# Stock v. Gray

> District Court, W.D. Missouri · March 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10242778

## Case

- **Court:** District Court, W.D. Missouri
- **Decided:** March 22, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10242778

## How later opinions describe it (automated extraction)

- holding the Lanham Act’s bar on the registration of “immoral” or “scandalous” trademarks discriminates on the basis of viewpoint and so violates the First Amendment, noting “[t]he Court’s finding of viewpoint bias end[s] the matter.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

ASHLEY STOCK, )
)
Plaintiff, )
)
v. ) No. 2:22-CV-04104-DGK
)
JAMES L. GRAY, III, et al., )
in their official capacities as officers or )
members of the Missouri Board of Pharmacy, )
)
Defendants. )

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

This lawsuit arises from the State of Missouri enacting a law forbidding pharmacists from
contacting a prescribing doctor or patient “to dispute the efficacy of ivermectin tablets or
hydroxychloroquine sulfate tablets for human use” unless the doctor or patient asks the
pharmacist about these drugs’ efficacy first. Mo. Rev. Stat. § 338.055.7 (2022) (emphasis
added). Under the law, a pharmacist who violates the statute—for example, by on her own
initiative alerting a doctor or patient that the FDA has not approved either drug to treat a
particular disease—may face disciplinary action, including the potential loss of her license. On
the other hand, a pharmacist who on her own initiative contacts a doctor or patient to tout the
efficacy of either drug for a purpose the FDA has not approved faces no such sanction. Plaintiff,
a pharmacist, contends the statute violates the First Amendment.
Now before the Court is Plaintiff’s Motion for a Preliminary Injunction. ECF No. 7.
Holding the law unconstitutionally restricts Plaintiff and other pharmacists’ speech on the basis
of their viewpoint the motion is GRANTED. The Court enjoins Defendants in their official
capacities as officers or members of the Missouri Board of Pharmacy from reviewing,
investigating, prosecuting, adjudicating, or enforcing violations of the second sentence of
Missouri Revised Statute § 338.055.7.1 Defendants’ 12(b)(6) motion to dismiss, ECF No. 19, is
also DENIED.
Background

The relevant facts are set forth in the Verified Complaint, ECF No. 1, and are not in
dispute.2 These facts are as follows.
Defendants are officers or members of the Missouri Board of Pharmacy (the “Board”),
each of whom is being sued in his or her official capacity. Created in 1909, the Board is a
creature of Missouri statute, governed principally by the Missouri Pharmacy Practice Act.
Among the Board’s primary duties are “[i]nvestigating complaints . . . against any licensee or
registrant,” and “[d]isciplining licensees which may include, public censure, probation,
suspension or revocation of a licensee/registrant . . . .” Board investigations “may be based on
public complaints, information from other state and/or federal agencies, or violations discovered
by the Board.” Public complaints “may be based upon personal knowledge or upon information

and belief.” 20 CSR 2220-2.050(2).
Plaintiff Ashley Stock (“Stock”) is a Missouri-licensed pharmacist in good standing
subject to oversight and discipline by the Board. Stock is employed by a pharmacy in St. Louis,
Missouri. She is a citizen of Missouri who is domiciled in Fenton, Missouri.

1 The second sentence states, “A pharmacist shall not contact the prescribing physician or the patient to dispute the
efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets for human use unless the physician or patient
inquires of the pharmacist about the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets.” Mo. Rev.
Stat. § 338.055.7 (2022).

2 The Court has ruled on the motion without holding an evidentiary hearing because Plaintiff has filed a verified
complaint, neither party has requested an evidentiary hearing, and there do not appear to be any disputes of fact
relevant to the legal issues here. Further, in the course of briefing both the motion for a preliminary injunction and
the motion to dismiss, both parties have been given a fair opportunity to present their views. See Kaepa, Inc. v
Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996).
Stock’s job responsibilities include dispensing prescription medications and counseling
patients on the safe use of such medications based on her professional expertise. Since March
2020, in her job as a retail pharmacist, Stock has received prescriptions from physicians for
hydroxychloroquine and ivermectin for her to fill and dispense to patients at the pharmacy.

