Sorrell v. IMS Health, Inc.: Opposing Content-Based Limits on Speech

The U.S. Supreme Court this Tuesday hears oral arguments in Sorrell v. IMS Health Inc. The National Association of Manufacturers has joined the Washington Legal Foundation in filing an amicus brief urging the Court to protect First Amendment rights by striking down a Vermont law that blocks access to critical healthcare information. As the NAM’s Manufacturing Law Center summary states:

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 amicus brief argues] 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 brief is here. The Washington Legal Foundation has background material and additional briefs here. The WLF includes its activism on the case as part of its excellent project, Criminalization of Free Enterprise – Business Civil Liberties Program. Earlier this month, the WLF also sponsored a webinar, “Sorrell v. IMS Health: The First Amendment and Health Care Information Comes Before the U.S. Supreme Court.

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