[JURIST] The US Supreme Court [official website] on Thursday voted 6-3 to affirm [opinion, PDF] the lower court in Sorrell v. IMS Health [Cornell LII backgrounder; JURIST report], finding Vermont’s Prescription Confidentiality Law [text] a violation of freedom of speech under the First Amendment [text]. The law attempted to stifle the common practice of drug manufacturers gathering prescription records from pharmacies and using them to target advertisements to doctors. The pharmacies release the information freely and publicly, although any identifying information for patients is redacted. The Vermont law made it illegal for pharmacies to do this without the patient’s consent. Justice Anthony Kennedy’s majority opinion ruled that this was both a content and speaker based restriction on free speech and does not pass a “heightened” scrutiny standard, primarily because the statute allows records to be used for educational and state purposes, but not marketing.

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. If Vermont’s statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position. Here, however, the State gives possessors of the information broad discretion and wide latitude in disclosing the information, while at the same time restricting the information’s use by some speakers and for some purposes, even while the State itself can use the information to counter the speech it seeks to suppress. Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers.

The Court also rejected arguments that “heightened” scrutiny is inappropriate due to the law being characterized by Vermont as “mere commercial regulation.”

Justice Stephen Breyer dissented, writing that “this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise.” He rejected the Court’s use of “heightened” scrutiny, including a long history of intermediate scrutiny applied when the government directly restricts commercial speech. Breyer cautioned the Court not to return to the era of Lochner v. New York, when the Court judged every individual regulation or State law that could interfere with a business’ “liberty.” He also characterized the harm in the case as “modest at most.”