Thursday, June 23, 2011

Sorrell v. IMS Health: Corporate Commercial Speech in the Age of Citizens United

David Gans

Monday – the last day of the Court’s Term – is shaping up to be First Amendment Day at the Supreme Court. Two of the four remaining cases to be decided raise important questions concerning the meaning of the First Amendment. The Court is expected to release its long awaited opinions in Brown v. EMA, concerning the constitutionality of state regulation of violent video games, and McComish v. Bennett, the sequel to last Term’s blockbuster campaign finance ruling in Citizens United v. FEC. With these landmark rulings still to come, it would be easy to lose sight of today’s ruling in Sorrell v. IMS Health, a commercial speech case that has gotten almost no attention this Term. But Sorrell should not be missed. The 6-3 ruling written by Justice Kennedy – also the author of Citizens United – lays the framework for a major expansion in the protection the First Amendment affords to commercial speech by corporations and other businesses.

For the last thirty-five years, the black letter First Amendment law has been that commercial speech is protected by the First Amendment, but that restrictions on speech proposing a commercial transaction are subject to a more lenient form of judicial review in light of the differences between commercial and political speech at the core of the First Amendment and the government’s greater interest in regulating commerce and the economy. This balance reflects two settled and fundamental propositions: (1) the First Amendment affords some protection to the economic speech of corporations, but that corporations do not have the same First Amendment rights as living persons; and (2) governments have broad latitude to regulate the commercial speech of corporations to protect consumers and safeguard the health, safety and welfare of “We the People.” To guide lower courts to properly resolve First Amendment challenges, the Supreme Court in a 1980 case called Central Hudson adopted a form of intermediate scrutiny for commercial speech cases.

Justice Kennedy’s opinion today in Sorrell takes a step back – possibly a substantial one – from this established framework. Sorrell involves a Vermont statute regulating marketing of drugs by pharmaceutical manufacturers. The statute denied to marketers information in the form of pharmacy records – collected by the government – about the prescribing practices of individual physicians. In striking down the Vermont regulation, Justice Kennedy invoked the same basic First Amendment precepts which he trumpeted in Citizens United. “Heightened judicial scrutiny is warranted,” Justice Kennedy wrote, because the law “burdens disfavored speech by disfavored speakers.” “Content- and speaker-based restrictions” on commercial speech, Justice Kennedy explained, offend basic First Amendment principles and require heightened judicial review (presumably a form of strict scrutiny and certainly a good deal stricter than Central Hudson). While Sorrell did not specifically rely on Citizens United, the imprint of Kennedy’s campaign finance blockbuster is hard to miss.

While Citizens United emphasized that protection of political speech is at the core of the First Amendment, today Justice Kennedy suggested that commercial speech may be deserving of no less protection. “A consumer’s concern for free flow of commercial speech may often be keener than his concern for urgent political dialogue.” In explaining why the Vermont statute was unconstitutional, Justice Kennedy likened the statute to one that suppressed political speech, criticizing Vermont for “tilt[ing] public debate in a preferred direction.” All the while, Justice Kennedy paid lip service to the established First Amendment tradition that states have a freer hand to regulate speech that proposes a commercial transaction to protect the public welfare.

Justice Breyer’s dissent, joined by Justices Ginsburg and Kagan, saw in Justice Kennedy’s majority opinion a new, more demanding standard for commercial speech cases, and sharply criticized it as inconsistent with both precedent as well as first principles. To the dissenters, Justice Kennedy’s demand for heightened scrutiny was a return to the infamous Lochner era, the heyday of constitutional protection for corporations, today reviled by both liberals and conservatives alike. As Justice Breyer observed, “[t]o apply heightened scrutiny, when the regulation of commercial activities is at issue (which often involves speech)” is to undercut much federal and state legislation “inextricably related to a lawful governmental effort to regulate a commercial enterprise.” Justice Kennedy’s pointed response – “The Constitution ‘does not enact Mr. Herbert Spencer’s Social Statics.’ It does enact the First Amendment.” – all but admits the charge. In Justice Kennedy’s view, the Justices are there to enforce the First Amendment, including by overturning economic regulation of commercial speech by corporations.

