Supreme Court holds that First Amendment protects the “right” of pharmaceutical marketers to use and sell the names of prescribing doctors.

Pharmaceutical “detailers” – marketers who try to persuade doctors to prescribe their companies’ drugs – challenged a Vermont law that barred them from using information from the state’s prescription database for their marketing. Public Good joined an amicus brief of public health and consumer protection groups arguing that the ban did not implicate the First Amendment at all, because the raw data involved were not “speech” entitled to constitutional protection.

The Supreme Court struck down Vermont’s law, holding 6-3 that the statute violated the First Amendment because it discriminated against one type of speaker—pharmaceutical companies – and one type of speech—marketing. (The law permitted the use of the databases for government monitoring and for academic research.)

The decision is troubling for at least two reasons:

• The Court strongly suggested (without actually deciding) that raw data should be considered protected speech, so that regulation of commercial sales of data – including private information – implicates the First Amendment. Justice Breyer’s dissent included a long list of economic regulations that could be upended by such an expansive reading of the scope of protected speech.
• In the first Supreme Court case in a decade to address the standard of First Amendment protection afforded to commercial speech, the Court explicitly called into question whether commercial speech should continue to receive a lower level of protection than political, religious, artistic, and other forms of “core” speech (again without actually deciding the issue). The Court spent little time analyzing whether the “speech” at issue was commercial, and even when ostensibly discussing commercial speech referred to many noncommercial cases. Both of these would have been unusual steps a decade ago, and may portend a general blurring of the distinction between commercial and noncommercial speech – a development that could result in greater leeway for businesses to invoke the First Amendment against virtually any regulation seeking to protect the public.

The Supreme Court, with four new members since the last time a commercial speech case was decided, continues to expand protection for businesses under the rubric of “free speech.” While Justice Kennedy’s majority opinion characterized this movement as a march toward greater freedom of speech for all, Justice Breyer’s dissent more persuasively likened it to the discredited use of the Due Process Clause in the “Lochner era” a century ago to strike down business regulations with which the Justices did not agree.

131 S.Ct. 2653 (2011).