have to clear the claim (if untrue) with your boss. If he fires you anyway, then you could go to court and prove your case - or to any other venue if it existed - internal affairs, union, etc. The same would occur if blackballed.

As far as divorced goes, if the claim was false and the spouse chose to belief someone else, rather than you, then divorce may be the best solution - remove someone from your life who should have trusted you and didn't. If you have valid evidence against the false claims and you win the court cases involved in being fired or blackballed, you won't be 'penniless'. You may have more pennies than when you started. And would have cleared your name. And I don't mean bringing suit on libel or slander grounds but on wrongful firing or blackballing.

 

[retired1]

Based on what defense? According to you, the person making the claim is perfectly valid in doing so. And can continue to do so until you can't afford to fight it in court.

So. Should there be limits? Or does anarchy prevail with the courts being powerless to stop such things?

 

[Kent C]

Based on what defense? According to you, the person making the claim is perfectly valid in doing so. And can continue to do so until you can't afford to fight it in court.

The person has the right to make the claim, but that doesn't mean the claim is 'valid' and in the case of a job, one would have the opportunity to correct the claim before being fired - in many cases. But if one was fired then it would be against the wrongful firing not against the person being libelous - unless of course it was the boss and then you'd get even more money in court.

Allowing free speech according to the first amendment isn't anarchy. Anarchy is the absence of government. full stop. That is not what we are discussing even though you for some reason think we are or are just using it as some deflecting issue.

Look, I'm for full free speech and evidently you aren't. It should be clear to anyone reading these posts. Some will agree with me and Madison and some will agree with you. That's the reality of the situation. I think that any abridgment of speech starts the slippery slope and so I'm against any law that would do that. The laws against libel, slander and now hate speech and non-political correct speech has college students in a fetal position in their 'Safe Zones' on universities that should be the ultimate in diversity of opinions rather than politically correct "diversity" of skin color or philosophies other than libertarianism, conservatism where they are Not so 'diverse' about those ideas. Again, it's the reality now brought about by unconstitutional laws and philosophies that are in direct opposition to the idea of rights and the freedoms we once enjoyed. We should really leave it at that.

 

[aikanae1]

The person has the right to make the claim, but that doesn't mean the claim is 'valid' and in the case of a job, one would have the opportunity to correct the claim before being fired - in many cases. But if one was fired then it would be against the wrongful firing not against the person being libelous - unless of course it was the boss and then you'd get even more money in court.

Allowing free speech according to the first amendment isn't anarchy. Anarchy is the absence of government. full stop. That is not what we are discussing even though you for some reason think we are or are just using it as some deflecting issue.

Look, I'm for full free speech and evidently you aren't. It should be clear to anyone reading these posts. Some will agree with me and Madison and some will agree with you. That's the reality of the situation. I think that any abridgment of speech starts the slippery slope and so I'm against any law that would do that. The laws against libel, slander and now hate speech and non-political correct speech has college students in a fetal position in their 'Safe Zones' on universities that should be the ultimate in diversity of opinions rather than politically correct "diversity" of skin color or philosophies other than libertarianism, conservatism where they are so 'diverse' about those ideas. Again, it's the reality now brought about by unconstitutional laws and philosophies that are in direct opposition to the idea of rights and the freedoms we once enjoyed. We should really leave it at that.

Ugly is that the court just made a decision against COX that restricts their "safe harbor" and makes them responsible for users actions, which will lead to deep packet inspections of communications to protect themselves. This opens up a can of worms when such data is collected in mass by NSA. I don't think many realize the extent of what we are giving up. At some point they will. This affects our ability to set up a black market.

My interest is in how a law is applied. There are many laws on the books that have good intentions, but without enforcement or useless penalties, they are worthless. FDA violates a number of regulations, but so what if there's no enforcement.

 

[curiousJan]

Free Speech has never been an "absolute". There have always been limits as to what you can say, and where you can say it.

So you're saying there should be absolutely no limits whatsoever? That it's OK to yell fire in a crowded theater?

