The Supreme Court denied certiorari this week in Harkonen v. United States. Harkonen was convicted of wire fraud related to statements he made in a press release about an FDA-regulated clinical study. In his petition for certiorari, Harkonen raised basic First Amendment issues and an interesting and novel argument relating to the use of p-values in criminal cases.
As a result of the Court’s decision, the 9th Circuit’s decision upholding Harkonen’s conviction stands. The 9th Circuit agreed with the government’s argument that the conviction did not violate the First Amendment because a jury found Harkonen’s speech was false, and thus failed the first prong of the Central Hudson test. This case likely does not materially strengthen the government’s authority when facing First Amendment challenges since it fell squarely into a traditional Central Hudson analysis. However, the Court could have used the case to develop law on the use of p-values or attempted to reconcile Central Hudson and Sorrell v. IMS.