Sorrell throws commercial speech doctrine into a state of considerable confusion. The Court has not overruled Central Hudson, but at the same time it has undermined the ruling by introducing a new, undefined, yet clearly stricter standard of review. The majority found the statute wanting under both tests, so it was not forced to choose between the two. Sorrell suggests that the Court’s commercial speech doctrine may be in a state of great flux in the years to come, and that Justice Kennedy and his colleagues are eager to expand, possibly quite substantially, the constitutional protections available to corporations and other businesses. This is an area that deserves to be closely watched.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.


Perhaps someone could explain to me in lay terms why laws against fraud are Constitutional, presumably principally to protect citizens, yet laws against selling private data are not, presumably toward the same end. How is it the Constitution permits my state to protect me in the former case but not the latter?

Thank you.

What case c. 1965 is relevant so that "the last 45 years" is the test?

Commercial speech, starting in the mid-1970s and more so now in cases like 44 Liquormart has received stronger protections. Cases like R.A.V. v. St. Paul also noted that wrongful classifications can be a problem even for traditionally "weaker speech."

Six justices, including Sotomayor, rested on that here. Commercial speech also doesn't only cover "speech of corporations." So, the "balance" can't just rest on that.

As to how special the ruling was, SCOTUSBlog sees it as less so than the discussion here.


As to jpk, "truthful" speech, including commercial in nature, gets protection given its value; fraud is untruthful. Privacy concerns are different. But, the ruling here didn't say privacy can't be a suitable interest. It said the law itself was selective in that regard. I again point to the Scotusblog discussion.

Very interesting analysis. I think the big debate over the next few months will be between those who believe that this decision is a portent of a much larger expansion of 1A doctrine, and those who characterize Sorrell as a more exceptional case. I have a few thoughts on the matter here:

I am not sure that I understand the relevance of corporate form here. If I understand correctly, Vermont prohibited certain information from being obtained for commercial purposes, though the same information could be obtained for non-commercial purposes. Presumably the prohibition applied regardless of whether the information was sought by a corporation, a partnership or an individual. If that is so, the rights of corporations per se would not seem to be at issue.

"in light of the differences between commercial and political speech at the core of the First Amendment"

Which core is rather hard to discover in the actual amendment, which just states that Congress can't infringe on freedom of speech and the press, and doesn't say squat about whose, or what topic.

We appear to be in a blossoming of the 1st amendment, with old, unjustified restrictions finally falling by the wayside. Exciting.

Brett's core would seem to combine the Second Amendment with the First's speech clause in unlimited fashion such that if speech can't kill, then it can be backed up with arms. Surely Brett can identify 1789 meaning of the framers/ratifiers to support what he claims are "old, unjustified restrictions." Or is he once again shooting from the lip?

"doesn't say squat about whose, or what topic"

That's why obscenity, releasing national secrets, matters of totally private concern and so forth are and always was treated the same as political speech, works of Shakespeare and so forth.

It hasn't? Never was? Okay. The Constitution was never applied right. More evidence there was never a Golden Age for Brett's Constitution. It is more of a state of mind.

I don't say this intended to be snarky or anything. It's just that we aren't talking about the usual suspects here. Some sort of totally literal Constitution was never the case. Why?

To follow up on Joe's comment, some who profess that originalism is clear and simple in interpreting the Constitution are just plain simpletons. Larry Solum at his Legal Theory Blog has a post on his article "The Interpretation-Construction Distinction" that includes discussion of the vagueness of the First Amendment's "freedom of speech" provision that requires going beyond interpretation to construction. I highly recommend Solum's article to those who think "freedom of speech" is perfectly clear in providing unlimited speech. As noted in the article, "interpretation-construction" is not a new concept and can be traced back at least to Francis Lieber's 1839 text "Legal and Political Hermeneutics or Principles of Interpretation and Construction in Law and Politics." (I have commented on several occasions at this and other blogs on Lieber's text, which I had purchased for 50 cents in the early 1950s when in law school, at a Morgan Memorial store. One of the things that attracted me to the book - the Third Edition published in 1880 - was that it came from the library of the Boston law firm Brandeis, Dunbar & Nutter as well as the word "Hermeneutics".)

Solum had a post immediately preceding the post on his article on Stephen Durden's "Partial Textualism" published in 2010 in the Univ. of Memphis Law Review that exposes textualist justices who often stray from strict textualism to partial textualism when it suits them ideologically.