You didn't answer the question. Do you think Free Speech is absolute?

So you disagree with any law that allows an individual legal recourse for speech that would be considered maliciously slanderous?

So in other words, someone making a claim against you that resulted in you being fired, blackballed, divorced and left penniless is OK. All because it's "free speech" and they have the right to ruin you, regardless of whether it's true or not. Because if you don't think that's OK, then you do believe that there are some limits which pretty much negates your 1st Amendment argument.

And if you do think it's OK, Anarchy is no better for society than lack of basic rights. So which is it?

However, if I'm correct, KentC thinks it's perfectly fine to be able to spout something like that, all in the name of free speech. If free speech is absolute, then there's no recourse via the courts.

Based on what defense? According to you, the person making the claim is perfectly valid in doing so. And can continue to do so until you can't afford to fight it in court.

So. Should there be limits? Or does anarchy prevail with the courts being powerless to stop such things?

This is not the OUTSIDE, and this has little to nothing to do with the proposed changes to Intended Use and the FDA. So I'll quote another of your posts:

People, this is an e-cigarette forum. Let's keep the political conjecture and rhetoric out of it please. This isn't the forum for such things.

 

[Jman8]

Based on what defense? According to you, the person making the claim is perfectly valid in doing so. And can continue to do so until you can't afford to fight it in court.

So. Should there be limits? Or does anarchy prevail with the courts being powerless to stop such things?

It's good to know that you aren't responding to my posts, so I'll just add in:

The limit to absolute free speech is more absolute free speech. This notion that once a person exercises that right, then all other future considerations are put on hold seems preposterous given the points being made. You make a claim based on (absolute) free speech and I make a counter claim. Guess what that counter claim is based on?

Like if I yell fire in a crowded theater and another person yells no fire, then (absolute) free speech has been practiced. The idea of (falsely) yelling fire in a crowded theater leads to panic / harm would also, necessarily mean, that (accurately) yelling fire in a crowded theater would lead to panic / harm. So, perhaps better to just let people burn and remain quiet? Or better to allow counter claims to be stated/yelled, in name of absolutely free speech, even if that leads some to perceive that anarchy has just broken out. They are free to speak about that, or even yell about it. Thank God, the right is absolute.

 

[Kent C]

There are many laws on the books that have good intentions, but without enforcement or useless penalties, they are worthless.

Thought this was worth addressing. Not sure if it's exactly what you're saying but there are laws that go unenforced, and may seem "worthless". That is, until there is a fascist state (or any totalitarian state or the beginnings of one) where those laws then become selectively enforced against usually political enemies. They should be removed from the law books long before that happens.

 

[Jman8]

This is not the OUTSIDE, and this has little to nothing to do with the proposed changes to Intended Use and the FDA. So I'll quote another of your posts:

Good point, but to get back to what I feel @retired1 was previously stating as it does relate to 1st amendment, is that free speech matters more (or perhaps only) in public venues rather than private ones. You want to speak freely about what your views are on a product and have that information shared on a private website (commercially owned by vendor). The interests there are mostly to entirely commercial, intended for marketing their products. A government watchdog group (the FDA) sees your speech as promoting the commercial interests of the company. IMO, they are willing to perfectly allow it, as long as the company is willing to go along with idea that now that your marketing yourself as 'this products works for smoking cessation,' then your product will be treated under regulation for that, i.e. as a drug and not a recreational choice among adults.

If FSPTCA didn't exist, there would be possibility for debate/counter point on a bunch of this, but FSPTCA is squarely addressing how tobacco products are marketed. So, if you think, even for a nanosecond, that BT ought to be forbidden in types of methods it uses to market its products, and thus support the limited speech that is FSPTCA (as law), you need to realize that can and very likely will be used against vaping vendors post-deeming. Yeah, it sucks. It really does, but the way around it is to undo FSPTCA (at best) or to make sure eCigs do not fall under that law. And yet, under which body of regulation shall it fall? If you answer 'none of the above,' then that may be quite satisfactory to wishful vapers and completely impractical to everyone else who is very used to all products existing under some form of control/regulation. Perhaps they could invent a brand new category just for vaping, and we could all pretend that the same people that think FSPTCA is a great idea will come up with something that vapers will all rejoice and think is wonderful for all future vapers.