Since that time, she has had conversations with various doctors and patients during which she
disputed the efficacy of both hydroxychloroquine and ivermectin for human use as a COVID-19
treatment. She has also contacted the prescribing physicians to discuss, debate, and dispute the
efficacy of hydroxychloroquine and ivermectin for human use as a COVID-19 treatment and the
dosage amounts of the prescriptions.
According to the American Pharmacists Association’s Code of Ethics for Pharmacists,
pharmacists must “help individuals achieve optimum benefit from their medications”; they must
“place[] concern for the well-being of the patient at the center of professional practice”; they
must “tell the truth and . . . act with conviction of conscience”; they must “maintain knowledge
and abilities as new medications, devices, and technologies become available and as health

information advances”; and they should “encourag[e] patients to participate in decisions about
their health.” American Pharmacists Association, Code of Ethics, https://aphanet.
pharmacist.com/code-ethics [https://web.archive.org/web/20220313062553/https://aphanet.
pharmacist.com/code-ethics].
Stock believes that counseling patients and doctors to the best of her professional
judgment is required as a matter of professional ethics, even when that means contacting the
patient or doctor to dispute the efficacy of a given medication.
Patients and doctors have previously thanked Stock after she initiates contact with them
to provide guidance or to suggest alterative pharmaceutical options that are more effective.
The drugs at issue: Hydroxychloroquine and Ivermectin.
Hydroxychloroquine is a structural analog to chloroquine, an antimalarial drug.
Hydroxychloroquine was developed in the 1940s for human consumption as an antimalarial
medication. The Food and Drug Administration (“FDA”) has indicated use of the drug for the

treatment of malaria, certain drug-resistant parasites uncommon in the United States, rheumatoid
arthritis, and lupus. It is not approved by the FDA for the treatment of COVID-19. The FDA
has not approved any animal drug product that contains hydroxychloroquine. The FDA cautions
against the use of hydroxychloroquine for the treatment of COVID-19 outside of a hospital
setting or clinical trials.
Early in the COVID-19 pandemic, as doctors were experimenting with treatments for the
novel coronavirus, health authorities in India, China, South Korea, and Italy recommended
chloroquine for the treatment of COVID-19. On March 18, 2020, the World Health
Organization announced that chloroquine and hydroxychloroquine would be among the four
drugs studied as part of the multinational solidarity clinical trial.

On March 19, 2020, then President Trump encouraged the use of hydroxychloroquine
during a national press conference. Subsequently, there was a massive increase in demand for
the drug, and speculative procurement of hydroxychloroquine occurred across the country.
On April 24, 2020, the FDA cautioned against using hydroxychloroquine outside a
hospital setting or clinical trial after reviewing case reports of adverse effects including
ventricular tachycardia, ventricular fibrillation, and in some cases death. On June 15, 2020, the
FDA revoked the emergency use authorization, citing consultation with the Biomedical
Advanced Research and Development Authority that led them to conclude that “it is no longer
reasonable to believe that oral formulations of hydroxychloroquine (HCQ) and chloroquine (CQ)
may be effective in treating COVID‑19.” Coronavirus (COVID-19) Update: FDA Revokes
Emergency Use Authorization for Chloroquine and Hydroxychloroquine, Food and Drug
Admin., https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-
fda-revokes-emergency-use-authorization-chloroquine-and

