Sebelius Turns on the Chilling Effect

Today my advice to any person in the health care industry is something I never thought I would say in a free republic.  If you value your business, you might consider shutting up.  As you know, I am corporate counsel for a health care company.  People who understand the business know that this is going to be a disaster—doubly so if the mandate is struck down, but not the rest of the law.

But Sebelius recently put out a warning:

It has come to my attention that several health insurer carriers are sending letters to their enrollees falsely blaming premium increases for 2011 on the patient protections in the Affordable Care Act.  I urge you to inform your members that there will be zero tolerance for this type of misinformation and unjustified rate increases.

And by zero tolerance, the WSJ explains, she means that she will lock you out of the insurance exchanges when they become the only monopoly in charge.

Oh, but don’t worry, the liberals will tell you, she will only apply that to people who are engaged in misinformation and unjustified rate increases.  But in First Amendment law, we have what is called the Chilling Effect.  It is the idea that those who speak do not want to fear even getting close to the line between permissible and impermissible expression.  It is the idea that some will be silent not because they wish to engage in unprotected speech, but because they are afraid their protected speech will be mistaken for the unprotected kind.  How far would you go, if you are afraid of losing your business?

Anyway, Ms. Sebelius, I will point out that before you can jackboot any insurance company out of business that if your monstrosity of a law survives judicial review (highly unlikely), you will discover that the courts will not let you do that sort of thing without due process of law.

But there is no better illustration of the principle, after Citizen’s United, that corporate speech must be protected speech, too.  We must stop treating it as second class.

There is no better argument before the Supreme Court that this monstrosity must be struck down.

And there is no better illustration of the observation of Gerald Ford: “A government big enough to give you everything you want is a government big enough to take from you everything you have.”