It is claimed in behalf of the plaintiff that the statute to which reference has just been made is unconstitutional as a denial of due process of law in that it does not provide for any notice or hearing, administrative or otherwise, before the Secretary disseminates information of the type described in the statute. It is elementary law, of course, that an order of an administrative agency adjudicating rights or directing someone to do or refrain from doing something must be based on a hearing after due notice. Here, however, the situation is entirely different. The defendants have made no order; they are adjudicating no rights; they are issuing no directions. What they are doing is disseminating information and warning the public against the use of certain medicines and of a certain treatment for internal cancer. There is no basis for requiring a hearing before information can be disseminated.
But beyond that, even in the absence of this statute there would be nothing to prevent the defendants from disseminating information to the public. For example, only recently certain public officials have been urging the public to use a certain innoculation for poliomyelitis. The defendants are performing a public duty when they are urging the use of certain treatments or warning the public against the use of certain treatments. The only purpose of this statute is to place within the express scope of the duties of the Secretary something that was one of his implied functions.
If, however, the contents of the poster were erroneous then the question might arise whether they were libelous. It is a well settled rule of equity that equity does not enjoin a libel or slander, and that the only remedy for libel or slander is an action for damages if the libelous character of a statement to which objection is made can be established. One of the leading cases on this point is the well-considered opinion of the Circuit Court of Appeals for the Second Circuit in American Malting Co. v. Keitel, 209 F. 351. Naturally in a libel suit the question would arise whether there is absolute or conditional privilege, and those questions are not before the Court at this time.
A three-judge court may not be convened merely because a constitutional question is raised in an action for an injunction and a preliminary injunction is applied for. The constitutional question must be a substantial one.
The Court is of the opinion, for the reasons just stated, that there is no substantial constitutional question presented in this case, first, because the statute involved is obviously constitutional; and, second, because the question of constitutionality of that statute hardly arises since the defendants could disseminate information even without statutory authority.
The Court will therefore deny the motion for the convening of a three-judge court and will grant the motion of defendants for summary judgment.
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