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Opinion analysis: Like ships passing in the night…

Commentary and analysis

With a Supreme Court majority worrying over a government choice to favor its point of view over someone else’s, and the dissenters bemoaning a return to the discredited “Lochner era” of judicial nullification of needed economic regulation, the highest tribunal on Thursday left the state of “commercial speech” under the First Amendment in a newly uncertain state.  The case of Sorrell v. IMS Health (110-779) had given the Court a fresh opportunity to clarify whether speech about economic activity would emerge from its second-class constitutional status.  On that, the 6-3 ruling that emerged had the majority and dissenters passing each other, unregarded, like ships passing in the night.

It will be possible, after reading Justice Anthony M. Kennedy’s majority opinion, for advocates of the right to engage in commercial speech to claim a space in the First Amendment pantheon: their side won a case with the Court applying a more demanding standard for laws that seek directly to suppress an economic message.  And it will be equally possible, after reading Justice Stephen G. Breyer’s dissenting opinion, for advocates of economic regulation to look forward with dread to the wholesale dismantling of government programs that have even a modest impact on economic expression.

But that would be due just to the rhetoric, and not the substance.

The Kennedy opinion reached its conclusion — striking down a Vermont law that forbids the sale of the records of doctors’ drug prescriptions if the data is to be used to support the commercial sale of brand-name drugs — by a standard application of the First Amendment’s hostility to targeted government censorship.  If Vermont had just been less aggressive (and less candid) in declaring its commitment to reducing the sales of pharmaceutical companies, its law might well have passed muster — as, indeed, Kennedy came close to conceding.

Along the way, Kennedy did not seem to make any new law on whether commercial speech is now to be placed on an equal plane with political speech.  And he did not make any new law on a secondary question in the case: whether there is a right of access to information that the government has gathered in a regulatory regime.   The case turned out to be only how information could be used, not obtained.

And, similarly, the Breyer dissenting opinion reached its conclusion — that Vermont’s law was an unremarkable, typical example of a government promoting some public good by regulating commerce — by reading into the state legislature’s effort no more than a modest use of police power of the kind that has been validated for decades, at least since the New Deal captured the Supreme Court’s belated endorsement.

The dissent was a standard application of the modern notion that commercial speech somehow ranks lower in the First Amendment hierarchy than speech on political matters, so any check upon it that is reasonable will pass muster.

If the soaring language is put aside, what might be concluded about what emerged on Thursday is, basically, a decision that Vermont simply botched the job of promoting the availability of cheaper, generic drugs by over-reaching.  Its legislature, starting with the perhaps laudable goal of making medical care more affordable by lowering the price of medicine, adopted a regime of control keyed to how recipients of information gathered on prescription blanks used that information.  Drug companies could not use it to market their brand-name merchandise by trying to induce doctors to prescribe their brands, but the state put no restriction on anyone else’s use of the information — so long as they did not do so for “marketing.”

With that approach apparent to Kennedy at the outset, it was not difficult for the Court to reject the state’s attempt to justify its law by claiming that it was designed to protect doctors’ privacy, and that it would work to lower the cost of medicine by encouraging the use of generic drugs.  The majority turned aside the first justification by concluding that the information is so widely available that privacy is hardly assured, and, besides, it is up to doctors to decide whether they let pharmaceutical salesmen (“detailers”) into their offices.  The majority found the second justification wanting, too, ruling that the state cannot advance its own message — prescribe cheaper substitute drugs — while trying to suppress the drug companies’ sales message — prescribe our drugs.

Summing up, Kennedy said at the end of his opinion: “The state has burdened a form of protected expression that it found too persuasive.  At the same time, the state has left unburdened those speakers whose messages are in accord with its own views.  This the state cannot do.”

Along the way, the majority opinion did hint, briefly, at the possibility that new computer-based methods of gathering and sorting information — such as the process known as “data-mining” — present “serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure.”  But, without addressing itself any of those issues lurking in the background, Kennedy wrote: “In considering how to protect those interests,…the state cannot engage in content-based discrimination to advance its own side of a debate.”

The foreboding of the dissenters was best summed up, near the end of the Breyer opinion, this way: “At best the Court opens a Pandora’s box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message….At worst, it reawakens Lochner‘s pre-New Deal threat of substituting judicial for democratic decision-making where ordinary economic regulation is at issue.”

Justice Kennedy’s only response to that was an indirect one.  He, too, remembered the 1905 ruling in Lochner v. New York.  But he quoted from it Justice Oliver Wendell Holmes’ biting comment in dissent that the Constitution ” ‘does not enact Mr. Herbert Spencer’s Social Statics.’ “   The Briton, Mr. Spencer, invented the phrase “survival of the fittest,” and applied it to economic theory — as did the Lochner-era Court in striking down social regulatory legislation.


The Kennedy opinion was joined by Chief Justice John G. Roberts, Jr., and by Justices Samuel A. Alito, Jr., Sonia Sotomayor, Antonin Scalia and Clarence Thomas.  Joining Breyer in dissent were Justices Ruth Bader Ginsburg and Elena Kagan.

(Disclosure: The firm of Goldstein, Howe & Russell represented the data-mining companies who challenged the Vermont law.  The author of this post operates independently of the firm’s law practice.

Recommended Citation: Lyle Denniston, Opinion analysis: Like ships passing in the night…, SCOTUSblog (Jun. 23, 2011, 5:14 PM),