Venturing into a new frontier of First Amendment law, the Supreme Court gave constitutional protection to those seeking to use the vast stores of data and information collected by modern information technology.
The court ruled 6-3 that Vermont could not stop pharmaceutical companies from obtaining data on doctors’ prescription-writing practices – data the companies used to market their more expensive, brand-named drugs to the doctors. Vermont had tried to block this data mining of prescription information in order to protect the privacy of the doctor-patient relationship and to keep down health care costs.
Justice Anthony M. Kennedy wrote that the First Amendment provides heightened protection “for disfavored speech by disfavored speakers.” In the Vermont case, the disfavored speech was the marketing of brand name drugs and the disfavored speakers were the pharmaceutical companies.
Mark Sableman, a media lawyer at Thompson Coburn LLP, said in an email that the “decision takes a nice step forward in recognizing information (data) as protected by the First Amendment.” Sableman helped write a friend of the court brief urging upon the court the view that data collection is protected like the collection of news.
Many legal cases lie ahead involving the clash between individual privacy and the use of the vast electronic storehouses of information collected by the government and by private firms on the Internet. News organizations told the court that their journalism increasingly relies on data analysis. And the U.S. Chamber of Commerce pointed to the importance of “behavioral advertising” used by advertisers to target consumers based on their Internet search history.
Sableman pointed out that Kennedy was careful not to prejudge the future disputes. “Justice Kennedy took special steps to avoid any pronouncements regarding personal privacy and how it can or cannot be regulated,” Sableman wrote. “So he limits his holding to a viewpoint discrimination, meaning that future data rights cases that don’t involve discrimination are not really affected.”
Kennedy himself put it this way: “The capacity of technology to find and publish personal
information, including records required by the govern-
ment, 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.”
Despite this limitation, the decision is further evidence of the Roberts Court’s strong First Amendment tendencies and confirmation of Kennedy’s leading role in modern First Amendment law.
Sableman, a civil libertarian, called the Kennedy opinion a “tour de force of First Amendment law,” adding, “this decision will even more fully cement Justice Kennedy’s positions as one of the great expounders and developers of First Amendment law. The decision is filled with eloquent statements about the purpose and importance of free speech in American constitutional law. We will be seeing quotes from this decision for many years in future briefs and arguments about the First Amendment and what it means, especially with respect to limitations on information gathering and use.”
The 6-3 voting alignment was similar to the First Amendment cases involving campaign finance where the more conservative justices take the stronger First Amendment position. In the Vermont case, Justice Sonia Sotomayor joined the five more conservative justices in the majority. The conservative, pro-free speech alignment emerges where speech and money are intertwined or when conservative speakers are disfavored.
Justice Stephen Breyer warned in dissent that the court had opened the way to a flood of challenges to government regulations involving speech, such as regulations of the Food and Drug Administration. He suggested that the case could even mark a return to the bad, old days of the so-called “Lochner Era” when the court consistently ruled in favor or the rights of big corporations over workers.
“At best,” wrote Breyer, “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 re-awakens Lochner’s pre-New Deal threat of substituting
judicial for democratic decisionmaking where ordinary
economic regulation is at issue.” Justices Ruth Bader Ginsburg and Elena Kagan joined him.
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