[https://web.archive.org/web/20220624134111/https://www.fda.gov/news-events/press-
announcements/coronavirus-covid-19-update-fda-revokes-emergency-use-authorization-
chloroquine-and]. Moreover, because of “ongoing serious cardiac adverse events and other
potential serious side effects, the known and potential benefits of chloroquine and
hydroxychloroquine no longer outweigh the known and potential risks for the authorized use.”
Id.
In November 2020, a U.S. National Institutes of Health clinical trial evaluating the safety
and effectiveness of hydroxychloroquine for the treatment of adults with COVID-19 formally
concluded that the drug provided no clinical benefit for COVID-19 treatment and recommended
against its use. But telehealth organizations have prescribed hydroxychloroquine, frequently

doing so across state lines.
Stock does not believe hydroxychloroquine is an effective treatment for COVID-19
compared to available alternatives.
Ivermectin is an antiparasitic drug originally marketed by Merck that has been used in
humans and animals since the 1970s. Ivermectin is not approved by the FDA for the treatment
of COVID-19.
Scientists studied ivermectin as a potential COVID-19-inhibiting drug. Some in vitro
drug screening studies early in the pandemic showed that ivermectin has an antiviral effect on
certain positive-sense single-strand RNA viruses, including SARS-CoV-2, the virus that causes
COVID-19. Follow up studies concluded that while ivermectin could inhibit replication of
SARS-CoV-2, the doses needed would be significantly greater than humans could safely ingest.
Nevertheless, in December of 2020, Dr. Pierre Kory testified before the Senate Homeland
Security and Government Affairs Committee that ivermectin is a “miracle drug” for the

treatment of COVID-19. Numerous lawmakers also endorsed Dr. Kory’s testimony and
promoted ivermectin as a COVID-19 drug. Subsequently, in January of 2021, the National
Institutes of Health released Treatment Guidelines that suggest there is insufficient evidence of
ivermectin’s effects to recommend for or against it.
A variety of reputable sources advise against using ivermectin to prevent or treat
COVID-19. For example, in early 2021, the European Medicines Agency (“EMA”)
recommended against using ivermectin for the prevention or treatment of COVID-19 outside
randomized clinical trials. Also in early 2021, Merck issued a statement that attempting to use
ivermectin to treat COVID-19 may be unsafe. In March of 2021, the World Health Organization
(“WHO”) stated that ivermectin should not be used for the treatment of COVID-19. WHO

advises that ivermectin only be used to treat COVID-19 within clinical trials.
Despite these warnings, prescriptions for ivermectin ballooned, reaching 88,000
prescriptions dispensed during the week of August 13, 2021 compared to an average of 3,600
weekly prescriptions before 2020. Telehealth companies now have dedicated pages for
ivermectin that advertise the ease of obtaining a prescription of the drug. These prescriptions are
off-label, and many patients refuse to divulge what the prescriptions are for.
Many pharmacists who are skeptical of ivermectin’s effectiveness as a COVID-19 cure
try to consult with patients about why they were prescribed ivermectin and/or refuse to fill the
prescriptions. Stock does not believe that ivermectin is an effective treatment for COVID-19
compared to available alternatives.
Mo. Rev. Stat. § 338.055.7
Last year the State of Missouri enacted a statute which provided that:

The [Missouri Board of Pharmacy] shall not deny, revoke, or
suspend, or otherwise take any disciplinary action against, a
certificate of registration or authority, permit, or license required
by this chapter for any person due to the lawful dispensing,
distributing, or selling of ivermectin tablets or hydroxychloroquine
sulfate tablets for human use in accordance with prescriber
directions. A pharmacist shall not contact the prescribing
physician or the patient to dispute the efficacy of ivermectin tablets
or hydroxychloroquine sulfate tablets for human use unless the
physician or patient inquires of the pharmacist about the efficacy
of ivermectin tablets or hydroxychloroquine sulfate tablets.

Mo. Rev. Stat. § 338.055.7 (2022) (second sentence italicized for emphasis).
Violating this statute would subject Stock to professional discipline.
Missouri Revised Statute § 338.140.1 vests the Board with its rulemaking power and the
“power to employ an attorney to conduct prosecutions or to assist in the conduct of prosecutions
pursuant to sections [of § 338, including § 338.055.7].” It also empowers the Board to “issue
letters of reprimand, censure or warning . . . for any violations that could result in disciplinary
action,” and, at its sole discretion, “enter into a voluntary compliance agreement . . . in lieu of
board discipline,” where such agreements “shall be a public record.” Mo. Rev. Stat. § 338.140.6.
Thus, as with all rules and regulations of the pharmaceutical profession in Missouri, the Board
will have authority to investigate putative violations of § 338.055.7 and the authority to
prosecute or cause the prosecution of enforcement actions against Missouri-licensed pharmacists
whom the Board believes to be in violation of the rule.
In furthering its functions of enforcing and investigating alleged violations of disciplinary
rules, the Board receives and investigates complaints lodged by any person, including any
member of the public, 20 CSR 2220-2.050(1), with either knowledge of the alleged violation or
who may make the complaint based on information and belief, 20 CSR 2220-2.050(2).