Links to SSRN and these articles are available for downloading at Solum's Legal Theory Blog. I could be snarky and say that I can lead a constitutional simpleton to these articles but can't make him/her read them. Okay, call me snarky.

"It does not therefore seem to me an undue liberty to give the section as a whole the meaning it must have had, in spite of the clause with which it begins. Such treatment of a statute needs no apology today, whatever were the scruples of th past. There is no surer way to misread any document than to read it literally; in every interpretation we must pass between Scylla and Charybdis; and I certainly do not wish to add to the barrels of ink that have been spent in logging the route. As nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situation; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final."

-- Learned Hand, GUISEPPI et al. v. WALLING

This quote came to mind because Justice Stevens alluded to it recently. I'm looking forward to his book coming out this fall.

By the Bybee (*#&$^%@), I have been snarky over the years here and elsewhere on originalism and living constitutionalism (with the many variations of each thereof) in interpreting the Constitution. Perhaps a marriage - or at least a flirtation - may result based upon Part V. "The Indispensability of the Interpretation-Construction Distinction" of Solum's article where he suggests that such may be a common ground for both originalism and living constitutionalism (with a tad of mutual give and take). But the search for the Holy Grail of constitutional interpretation, if it exists, may continue to be elusive.

I agree that the opinion appears to add to confusion in the commercial speech doctrine. As for the question from one of the comments about what Citizens united has to do with commercial speech I would direct the reader to my article on this topic "Citizens United and the threat to the Regulatory State" here
On the more general topic of the use of the First Amendment in defense of commerce I have a book forthcoming on this issue from University of Michigan Press, "Brandishing the first Amendment.";jsessionid=87812FF959E9265C65434708FB156C15?id=291038

Apparently in Shag's eyes, the fact that I want the 2nd amendment enforced forever taints my desire that the rest of the Bill of Rights be enforced, too.

This represents an advance in respecting freedom of speech. If you don't want somebody to share information you give them, either don't give it to them, or get them to sign a contract agreeing not to share it. Because freedom of speech is guaranteed by the Constitution, privacy, except against governmental invasions, is not.

How do we "get" companies that sell us needed drugs to not share information with others? What power do we have in that department? Do we tell the one company that sells a cancer drug that "hey, I'm not going to take it!"

The government is allowed to protect our privacy in various ways, some that in some fashion regulate speech. It can protect the privacy of prescriptions without us needing to convince a mega-million company to do so.

As an aside, some states protect invasion of privacy from private actors in their constitutions too.

Politicians as people are sociopaths, they should be given as little control over other people as feasible, especially where they'll be subject to massive conflicts of interests, such as where they'd be controlling speech about themselves.

That's my basic bottom line on campaign reform in general, and especially censorship of political speech under any pretext whatsoever: Whatever ill you seek to cure by it is overwhelmed by the conflict of interest involved in incumbent politicians getting to regulate how people try to replace them.

A conflict the incumbents do not so much grapple with as embrace...

Brett seems to want an absolute, unlimited First Amendment speech right. With his definition:

"Politicians as people are sociopaths, ... "

he seems to limit this to incumbents, as if their challengers would not fit that definition, at least until they might upset incumbents. Or if the challengers would also be considered by him as such politicians, then how in his political world can there be a republican form of government?

Perhaps Brett's protection from such "sociopaths" would come via an absolute, unlimited Second Amendment right.

Brett ventures close to preaching anarchy with his latest rant.

The argument that truthful speech gets protection runs aground with e.g. FDA regulation of pharm product advertising. The industry would otherwise make lots of claims which would be arguably truthful. So obviously it's not that simple.

The crux seems to be that the industry's "speech" rights override my privacy rights and even my state's right to protect my privacy. If I have that straight, it does beggar the imagination what is not "speech". One clue is that speech with money and power is getting protection.

Tom Toles has a great political cartoon in today's (6/29/11) WaPo on the violent video games case with CJ Roberts at the bench holding a video game and rendering his decision. Toles notes: "You got the money, you got the speech, all ages."

How about a violent video game with judges/justices as the potential "victims" of all sorts of violence at the hands of pre-teeners? Might this be considered home schooling of terrorists?

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