Here's a letter from the Department of Health & Human Services Centers for Medicare & Medicaid Services (CMS) to Humana, Inc., a leading health insurance company; the letter is apparently demanding that Humana stop sending this mailing.
Dear Ms. Miller/Ms Kelly:
CMS has learned that Humana has been contacting enrollees in one or more of its plans and alleging that current health care reform legislation affecting Medicare could hurt “millions of seniors and disabled individuals [who] could lose many of the important benefits and services [emphasis in original document] that make Medicare advantage health plans so valuable.” The message, which is included in an envelope that states it contains “important information about your Medicare Advantage plan—open today!,” makes several other claims about the legislation and how it will be detrimental to enrollees, ultimately urging enrollees to contact their congressional representatives to protest the actions referenced in the letter (see attachment).
CMS is concerned that, among other things, this information is misleading and confusing to beneficiaries, represents information to beneficiaries as official communications about the Medicare Advantage program, and is potentially contrary to federal regulations and guidance for the MA and Part D programs and other federal law, including HIPAA. As we continue our research into this issue, we are instructing you to end immediately all such mailings to beneficiaries and to remove any related materials directed to Medicare enrollees from your website.
Please be advised that we take this matter very seriously and, based upon the findings of our investigation, will pursue compliance and enforcement actions....
As best I can tell, the statements in the Humana mailer contained constitutionally protected opinion. Whether it's "misleading and confusing" naturally depends on how you interpret the mailer, and the various health care proposals. But precisely because the terms are so mushy, political advocacy (as opposed to commercial advertising) can't be restricted simply on the grounds that it's "misleading and confusing." Even knowingly false statements of fact about the government are generally constitutionally protected; it's possible that knowingly false statements of fact about particular legal proposals are not protected, but I've never seen any cases that extend such a false-statements-of-fact First Amendment exception to statements that are merely "misleading and confusing." (I suspect also that if HHS had the goods on why the statements were supposedly outright false, it would have said so.)
It's possible that the claim about the envelope's supposedly "represent[ing] information to beneficiaries as official communications about the Medicare Advantage program" is an allegation of outright knowing falsehood. I couldn't find a copy of the envelope that the HHS letter complains about; if you can point me to it, I'd be much obliged. But the HHS letter complains about the content of the mailing as well as the envelope, and the "instruct[ion]" "to end immediately all such mailings to beneficiaries and to remove any related materials directed to Medicare enrollees from your website" seems to cover the content and not just the envelope.
There's also a separate question about whether "instruct[ing]" a private company to stop certain speech, before any adjudication that the speech is unprotected, is a prior restraint. Presumably threats to prosecute or sue based on assertedly unprotected speech are generally permissible, if the speech is indeed unprotected, but an overt order — which is how the letter is framed — is generally not. But that to me is something of a tangent; I don't see any basis for how the contents of the letter can even be subject to subsequent punishment, much less a prior restraint.
Thanks to InstaPundit for the pointer.