Submitting a complaint requires only filling out a simple single-page form available on the
Board’s website and submitting it to the Board by email, fax, or mail. Upon receiving a
complaint, the Board sends notice to the pharmacist accused of misconduct. Mo. Rev. Stat. §
338.055.1. The Board then “may cause a complaint to be filed with the administrative hearing
commission as provided by chapter 621.” Mo. Rev. Stat. § 338.055.2. The administrative
hearing commission will hold a hearing and convey its record and findings, along with its non-
binding recommendation regarding discipline. Mo. Rev. Stat. § 621.110. Within thirty days
after receipt of the record of the proceedings before the commission and the findings of fact,
conclusions of law, and recommendations, if any, of the commission, the Board will set the
matter for hearing and notify the respondent-pharmacist of the time and place of the hearing. Id.

At or after the hearing, the Board may issue the disciplinary measure it sees fit, including
censure, suspension, or revocation of the respondent-pharmacist or his or her license.
Stock plans to continue working as a retail pharmacist in Missouri, and through her work,
she will likely again confront a prescription for either hydroxychloroquine or ivermectin as a
COVID-19 treatment. Should she receive either such prescription, she intends, consistent with
her past practice, to contact the prescriber to discuss, debate, or dispute the efficacy of the drugs,
both generally and relative to current alternatives and to counsel the patient about efficacy and
alternatives.
Stock does not wish to be subjected to a disciplinary investigation by the Board or to
disciplinary proceedings in front of the Board or an administrative hearing commission. Stock
also does not wish to be subjected to disciplinary sanctions by the Board. A disciplinary
investigation would harm Stock’s professional reputation, available job opportunities, and ability

to earn a living in her chosen profession. Stock will be forced to censor herself, and act against
her professional judgment of the best possible course of treatment for a patient to protect herself
from potential Board sanction.
But for § 338.055.7, Stock would be able to freely fulfill her professional duties and
protect patients by communicating her concerns without the fear of disciplinary consequences for
expressing her professional opinion. Even if Defendants were to attempt to assure Stock that
they would not enforce § 338.055.7 as written, Stock’s speech would be chilled, in that she
would not feel comfortable speaking freely with prescribing physicians and patients about the
drugs and would still reasonably fear the effects of complaints or other professional liability.
Stock filed this lawsuit under 42 U.S.C. § 1983 arguing the statute violates the First

Amendment as incorporated and applied to the states by the Fourteenth Amendment. The
Verified Complaint brings a single claim for unconstitutional infringement of free speech.
Discussion
I. Stock possesses standing to seek an injunction against all enforcement of the second
sentence of § 338.055.7.

Defendants contend that Stock lacks standing to seek an injunction against enforcement
of § 338.055.7 against other Missouri-licensed pharmacists because the Verified Complaint: (1)
does not plead any injuries to pharmacists other than herself; and (2) pleads an as-applied
challenge (as opposed to a facial challenge) to the statute under § 1983.
These arguments are unpersuasive. First, the Verified Complaint does plead that other
Missouri pharmacists face the same injury to their First Amendment rights as Stock. See, e.g.,
Compl. ¶ 3 (stating the statute “forbids pharmacists [not just Plaintiff] from ‘contact[ing] the
prescribing physician or the patient to dispute the efficacy of ivermectin tablets or

