Free Speech -- 2011



Sorrell v. IMS Health Inc.   (U.S. Supreme Court)

Constitutionality of Vermont's ban on pharmaceutical marketing using prescription information

Prescription information, without patient names but with prescribing doctor information, is collected by pharmacies and aggregated. The information is ultimately sold to pharmaceutical companies, who in turn use it to target their marketing efforts. While this information is widely used for other purposes, Vermont prohibits its use in marketing prescription drugs. The information publishers and the Pharmaceutical Research and Manufacturers of America (PhRMA) challenged the law as violating their commercial speech rights, because it restricts the right to convey truthful information to others based on its content.

The NAM joined with the Washington Legal Foundation in an amicus brief arguing that courts should not give deference to legislative fact-finding, predictions and judgments relating to speech restrictions that are not content-neutral, but should independently assess those legislative justifications. Where speech restrictions are motivated by legislative hostility to the content of the speech, courts should not automatically defer to the legislature’s rationale. In addition, the legislature’s findings were last-minute additions that were not developed as a result of any fact-finding studies.

We also supported the view that the privacy interests in the prescribing practices of doctors should be balanced with the First Amendment rights of others. Since courts have not given as much weight to business privacy interests, particularly in the closely regulated affairs of doctors, there must be a compelling government interest to justify restrictions on the First Amendment rights of others. We argued that the law was not intended, nor does it, protect the privacy interests of doctors, since it allows a variety of other uses of the data by insurance companies, government employees, drug companies and others.

The Supreme Court ruled 6 to 3 on June 23 that the law is a restriction on speech that is based on the content of the message or the identity of the speaker, and is therefor subject to more rigorous judicial scrutiny than restrictions that are not. The creation and dissemination of information are speech covered by the First Amendment. The majority also ruled that the law infringes commercial speech rights of pharmaceutical companies because it was not narrowly drawn to advance the state’s interest in protecting physicians’ confidentiality. The majority agreed with the NAM's view, finding that the state may not burden protected speech in order to tilt public debate in a preferred direction.


Related Documents:
NAM brief  (March 31, 2011)