Sorrell v. IMS Health: Commercial Speech Gets More Protection

The Supreme Court today affirmed the 2d Circuit's decision invalidating Vermont's law forbidding the sale or use for marketing purposes only of pharmacy records that contain the prescribing practices of individual physicians. The opinion is Sorrell v. IMS Health (10-779). Justice Kennedy wrote for the Court; Justice Breyer dissented in an opinion joined by Justices Ginsburg and Kagan. It is an interesting (and, to me, a positive) development that Justice Sotomayor joined the majority.

The Vermont law permits the sale and use of prescriber information collected by pharmacies to many different types of users; it basically forecloses the sale or use only for marketing purposes. Pharmaceutical companies use the data to make sales pitches to physicians for their branded product. Vermont said its reasons to ban this practice were to preserve physician privacy (patient privacy is already protected because the data does not contain the patient's identity) and to lower health care costs. The Court concluded that the law was both content-based and speaker-based, and that in its application it was also viewpoint based. Heightened scrutiny was warranted, and the Court applied the familiar Central Hudson test. While Vermont's objectives were substantial the law did not directly advance the objectives and the fit between the means and ends was so poor that the Court concluded that the law was designed to suppress a disfavored message. The law did almost nothing to protect physician privacy -- the data could be shared with just about anyone except pharma reps. Vermont also claimed that doctors were harassed and pressured by pharma reps; the Court's reply was that doctors could refuse to see such reps. The means selected by Vermont to lower health care costs were impermissible: "The State seeks to achieve its policy objectives through the indirect means of restraining certain speech by certain speakers—that is, by diminishing detailers’ ability to influence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the 'fear that people would make bad decisions if given truthful information' cannot justify content-based burdens on speech" In summary: "The State has burdened a form of protected expression that it found too persuasive. At the same time, the State has left unburdened those speakers whose messages are in accord with its own views. This the State cannot do."

Justice Breyer thought that the question was "whether Vermont’s regulatory provisions work harm to First Amendment interests that is disproportionate to their furtherance of legitimate regulatory objectives." This highly subjective test would require courts to measure two incommensurable values: harm to free speech vs. efficacy of regulation. It's bad enough to have these kinds of tests anywhere in constitutional law (e.g., is the burden of state regulation of interstate commerce clearly excessive in relation to putative local benefits?) but to graft them into free speech law would make judges the practical monitors of speech. Judges are no more equipped than anyone else to decide when the harm to free speech is acceptable, given the benefits of furthering some regulation that the judges think is a good idea.

A good day for free speech.

 

Comments

[Howard Wasserman]

One interesting feature was the Court's suggestion that Vermont went wrong by broadly allowing access and use of the data to everyone but detailers for marketing, but that it might be different if it broadly *banned* access and use accept for a few, specifically identified permissible uses and users. The latter might be tailored enough. But it also would be difficult for legislatures to enumerate uses and users in this way.

[PeetieSwie]

A good day for speech, but a bad day for privacy (for the ability to control information about your actions).