hydroxychloroquine sulfate tablets for human use’” even though “pharmacists in Missouri are as
entitled as every other citizen to express their viewpoints on the efficacy of certain drugs;” and
“Section 338.055.7 threatens Missouri pharmacists with professional liability if they
communicate views that the state disagrees with”); ¶ 51 (asserting the statute “seeks to advance
one side of the debate by both protecting pharmacists from Board sanction for filling
prescriptions for hydroxychloroquine and ivermectin, and forbidding pharmacists from
communicating any professional opinion against the efficacy of the drugs”); ¶ 53 (“While
pharmacists will now be protected from disciplinary action for dispensing ivermectin tablets or
hydroxychloroquine sulfate tablets, under the new law, pharmacists such as Stock face
disciplinary action, including the potential loss of their license for communicating with

prescribers and counseling patients about either drug in certain ways.”); ¶ 54 (“Stock, and all
pharmacists in Missouri, now face the impossible—and constitutionally impermissible—
conundrum of deciding whether to endanger their livelihood when choosing whether to speak in
a manner that is both vital to their professional duties to patients and protected by the First
Amendment”); ¶ 67 (noting the Board has the authority to prosecute “Missouri-license
pharmacists whom the Board believes to be in violation of the rule”) (emphasis added
throughout).
Second, as the Eighth Circuit has held in the context of another First Amendment case,
“the distinction between facial and as-applied challenges is not so well defined that it has some
automatic effect or that it must always control the pleadings or disposition in every case
involving a constitutional challenge.” Free the Nipple – Springfield Residents Promoting Equal.
v. City of Springfield, 923 F.3d 508, 509 n.2 (2019) (quoting Citizens United v. FEC, 558 U.S.
310, 331 (2010)). Where, as here, the complaint seeks a declaration that the statute is
unconstitutional,3 “[t]he important inquiry is whether ‘the claim and the relief that would follow .

. . reach beyond the particular circumstances’” of the plaintiff. Id. (quoting Doe v. Reed, 561
U.S. 186, 194 (2010)). In this case, it is plain that the claim and relief sought by Stock goes
beyond her and extends to all Missouri-licensed pharmacists, so the challenge raised by the
Verified Complaint is a facial challenge.
Third, even if it were not a facial challenge, Plaintiff would still have standing to seek an
injunction against all enforcement of the second sentence of § 338.055.7. While “the usual rule
is that a party may assert only a violation of its own rights . . . in the First Amendment context,
litigants . . . are permitted to challenge a statute not because their own rights of free expression
are violated, but because of a judicial prediction or assumption that the statute’s very existence

may cause others not before the court to refrain from constitutionally protected speech or
expression.” Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392-93 (1988) (cleaned up)
(allowing two Virginia booksellers to raise the First Amendment claims of Virginia bookbuyers).
The exception applies to this case as well. On the existing record, the Court can safely predict
that § 338.055.7 may cause other Missouri-licensed pharmacists who are not before the Court to
refrain from engaging in constitutionally protected speech, namely reaching out to patients and
disputing the efficacy of these medicines for use in treating or preventing COVID-19, for fear of
receiving professional discipline from Defendants.

3 The Complaint seeks “[a] declaratory judgment that the second sentence of § 338.055.7 facially violates the First
and Fourteenth Amendments to the United States Constitution.” Request for Relief ¶ A.
II. The motion for a preliminary injunction is granted.
In determining whether to grant a preliminary injunction, the Court typically considers:
(1) the threat of irreparable harm to the movant; (2) the balance between this harm and any injury
that granting the injunction will inflict on the non-moving party; (3) the probability the moving

party will succeed on the merits; and (4) the public interest. Rodgers v. Bryant, 942 F.3d 451,
455 (8th Cir. 2019). A party seeking to enjoin a duly enacted state statute, however, must
demonstrate that they are “likely to prevail on the merits.” Id. (quoting Planned Parenthood
Minn. v. Rounds, 530 F.3d 724, 731–32 (8th Cir. 2008) (en banc) (emphasis added). This is
more than the “fair chance” of success that is typically required for a preliminary injunction. Id.
“The higher bar reflects the idea that governmental policies implemented through legislation and
developed through presumptively reasoned democratic processes are entitled to a higher degree
of deference and should not be enjoined lightly.” Id. at 455–56 (cleaned up). Finally, “if a party
shows a likely violation of his or her First Amendment rights, the other requirements for
obtaining a preliminary injunction are deemed to have been satisfied.” Id. at 456.4