Until then, as long as FSPTCA is the likely path for regulating eCigs/vaping, then get used to the idea that commercial interests of companies selling those products will be under laws that may be unconstitutional in terms of free speech, but that overwhelming majority, including many vapers, think is peachy king in order to keep BT in check.

 

[bigdancehawk]

The person has the right to make the claim, but that doesn't mean the claim is 'valid' and in the case of a job, one would have the opportunity to correct the claim before being fired - in many cases. But if one was fired then it would be against the wrongful firing not against the person being libelous - unless of course it was the boss and then you'd get even more money in court.

Allowing free speech according to the first amendment isn't anarchy. Anarchy is the absence of government. full stop. That is not what we are discussing even though you for some reason think we are or are just using it as some deflecting issue.

Look, I'm for full free speech and evidently you aren't. It should be clear to anyone reading these posts. Some will agree with me and Madison and some will agree with you. That's the reality of the situation. I think that any abridgment of speech starts the slippery slope and so I'm against any law that would do that. The laws against libel, slander and now hate speech and non-political correct speech has college students in a fetal position in their 'Safe Zones' on universities that should be the ultimate in diversity of opinions rather than politically correct "diversity" of skin color or philosophies other than libertarianism, conservatism where they are Not so 'diverse' about those ideas. Again, it's the reality now brought about by unconstitutional laws and philosophies that are in direct opposition to the idea of rights and the freedoms we once enjoyed. We should really leave it at that.

There is no cause of action for "wrongful firing" unless it's in breach of a contract or the plaintiff was fired because of membership in a protected class.

 

[aikanae1]

Thought this was worth addressing. Not sure if it's exactly what you're saying but there are laws that go unenforced, and may seem "worthless". That is, until there is a fascist state (or any totalitarian state or the beginnings of one) where those laws then become selectively enforced against usually political enemies. They should be removed from the law books long before that happens.

We probably differ on this point. I'm thinking of things like banks were required to pay into FDIC, but there was no one to enforce it, or choose not to and no penalties if they didn't, so they didn't. Or a regulation saying Medicaid should follow a specific standard set by the state, but there's no one to enforce it and no penaltiy when they don't. I know the latter, since Medicaid is federal regulation, there is no private right of action. It's impossible to take them to court for not following federal regulation by an individual.

When I read the SBA letter to FDA, there were quite a few regulations and policy's that hadn't been followed by the FDA re fairness, small business, etc. and every one of them, I thought to myself, "by who? Who would enforce this?" I don't know. I'm not aware of the FDA getting repremanded by anyone so that they would have to change, outside of a court. Congress can make all the laws they want, but without enforcement, the laws are on paper only and meaningless.

It's a mixed bag whether regulations and laws are good or bad. Some are and some aren't.

 

[AndriaD]

Thought this was worth addressing. Not sure if it's exactly what you're saying but there are laws that go unenforced, and may seem "worthless". That is, until there is a fascist state (or any totalitarian state or the beginnings of one) where those laws then become selectively enforced against usually political enemies. They should be removed from the law books long before that happens.

Also, it must be acknowledged that there are a great many laws on the books for relatively minor offenses which are most usually ignored because cops have enough paperwork without making more unnecessary work for themselves -- but the fact that those laws exist gives the police a handy "handle" on those who perhaps are suspected of far worse crimes -- they're detained legally on the basis of the penny-ante offense, which puts them into custody for some indefinite period, while the cops go about their investigation unimpeded by that suspect.

These laws also make it very easy for cops to selectively enforce the law on anyone who pisses them off sufficiently to make the paperwork worth it.

Andria