In a 6-3 decision today,
the Supreme Court struck down Vermont’s Prescription Confidentiality Law, finding it to unconstitutionally burden the speech of pharmaceutical marketers and data miners without adequate justification.
Vermont's law which provided that unless the prescribing doctor consented, pharmacies and similar entities could not sell identifying information regarding the doctor's practices to pharmaceutical manufacturers or for other marketing purposes. (Individual patient confidentiality remains protected; this is about the doctor.) According to the three dissenting Justices (Breyer, Ginsburg, and Kagan), this prohibition could have been upheld on any number of constitutional grounds:
The Vermont statute before us adversely affects expression in one, and only one, way. It deprives pharmaceutical and data-mining companies of data, collected pursuant to the government’s regulatory mandate, that could help pharmaceutical companies create better sales messages. In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special “heightened” standard of review when reviewing such an effort. And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech.
For the six Justices in the majority (the five you'd expect, plus Sotomayor),
speech in aid of pharmaceutical marketing is protected by the Free Speech Clause, and the Vermont's law was insufficiently justified. But first things first (though it's late in the opinion), is this speech at all?
The State also contends that heightened judicial scrutiny is unwarranted in this case because sales, transfer, and use of prescriber-identifying information are conduct, not speech. Consistent with that submission, the United States Court of Appeals for the First Circuit has characterized prescriber-identifying information as a mere “commodity” with no greater entitlement to First Amendment protection than “beef jerky.” In contrast the courts below concluded that a prohibition on the sale of prescriber-identifying information is a content-based rule akin to a ban on the sale of cookbooks, laboratory results, or train schedules.
This Court has held that the creation and dissemination of information are speech within the meaning of the First Amendment . See, e.g., Bartnicki at 527 (“[I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct”)... 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. There is thus a strong argument that prescriber-identifying information is speech for First Amendment purposes.
And here's the test:
Under a commercial speech inquiry, it is the State’s burden to justify its content-based law as consistent with the First Amendment. To sustain the targeted, content-based burden §4631(d) imposes on protected expression, the State must show at least that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest. There must be a “fit between the legislature’s ends and the means chosen to accomplish those ends.” As in other contexts, these standards ensure not only that the State’s interests are proportional to the resulting burdens placed on speech but also that the law does not seek to suppress a disfavored message.
And these ends were insufficiently tailored:
Under Vermont’s law, pharmacies may share prescriber-identifying information with anyone for any reason save one: They must not allow the information to be used for marketing. Exceptions further allow pharmacies to sell prescriber-identifying information for certain purposes, including “health care research.” §4631(e). And the measure permits insurers, researchers, journalists, the State itself, and others to use the information.
... Perhaps the State could have addressed physician confidentiality through “a more coherent policy.” ...Instead, Vermont made prescriber-identifying information available to an almost limitless audience. The explicit structure of the statute allows the information to be studied and used by all but a narrow class of disfavored speakers. Given the information’s widespread availability and many permissible uses, the State’s asserted interest in physician confidentiality does not justify the burden that §4631(d) places on protected expression.
Oh, yeah. Doctors need to stop whining:
The State also contends that §4631(d) protects doctors from “harassing sales behaviors.” “Some doctors in Vermont are experiencing an undesired increase in the aggressiveness of pharmaceutical sales representatives,” the Vermont Legislature found, “and a few have reported that they felt coerced and harassed.” It is doubtful that concern for “a few” physicians who may have “felt coerced and harassed” by pharmaceutical marketers can sustain a broad content-based rule like §4631(d). Many are those who must endure speech they do not like, but that is a necessary cost of freedom....
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.... There are divergent views regarding detailing and the prescription of brand-name drugs. Under the Constitution, resolution of that debate must result from free and uninhibited speech. As one Vermont physician put it: “We have a saying in medicine, information is power. And the more you know, or anyone knows, the better decisions can be made.”
And because it's Justice Kennedy writing, you should know by now that the conclusion's going to have its fair share of chest-puffing about Big, Important Ideas:
The capacity of technology to find and publish personal information, including records required by the government, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure. In considering how to protect those interests, however, the State cannot engage in content-based discrimination to advance its own side of a debate.... Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers.
The dissenting justices, on the other hand, wouldn't have looked at this under rigorous speech analysis in the first place:
The Court has also normally applied a yet more lenient approach to ordinary commercial or regulatory legislation that affects speech in less direct ways. In doing so, the Court has taken account of the need in this area of law to defer significantly to legislative judgment—as the Court has done in cases involving the Commerce Clause or the Due Process Clause. “Our function” in such cases, Justice Brandeis said, “is only to determine the reasonableness of the legislature’s belief in the existence of evils and in the effectiveness of the remedy provided.” New State Ice Co. v. Liebmann , 285 U. S. 262, 286–287 (1932) (dissenting opinion); Williamson v. Lee Optical of Okla., Inc. , 348 U. S. 483, 488 (1955) (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it”); United States v. Carolene Products Co. , 304 U. S. 144, 152 (1938) (“[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators”).
To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial message) would work at cross-purposes with this more basic constitutional approach.
And bad things happen that way. Lawyers and law students will smile when they see the citation here:
In short, the case law in this area reflects the need to ensure that the First Amendment protects the “marketplace of ideas,” thereby facilitating the democratic creation of sound government policies without improperly hampering the ability of government to introduce an agenda, to implement its policies, and to favor them to the exclusion of contrary policies. To apply “heightened” scrutiny when the regulation of commercial activities (which often involve speech) is at issue is unnecessarily to undercut the latter constitutional goal. The majority’s view of this case presents that risk.
Moreover, given the sheer quantity of regulatory initiatives that touch upon commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitutionalization of economic theories preferred by individual jurists. See Lochner v. New York , 198 U. S. 45, 75–76 (1905) (Holmes, J., dissenting). By inviting courts to scrutinize whether a State’s legitimate regulatory interests can be achieved in less restrictive ways whenever they touch (even indirectly) upon commercial speech, today’s majority risks repeating the mistakes of the past in a manner not anticipated by our precedents.
The dissenting justices go on to argue that even under Free Speech precedent, this law was sufficiently justified. But as with so many other cases under the Roberts Court, when it's Corporations v. Individuals, it's the former which wins. Again.