After Sorrell v. IMS Health: Reconciling Free Speech with Privacy Protections

by on June 24, 2011 · 5 comments

The Supreme Court yesterday handed down a 6-3 decision in Sorrell v. IMS Health Inc. striking down a Vermont law restricting marketing to doctors based on their past history of writing drug prescriptions. The law required that doctors opt in before drug companies could use data about their prescription patterns to market (generally name-brand) drugs to them.

I’ve been closely following this case, having filed TechFreedom amicus curiae brief with the Supreme Court earlier this year, written by First Amendment expert litigator Richard Ovelmen, and previously joined with other free speech groups in an amicus brief before the Second Circuit.  Our media statement on the Supreme Court brief provides a pretty concise summary of our views and what’s at stake in this case, and Jane Yakowitz’s initial blog reactions are especially worth reading.

The lopsided decision should surprise no one: Vermont’s law was a brazen effort to suppress speech disfavored by the state based on the paternalist assumption that name-brand drug marketing is “too effective.”  In essence, the Court has reaffirmed the core meaning of the First Amendment: government must trust the marketplace of ideas unless fraud or deception occurs.  Anyone who takes the First Amendment seriously should be roused to applaud when Justice Kennedy writes, for the majority, that “fear that speech might persuade provides no lawful basis for quieting it.”  Clearly, this principle is as true for commercial advertising as for any form of speech. I’m particularly glad to see that Justice Sotomayor joined in this decision.

This is just the latest in a line of cases upgrading protection for commercial speech stretching back over 30 years since Central Hudson and including Lorillard (2001) and 44 Liquormart (1996).  But the opinion will also surely be remembered as the beginning another line of cases that attempt to guide lawmakers trying to protect legitimate privacy interests without suppressing speech.  The First Circuit, upholding a similar law, had previously deemed prescriber-identifying information “as a mere ‘commodity’ with no greater entitlement to First Amendment protection than “beef jerky.'” But the Supreme Court rejected this, unequivocally declaring that “information is speech,” including both its creation and dissemination, even while recognizing the privacy problems raised by the “capacity of technology to find and publish personal information.”

Thus, restrictions on data collection, use and transfer must satisfy First Amendment scrutiny.  Future courts will therefore strike down privacy laws that burden too much speech, such as by requiring opt-in rather than opt-out (one of the things hinted at by the Sorrell court).  The government must clearly establish the need for privacy regulation and consider the availability of less-restrictive alternatives, such as user empowerment, education and the enforcement of existing laws—which has been our message on privacy generally all along. Or, for example, government might set basic standards for the de-identification of data, as Jane Yakowitz has proposed, before rushing to implement draconian mandates such as rigid purpose specification requirements that make difficult or impossible many unexpected, serendipitous uses of data for pro-consumer innovations like Google Flu Trends.

Policymakers should carefully consider the values recognized by the Court today before further clamping down on the flow of data that drives speech throughout the information economy.  Unfortunately, in all the frenzy in Washington over proposed privacy legislation, and the FTC’s staff report on privacy, little attention has been paid to how to reconcile privacy protections with the First Amendment.  I hope this decision spurs a serious consideration of that challenge.  To that end, TechFreedom will shortly be announcing an event discussing this case and what it means for privacy and the free flow of data. Stay tuned!

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