In this case, the Court holds Plaintiff is likely to succeed on the merits because the second
sentence of § 338.055.7 infringes the free speech rights of Plaintiff and other Missouri-licensed
pharmacists by threatening to impose liability based on the viewpoint of their speech. The
statute prohibits pharmacists from initiating contact to express a particular view, namely, a view
disputing the efficacy of the drugs. It does not prohibit pharmacists from initiating contact to
tout, endorse, or acclaim the drugs, thus it is taking sides in a politically charged debate about the
drugs efficacy. This is viewpoint discrimination, which is fatal to the statute’s constitutionality.

4 The Court notes Defendants’ brief fails to cite Rodgers v. Bryant, the controlling caselaw on the preliminary
injunction standard applicable here. The Court reminds counsel for Defendants to ensure he is citing relevant
controlling caselaw to the Court.
Defendants’ arguments that the statute does not engage in viewpoint discrimination is
thoroughly unpersuasive. Defendants suggest the second sentence of the statute is not viewpoint
discrimination because it regulates conduct, not speech. Suggestions in Supp. of Mot. to Dismiss
at 10–11, ECF No. 19–1. This argument is unavailing because the statute does not prohibit

initiating contact with patients or doctors (a regulation of conduct). Nor does it prohibit
initiating contact with patients or doctors to speak on any matter at all (a content-neutral
regulation of speech). Nor does it prohibit initiating contact with patients or doctors to talk about
a particular subject matter, such as any discussion of either drug (a content-based regulation of
speech). Rather, the provision bans initiating contact only if the contact is to express the
viewpoint that the drugs are not effective for human use. Hence, it is viewpoint discrimination.
Defendants’ other claim—that the statute’s ban on contacting a patient to “dispute the
efficacy” of the drugs is not a ban on a viewpoint doubting effectiveness, but rather a ban on
pharmacists engaging in arguments about the effectiveness of these drugs generally—is even less
persuasive. Defendants argue “[d]isputing the efficacy of these drugs can involve either

promoting or discouraging use of these drugs.” Reply Suggestions in Supp. of Mot. to Dismiss
at 7, ECF No. 23. Thus, according to Defendants, “the statute says pharmacists cannot initiate an
argument with patients and physicians.” Id.
As a threshold matter, this argument defies common sense. A pharmacist calls a patient
or prescribing doctor to alert them to a potential problem with a prescription. For example, a
pharmacist may call the prescribing doctor to alert him that a widely used drug is no longer
recommended because of new information about side effects, or he may call a patient to warn
about a potential drug interaction. A pharmacist does not call to applaud a doctor for prescribing
a drug or congratulate a patient for taking one. This being the case, Defendants’ claim that the
legislature has enacted a law barring a pharmacist from calling a doctor or patient to tout a drug
is hard to swallow.
More importantly, Defendants’ argument is inconsistent with the plain meaning of the
statute. When interpreting a state statute, a federal court applies that state’s rules of statutory

construction. Behlmann v. Century Sur. Co., 794 F.3d 960, 963 (8th Cir. 2015). “Under
Missouri law, ‘the seminal rule of statutory construction is to ascertain the intent of the
legislature from the language used and to consider the words used in their plain and ordinary
meaning.’” Missouri Beverage Co., Inc. v. Shelton Bros., Inc., 669 F.3d 873, 877 (8th Cir. 2012)
(quoting St. Louis Cnty. v. Prestige Travel, Inc., 344 S.W.3d 708, 713–14 (Mo. banc 2011)).
Missouri courts interpret statutes “in a way that is not hyper-technical, but instead, is reasonable
and logical and gives meaning to the statute.” Ben Hur Steel Worx, LLC v. Dir. of Revenue, 452
S.W.3d 624, 626 (Mo. banc 2015). When the language is clear, courts must give effect to its
plain meaning. Id.
The relevant part of the statute at issue here reads: “A pharmacist shall not contact the

