This article first appeared in the St. Louis Beacon, June 23, 2011 - Venturing into a new frontier of First Amendment law, the Supreme Court on Thursday gave constitutional protection to those seeking to use the vast stores of data collected by modern information technology.
The court ruled 6-3 that Vermont could not stop pharmaceutical companies from obtaining data on doctors' prescription-writing practices -- data the companies used to market their more expensive, brand-named drugs to the doctors. Vermont had tried to block this data mining of prescription information to protect the privacy of the doctor-patient relationship and to keep down health-care costs.
In deciding Sorrell vs. IMS Health Inc., Justice Anthony M. Kennedy wrote that the First Amendment provides heightened protection "for disfavored speech by disfavored speakers." In the Vermont case, the disfavored speech was the marketing of brand-name drugs and the disfavored speakers were the pharmaceutical companies.
Mark Sableman, a media lawyer at Thompson Coburn LLP, said in an email that the "decision takes a nice step forward in recognizing information (data) as protected by the First Amendment." Sableman helped write a friend of the court brief urging upon the court the view that data collection is protected like the collection of news.
Many legal cases lie ahead involving the clash between individual privacy and the use of the vast electronic storehouses of information collected by the government and by private firms on the internet. News organizations told the court that their journalism increasingly relies on data analysis. And the U.S. Chamber of Commerce pointed to the importance of "behavioral advertising" used by advertisers to target consumers based on their internet search history.
Sableman pointed out that Kennedy was careful not to prejudge the future disputes. "Kennedy took special steps to avoid any pronouncements regarding personal privacy and how it can or cannot be regulated," Sableman wrote. "So he limits his holding to a viewpoint discrimination, meaning that future data rights cases that don't involve discrimination are not really affected."
Kennedy himself put it this way: "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."
Despite this limitation, the decision is further evidence of the Roberts Court's strong First Amendment tendencies and confirmation of Kennedy's leading role in modern First Amendment law.
Sableman, a civil libertarian, called the Kennedy opinion a "tour de force of First Amendment law," adding, "this decision will even more fully cement Justice Kennedy's positions as one of the great expounders and developers of First Amendment law. The decision is filled with eloquent statements about the purpose and importance of free speech in American constitutional law. We will be seeing quotes from this decision for many years in future briefs and arguments about the First Amendment and what it means, especially with respect to limitations on information gathering and use."
The 6-3 voting alignment was similar to the First Amendment cases involving campaign finance where the more conservative justices take the stronger First Amendment position. In the Vermont case, Justice Sonia Sotomayor joined the five more conservative justices in the majority. The conservative, pro-free speech alignment emerges where speech and money are intertwined or when conservative speakers are disfavored.
Justice Stephen Breyer warned in dissent that the court had opened the way to a flood of challenges to government regulations involving speech, such as regulations of the Food and Drug Administration. One case where the decision could be relevant would be the tobacco industry's challenge to the new, graphic warning labels on cigarette packs. Breyer suggested that the case could even mark a return to the bad, old days of the so-called "Lochner Era" when the court consistently ruled in favor or the rights of big corporations over workers.
He suggested that the case could even mark a return to the bad, old days of the so-called "Lochner Era" when the court consistently ruled in favor or the rights of big corporations over workers.
"At best," wrote Breyer, "the court opens a Pandora's box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message.... At worst, it re-awakens Lochner's pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue." Justices Ruth Bader Ginsburg and Elena Kagan joined him.
Unusual Bedfellows
The case brought together strange bedfellows. Favoring the law were consumer groups, labor unions, privacy advocates and health advocates. Opposing the law were news organizations, the U.S. Chamber of Commerce and several conservative legal foundations.
Vermont's Prescription Confidentiality Law prohibited the sale of prescriber-identifying information and the use of that information for marketing purposes.
Pharmacies receive "prescriber-identifying information" when processing prescriptions. Where permitted, the pharmacies sell the information to "data miners" who track prescriber behavior. The data miners lease the reports to pharmaceutical companies. They, in turn, employ "detailers" who use the data on the prescription-writing practices of individual doctors to improve their marketing of brand-name drugs to those doctors.
Vermont maintained that doctors wanted to preserve the privacy of their relationship with their patients. The state also said that the data mining of prescription information helped the drug companies market expensive drugs when generics would lower health-care costs. Data mining companies and an association of pharmaceutical companies went to court to challenge the law.
New Hampshire and Maine passed similar laws, which were upheld by the lower courts. One court stated that the prescription information was just like any commercial product and was entitled to no more First Amendment protection than "beef jerky."
Kennedy disagreed. He pointed out that Vermont allowed the prescription information to be used by other groups and organizations for educational purposes. This was the defect of the law. The state can't single out one kind of speech or one kind of speaker for disfavored treatment, Kennedy wrote.
When a law singles out disfavored content or a disfavored speaker, it has to pass a higher constitutional hurdle of "heightened scrutiny," wrote Kennedy. This means the law has to be designed to achieve a "substantial state interest." Kennedy said that the law had not been carefully designed to achieve either state goal -- privacy or less expensive health care.
Commercial speech gets less constitutional protection than political speech. But Kennedy noted that consumers may be more interested in commercial speech than urgent political dialogue, Kennedy wrote, especially when medicine and public health are concerned.
"Vermont may be displeased that detailers who use prescriber-identifying information are effective in promoting brand-name drugs," he wrote. "The state can express that view through its own speech.... But a state's failure to persuade does not allow it to hamstring the opposition. The state may not burden the speech of others in order to tilt public debate in a preferred direction."
The First Amendment requires the court to be "especially skeptical," he said, when the government tries to keep "people in the dark for what the government perceives to be their own good.... That the state finds expression too persuasive does not permit it to quiet the speech or to burden its messengers...
"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."
But Breyer wrote that the court was providing far more protection for commercial speech than it ever had, with repercussions for government regulations protecting health and welfare.
"Until today," Breyer wrote, "this court has never found that the First Amendment prohibits the government from restricting the use of information gathered pursuant to a regulatory mandate -- whether the information rests in government files or has remained in the hands of the private firms that gathered it.... Nor has this court ever previously applied any form of heightened scrutiny in any even roughly similar case.
"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."
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.