Supreme Court of the United States
William H. Sorrell v. Ims Health Inc.
June 23, 2011180 L. Ed. 2d 544
Summary
The Supreme Court affirmed the Second Circuit's judgment holding Vermont's Prescription Confidentiality Law (Vt. Stat. Ann., Tit. 18, § 4631(d)) unconstitutional under the First Amendment. The Court held that, on its face and in practical operation, the statute imposes content- and speaker-based burdens on protected speech—restricting the sale, disclosure, and use of prescriber-identifying information for pharmaceutical marketing while leaving the information available to favored speakers—triggering heightened judicial scrutiny that Vermont's asserted interests in medical privacy, preventing harassment, protecting the doctor-patient relationship, promoting public health, and lowering healthcare costs cannot satisfy. Justice Breyer, joined by Justice Ginsburg and Justice Kagan, dissented, arguing that heightened scrutiny was unwarranted for a commercial data-use regulation and that the statute survived even Central Hudson intermediate scrutiny.
Holding
- Whether § 4631(d) is subject to heightened judicial scrutiny under the First Amendment.. Yes. On its face and in its practical operation, § 4631(d) enacts content- and speaker-based restrictions that burden disfavored speech by disfavored speakers—pharmaceutical marketers—so heightened judicial scrutiny applies; the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied.
- Whether Vermont's asserted medical privacy and physician confidentiality interests justify § 4631(d).. No. The statute is not drawn to serve physician confidentiality: pharmacies may share prescriber-identifying information with anyone for any reason except marketing, and insurers, researchers, journalists, and the State itself may use it; the consent mechanism offers doctors a contrived choice that conditions limited privacy on acquiescence in the State's burdening of disfavored speech.
- Whether the statute is justified by protecting physicians from harassing sales practices and preserving the doctor-patient relationship.. No. Concern for 'a few' physicians who felt coerced cannot sustain a broad content-based rule; physicians can decline to meet detailers and give 'No Solicitation' or 'No Detailing' instructions, receiving protection equivalent to that afforded homeowners; and the fear that speech might persuade provides no lawful basis for quieting it.
- Whether the statute is justified by Vermont's public health and healthcare cost objectives.. No. A State may not pursue proper policy goals through the indirect means of restraining certain speech by certain speakers; the fear that people would make bad decisions if given truthful information cannot justify content-based burdens on speech, and the State may not burden the speech of others to tilt public debate in a preferred direction.
Docket No. 10-779