June 23, 2011

Victory for free speech and free enterprise in Sorrell v. IMS Health

By Victory for free speech and free enterprise in Sorrell v. IMS Health

Author: Deborah J. La Fetra

The Supreme Court’s decision today in Sorrell v. IMS Health is a victory for free speech and for free enterprise. The case involved a Vermont law that blocked pharmaceutical and data-mining companies from compiling and selling information from publicly accessible prescription databanks, in order to market and promote drugs. The Second Circuit had struck down the law, holding that it violated the commercial speech doctrine (which grants so-called “commercial speech” a lower level of First Amendment protection that other types of speech).  PLF filed this amicus brief in the case, arguing that the law was unconstitutional—but also urging the Court to do away with the “commercial speech doctrine” and hold that all speech, no matter the speaker, is entitled to full First Amendment protection.

Justice Kennedy wrote the 6-3 opinion, holding that the Vermont statute “is designed to impose a specific, content-based burden on protected expression,” and is therefore subject to heightened scrutiny (which it fails). There is no exception to this rule—that government may not restrict speech based on content—in the realm of commercial speech. While the speech at issue in this case “results from an economic motive, so too does a great deal of vital expression.”

The Court noted that although pharmacies could sell the prescription information to private or academic researchers, they could not sell this information to pharmaceutical marketers. This meant that the law “on its face…enacts content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information [and] forbids sale subject to exceptions based in large part on the content of a purchaser’s speech…. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers.” Of course, in commercial speech cases, the government typically argues that the speech isn’t really speech, but conduct, and that the government can prohibit conduct. But the Court rejected this: “The creation and dissemination of information are speech within the meaning of the First Amendment….. Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs.” The decision also rejected Vermont’s claim that restricting the marketers was necessary to prevent physicians from prescribing more expensive brand-name drugs: “Speech remains protected even when it may ‘stir people to action,’ ‘move them to tears,’ or ‘inflict great pain.’ The more benign and, many would say, beneficial speech of pharmaceutical marketing is also entitled to the protection of the First Amendment. If pharmaceutical marketing affects treatment decisions, it does so because doctors find it persuasive. Absent circumstances far from those presented here, the fear that speech might persuade provides no lawful basis for quieting it.”

Justice Breyer’s dissent, unsurprisingly, accused the Court of “return[ing] us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty,” citing Lochner v. New York, natch. But Justice Kennedy replied, “Vermont’s law does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers. The Constitution ‘does not enact Mr. Herbert Spencer’s Social Statics.’ Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting). It does enact the First Amendment.”

This is an important decision because there really is no legitimate basis for distinguishing between commercial speech and other kinds of speech. As I wrote in my 2004 article in the Case Western Reserve Law Review, 

corporations and other business interests play a vital role in the American political economy, thus imbuing corporate speech with inherent value in our democratic society. Rather than treating such speech as a hostile intruder in public debate, it should be embraced as presenting a point of view that may well otherwise remain unexpressed…. [T]he line between commercial and noncommercial speech…is so blurred as to be indistinguishable. With greater frequency and subtlety, new technologies and innovative marketing strategies introduce corporate profit-motive into what otherwise would be fully-protected speech. The current commercial speech doctrine cannot predictably resolve disputes resulting from these new modes of expression.

Although Sorrell did not go far enough to break down the wall that the Court’s commercial speech doctrine has erected between constitutionally protected speech and disfavored, tainted, unprotected, commercial speech, it’s a significant step in the right direction.

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