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Monday, July 2, 2012

One Year Later: The Consequences of Sorrell v. IMS Health Inc.

The Supreme Court’s First Amendment jurisprudence has taken an alarming turn under Chief Justice John Roberts. Bowing to corporate interests, the ascendant conservative wing of the Court has warped First Amendment doctrine to thwart legislative efforts to reign in corporate activity that is harmful to the public interest. The 2010 Citizens United ruling is the best-known example of this trend, but an important, if lesser known, case is Sorrell v. IMS Health, Inc., decided one year ago this month.

The Court in Sorrell held that a Vermont law prohibiting pharmaceutical marketers and data-mining companies from purchasing prescription records from pharmacies violated the First Amendment rights of the pharmacies. When the ruling was handed down last year, it provoked a sharp outcry. Observers in the medical community noted that the ruling would lead to both a loss of medical privacy and higher prescription drug prices. Going further, Senate Judiciary Committee Chairman Senator Patrick Leahy said that the Sorrell ruling was “just one more example of the Supreme Court using the First Amendment as a tool to bolster the rights of big business at the expense of individual Americans.”

The impact of the Sorrell ruling in lower courts has reached far beyond Vermont, and has borne out Senator Leahy’s warning. For example, the Sorrell Court’s warped vision of the First Amendment was cited by the Northern District of Illinois in its ruling that the First Amendment protected a grocery store chain from liability for misappropriating Michael Jordan’s likeness in advertising without his consent. One industry in particular has welcomed the Sorrell ruling: tobacco manufacturers. Earlier this year, the federal trial court for the District of Massachusetts, relying heavily on Sorrell, struck down a Worcester city ordinance limiting tobacco advertising near schools and prohibiting the sale of “blunt wraps,” an especially carcinogenic tobacco product. In a similar vein, the Court of Appeals for the Sixth Circuit, relying partially on Sorrell, struck down part of a recent federal law that prohibited the use of certain colors and graphics in cigarette labeling and advertising. The Court upheld other portions of the law that had been challenged by the tobacco industry, including requirements that cigarette packaging contain large warning labels, but it is possible that the case may be on its way to the Supreme Court.

The Court reached its conclusion in Sorrell by distorting its own tiered scrutiny framework. Long-standing precedent established that speech for purely private or profit-generating purposes — advertising, for example — should not receive the same level of judicial protection as some other forms of individual expression, such as political, artistic, or scientific speech. Rather than applying this precedent to the case before it, the Court decided instead to subject the Vermont data-mining restriction to the highest level of judicial scrutiny, usually reserved for only the most extreme cases of government censorship.

This misapplication of First Amendment doctrine came as a shock to Court watchers, and sparked a sharp dissent from Justice Breyer. The dissent warned against the Court’s reversion to the jurisprudence of a century ago, when it employed dubious constitutional doctrine as a pretense for imposing its political and economic vision of libertarianism and lasseiz-faire capitalism on the nation. The most infamous example is the case after which that era was named: the Court’s 1905 ruling in Lochner v. New York. In Lochner, the Court struck down a New York state law guaranteeing basic worker protections as an infringement on the “liberty to contract” between the workers and their abusive corporate employers. The Sorrell dissenters referred to Locher repeatedly, urging the Court to avoid “repeating the mistakes of the past.”

The First Amendment is a crucial cornerstone of our democratic freedoms, but it is not a license for corporate interests to trample on the rights of Americans. The warping of First Amendment jurisprudence by the conservatives on the Supreme Court in cases like Sorrell transforms the First Amendment from the safeguard of free democratic expression into a blank check for corporations to say, spend, and influence anyone or anything without accountability. The Court began to go down this road a century ago, before wisely turning back. It now appears that the conservatives on the Court are prepared to disregard the lessons of history and go down it again.

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