A phar­ma­cy that has received more than $125,000 in cash pay­ments from Missouri for pro­vid­ing lethal injec­tion drugs that the state has used in 16 exe­cu­tions has argued in a court fil­ing that its iden­ti­ty should remain secret, claim­ing that sell­ing exe­cu­tion drugs to the state’s Department of Corrections is polit­i­cal speech pro­tect­ed by the First Amendment. The sup­pli­er’s infor­ma­tion was request­ed in a sub­poe­na by Mississippi death row inmates who are chal­leng­ing that state’s exe­cu­tion pro­to­col, and seek­ing infor­ma­tion about oth­er state prac­tices as part of their law­suit. The phar­ma­cy, which is iden­ti­fied in court doc­u­ments as ​“M7,” filed a motion stat­ing that its ​“deci­sion to pro­vide lethal chem­i­cals to the Department was based on M7’s polit­i­cal views on the death penal­ty, and not based on eco­nom­ic rea­sons. …The fact that M7’s expres­sion of polit­i­cal views involves a com­mer­cial trans­ac­tion does not dimin­ish M7’s First Amendment rights.” BuzzFeed News reports that Missouri paid the phar­ma­cy $7,178.88 for two vials of pen­to­bar­bi­tal per exe­cu­tion, which it describes as well above mar­ket val­ue, amid con­cerns that the cash pay­ments may have vio­lat­ed fed­er­al tax laws. Analyzing M7’s claim, Bloomberg News colum­nist Noah Feldman described the phar­ma­cy’s con­sti­tu­tion­al argu­ment as ​“deeply flawed.” Feldman writes that ​“there’s an enor­mous dif­fer­ence between speak­ing and act­ing — par­tic­u­lar­ly when that action is a for-prof­it com­mer­cial trans­ac­tion with the gov­ern­ment. … [I]n a democ­ra­cy, it’s cru­cial­ly impor­tant for the gov­ern­ment to dis­close its ven­dors, both to avoid cor­rup­tion and to pro­mote trans­paren­cy.” M7 assert­ed in its fil­ing that releas­ing its iden­ti­ty could sub­ject the phar­ma­cy to harass­ment and boy­cotts, rely­ing on state­ments from a secu­ri­ty con­sul­tant, Lawrence Cunningham, whose pre­vi­ous state­ments about the poten­tial threats to exe­cu­tion drug sup­pli­ers have been exposed as unsup­port­ed or exag­ger­at­ed. ​“The M7 sit­u­a­tion helps demon­strate why it’s so dan­ger­ous to treat cor­po­ra­tions as though they have fun­da­men­tal con­sti­tu­tion­al rights while doing busi­ness,” Feldman writes. ​“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.”

(C. McDaniel and C. Geidner, ​“Pharmacy Argues There’s A First Amendment Right To Secretly Sell Execution Drugs,” BuzzFeed News, September 25, 2016; N. Feldman, ​“Death-Penalty Drugmaker Shouldn’t Be Anonymous,” Bloomberg, September 26, 2016.) See Lethal Injection.

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