MOMENTOUS VICTORY FOR COMMERCIAL SPEECH
In 1991 I wrote a policy analysis for the Cato Institute, a public policy think tank in Washington, D.C., entitled, “Contrived Distinctions: The Doctrine of Commercial Speech in First Amendment Jurisprudence.” In that document I explained my view that the Supreme Court erred by affording commercial speech less protection than political speech. On June 23, 2011, the Supreme Court decided Sorrell v. IMS Health (6-3). The decision represents a revolution in First Amendment jurisprudence, granting commercial speech heightened First Amendment protection for the first time. It invites litigation to eliminate all manner of content-based, speaker-based, and viewpoint-based discriminatory laws that penalize those who would communicate a commercial message. It protects the harvesting and use of data in commercial speech as speech activity. It is the closest to the Founding Fathers’ construct that our Supreme Court has ever come in commercial speech jurisprudence.
Under the Founding Fathers’ construct of the First Amendment, the federal government was disarmed of any power over speech and press, regardless of whether the content concerned politics or commerce. Indeed, each attempt by the Supreme Court to distinguish commercial from political speech has foundered on distinctions that could not withstand serious scrutiny. As the Court recognized in its landmark Virginia State Board of Pharmacy decision in 1976, “[a]s to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.”
The Founding Fathers gave “the press” exemption from federal speech controls without regard to the content communicated. Indeed, the press known to the Founders was principally advertisement of commercial matters, such as announcements of sea voyages to Barbados or the availability of various wares. Alexis de Tocqueville contrasted the French press with the American, precisely because here the press was filled with commercial content. He wrote in Democracy in America: “In France, the space allotted to commercial advertisements is very limited, and the newsintelligence is not considerable, but the essential part of the journal is the discussion of the politics of the day. In America three quarters of the enormous sheet are filled with advertisements, and the remainder is frequently occupied by political intelligence or trivial anecdotes; it is only from time to time, that one finds a corner devoted to passionate discussions, like those which the journalists of France every day give to their readers.”
Published pieces were not infrequently entirely commercial and the Founding Fathers understood the entire lot, commercial and non-commercial, to be part and parcel of “the press.” To be sure, they did not conceive of content in commercial versus non-commercial terms. That segregation began in the 1930s, as the Supreme Court came to deem economic liberty as less deserving of protection than civil liberty and relegated economic rights to mere rational basis protection. Consistent with that bifurcation, and without regard to constitutional history and precedent, the Supreme Court initially deemed commercial speech undeserving of any First Amendment protection in Valentine v. Chrestensen (1942). It did an about face in 1980 when in Central Hudson Gas & Electric Company v. Public Service Commission, the Court created an intermediate scrutiny test to provide commercial speech regulation greater scrutiny.
Members of the Court, including Justice Thomas, have been critical of the Court’s political speech versus commercial speech distinctions and its Central Hudson intermediate scrutiny test. That debate was settled, at least for the moment, in the landmark decision just issued by the Court: Sorrell v. IMS Health. In Sorrell, the Supreme Court for the first time recognized what it had only before expressed appreciation for in the political speech context, that viewpoint discrimination mattered regardless of whether the speech in issue concerned political advocacy or a persuasive appeal to sell a product.
In Sorrell, the Court struck down a Vermont law that forbad pharmacies from making available, and others from purchasing, acquiring, and using, prescriber-identifying information from physicians. That information was patient “de-identified,” so no privacy interests were involved. That information held by pharmacies is often sold to drug companies that use it to make sales pitches through their drug representatives to specific physicians, a practice known as “detailing.” Rather than allow individual physicians to decide whether they wanted a sales pitch or not, Vermont thought it wise to forbid the use altogether but to allow non-commercial entities to use the information as well as certain other favored commercial parties, such as those who sell generic drugs, along with the state of Vermont in a “counter-detailing” program. The law was thus a speaker-based, content-based, and viewpoint-based act of commercial speech censorship.
Under commercial speech jurisprudence preceding Sorrell, content and viewpoint based discrimination had become the norm. If a regulator did not like the fact that a dietary supplement maker wished to explain truthfully that a supplement containing folic acid could reduce the risk of neural tube defects, that FDA regulator would order the speech off the market (precisely on the basis that the agency wished the content in issue not to be communicated for a non-drug product). If Florida wished to ban for thirty days the right of lawyers to send direct mail solicitations to accident victims, viewing that as a repulsive form of ambulance chasing, the state could do that without offending the First Amendment, the Supreme Court so held in Florida v. Went For It.
In light of Sorrell, however, the world has changed. Unlike before, under the new doctrine of Sorrell, any time the government presumes to adopt an anti-competitive advertising law that discriminates against one set of speakers to advance the interests of others or that aims at censoring specific content or that aims to exclude specific speakers, it will now face heightened constitutional scrutiny (which in effect means that unless the speech is demonstrably false and misleading, it will be protected against such arbitrary acts of the government).
Sorrell v. IMS Health is a monumental decision that moves commercial speech jurisprudence from a condition of broad deference to legislative power back to one skeptical of that power in defense of individual freedom. Commercial speech is indispensable to the lives of all Americans. While Americans may be able to cope day to day without uttering a political word or receiving one, almost everyone must communicate a commercial message either directly or indirectly to survive. That is not to say political speech is any less deserving of protection than commercial speech, but it is to say that the importance of a commercial message is inextricably intertwined with persuasion necessary to maintain life, liberty and property and, so, should not be viewed as any less vital to freedom than political speech. While we depend on the free flow of political ideas and information to check government abuses, we likewise depend on the free flow of commercial information to discern the effects of government action, to estimate the relative worth of those things upon which we rely for life and for self-fulfillment, and to exercise informed choice in the market.
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The Founding Fathers wisely chose to disarm the federal government of any power whatsoever over speech and press. The Supreme Court’s Sorrell v. IMS Health decision is the closest our modern court has come to reducing the regulatory power of government over speech deemed commercial and to reuniting such speech with political communication consistent with the Founding Fathers’ construct. The decision in a very profound way increases individual liberty by significantly decreasing the power of government to interfere with the free flow of information in the market.
© 2011 Jonathan W. Emord - All Rights Reserved