In Sorrell v. IMS, Yes, It’s About Corporate Free Speech

The invaluable Lyle Denniston reports at Scotusblog on today’s oral arguments in the U.S. Supreme Court in the case of Sorrell v. IMS Health, Inc. From “Argument recap: Yes, it’s about commercial free speech“:

No more than a few minutes into the Supreme Court’s argument Tuesday on the new information technology of data-mining, it became very clear that the Justices — perhaps more than a simple majority — see this first test case as one about corporate free speech.   That might not turn out to be true in every case of data-mining that comes along, but it would certainly seem so when a legislature blatantly sets out to curb the use of that technology to convey a commercial message, made up of truthful information.

So heavy was the defense of corporate expression in the opening stages of the argument in Sorrell, et al., v. IMS Health, et al. (10-779) that the lawyer for Vermont — the state involved — obviously had to continue her argument under siege.  Only later did it seem that some of the Justices wanted to provide some leeway for states to regulate data-mining that threatened to invade privacy, perhaps by crafting a less far-reaching final decision.

An assistant state attorney general, Bridget C. Asay of Montpelier, Vt., had barely begun when Chief Justice John G. Roberts, Jr., said the Vermont law that restricts the sale and use, for drug-marketing purposes, of data drawn from doctors’ prescription blanks had the purpose of barring drug companies’ sales representatives from seeing doctors to promote their company products.   Asay could only answer that she disagreed, as Justice after Justice — especially Antonin Scalia — asserted that the state was simply trying to intervene in the marketplace for drugs to promote a message that it liked and to block one that it did not like: that is, the sale of brand-name drugs.

Scotusblog’s case pages are at Sorrell v. IMS.

The National Association of Manufacturers joined the Washington Legal Foundation in filing an amicus brief in support of IMS. We cited the NAM’s Manufacturing Law Center summary of the argument in this preview post, and the WLF’s summary is also excellent:

The law criminalizes the collection and disclosure of information about the prescribing practices of physicians. WLF argued that the law violates the First Amendment by prohibiting disclosures of truthful information, even disclosures arising outside the context of advertising. WLF argued that such prohibitions are permissible only when based on showings of the most compelling of government needs. WLF’s brief focused on Vermont’s claim that the Court should defer to the Vermont legislature’s factual findings regarding the need for its speech restrictions. WLF argued that deference is unwarranted; it argued that deference is appropriate only when courts are reviewing content-neutral speech restrictions, not when (as here)the challenged law restricts speech based on the content of that speech.

News coverage …

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