prescribing physician or the patient to dispute the efficacy of ivermectin tablets or
hydroxychloroquine sulfate tablets for human use unless the physician or patient inquires of the
pharmacist about the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets.” The
plain and ordinary meaning of this sentence is that a pharmacist cannot initiate contact with a
doctor or patient to tell them that ivermectin or hydroxychloroquine does not work in humans
unless the doctor or patient first asks the pharmacist whether it works. This interpretation is
confirmed by a common definition of “dispute,” which is “to question the truth or validity of;
doubt.” Dispute, The American Heritage Dictionary (5th ed. 2018). It also dovetails with the
purpose of the prior sentence5 (which the legislature enacted at the same time) which prohibits
the Board from taking any action against a pharmacist who dispenses ivermectin or
hydroxychloroquine. Finally, this reading is consistent with the legislature’s apparent purpose in
enacting § 338.055.7 as a whole: to insulate ivermectin or hydroxychloroquine from criticism.

Thus, the Court concludes “to dispute the efficacy” means to question the validity of, or
doubt, the drugs’ effectiveness. And because the statute only prohibits criticizing the efficacy of
the drugs, it engages in viewpoint restriction.
Since the statute engages in viewpoint discrimination, that is the end of the matter.6
Iancu v. Brunetti, 139 S. Ct. 2294, 2302 (2019) (holding the Lanham Act’s bar on the
registration of “immoral” or “scandalous” trademarks discriminates on the basis of viewpoint
and so violates the First Amendment, noting “[t]he Court’s finding of viewpoint bias end[s] the
matter.”). “The government may not discriminate against speech based on the ideas or opinions
it conveys.” Id. “Discrimination against speech because of its message is presumed to be
unconstitutional.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995).

Government restrictions “based on viewpoint are prohibited.” Minn. Voters All. v. Mansky, 138
S. Ct. 1876, 1885 (2018).

5 It states:

The [Missouri Board of Pharmacy] shall not deny, revoke, or suspend, or otherwise take any
disciplinary action against, a certificate of registration or authority, permit, or license required by
this chapter for any person due to the lawful dispensing, distributing, or selling of ivermectin
tablets or hydroxychloroquine sulfate tablets for human use in accordance with prescriber
directions.

Mo. Rev. Stat. § 338.055.7.

6 The Court recognizes both parties have raised additional First Amendment arguments, but the Court need not
consider them because its holding that the statute engages in viewpoint discrimination is dispositive. See Rodger,
942 F.3d at 454 n.2 (affirming issuance of a statewide preliminary injunction of a law banning certain kinds of
begging and declining to address the plaintiffs’ additional argument that the law was also void for vagueness).
The Court concludes Stock is likely to demonstrate that the statute is unconstitutional.
Because Stock has demonstrated a likelihood of success on her First Amendment claim, the other
requirements for obtaining a preliminary injunction are deemed satisfied. Rodgers, 942 F.3d at
456.

Conclusion
For the reasons discussed above, Plaintiff’s motion for a preliminary injunction is
GRANTED. Defendants are prohibited from reviewing, investigating, prosecuting, adjudicating,
or enforcing violations of the second sentence of Missouri Revised Statute § 338.055.7 until after
a final order is entered.
Additionally, for the reasons discussed above, Defendants’ motion to dismiss is
DENIED. The Court holds the Verified Complaint states a claim that the second sentence of §
338.055.7 is unconstitutional; the Verified Complaint pleads sufficient factual matter showing
Plaintiff’s claim for relief is plausible on its face; and Plaintiff has standing to seek an injunction
prohibiting all enforcement of the second sentence of § 338.055.7.

IT IS SO ORDERED.
Date: March 22, 2023 /s/ Greg Kays______________________
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10242778. Public record. Not legal advice.