Judge Chin also acknowledged the possibility that misbranding prosecutions still could be brought if the government relied on off-label promotion only as evidence of intent to misbrand rather than as a crime itself.

Judge Debra Ann Livingston dissented. She argued the FDA's regulations drive manufacturers to get FDA-approval for all new uses and that this itself prevents doctors from being duped by manufacturer claims that neither have been FDA reviewed nor approved.

Both judges applied a slippery First Amendment standard that gives judges a good deal of leeway to disagree, not the strict standard that ensures reporters cannot be gagged even when they have a story wrong or the story is expected to do much harm. The Supreme Court had used the same slippery standard in Sorrell to invalidate the Vermont law and ducked the broader question of whether the First Amendment requires the strict standard in all cases.

Whether the Supreme Court would take this path is suggested by Justice Anthony Kennedy's opinion for the Sorrell majority. He wrote that 'a 'consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue'...that reality has great relevance in the fields of medicine and public health, where information can save lives." He added, "The choice 'between the dangers of suppressing information, and the dangers of its misuse if it is freely available' is one that the First Amendment makes for us."

In the Caronia case, the government chose not to seek rehearing in the Second Circuit, and it now has through March 4, 2013 to decide whether to seek Supreme Court review. It would not be surprising if the government chooses to live with the lumps it got from the Second Circuit. It has a lot more to lose in the Supreme Court.

Thomas R. Julin, Jamie Z. Isani, and Patricia Acosta are lawyers in the Miami office of Hunton & Williams LLP. They designed and litigated the First Amendment challenge to the law invalidated by Sorrell v. IMS Health Inc.