This column by ACRU Senior Legal Analyst Ken Klukowski was published June 25, 2011 on The Washington Examiner website.
U.S. Supreme Court Justice Sonia Sotomayor threw lawyers a curve ball this past week by siding with conservatives on a corporate free-speech case.
Marking the first time she’s broken with liberals in a case presenting a clear philosophical split, scholars will wonder what other surprises the “wise Latina” from the Bronx has in store.
The case is Sorrell v. IMS Health. Pharmacies sell information on which drugs individual doctors prescribe. Pharmaceutical companies buy that information so their salespeople will know exactly what each doctor’s preferences are, tailoring individual sales pitches to offer drugs similar to the ones each doctor favors.
Vermont passed a law making it illegal to sell this information to drug makers for sales pitches, though such data could still be sold with other organizations for other purposes, such as research or education.
IMS Health sued, alleging that it violates free speech to prevent one company from selling this information to another company.
The Supreme Court agreed that Vermont’s law violates the First Amendment. In a 6 to 3 decision written by Justice Anthony Kennedy, the court held that this content-based speech restriction amounted to government disfavoring a particular type of speaker (drug companies) from engaging in a particular form of speech (promoting new medicines).
The court suggested it might be possible to draft a content-neutral statute that could have a similar effect, pointing to a federal law on the books. But Vermont’s law was clearly taking sides on an issue involving speech, and it’s been recognized for decades that corporations — no different than human beings — have free-speech rights.
It’s no surprise that IMS Health won. Although rightly described as a moderate, it’s more accurate to say that Kennedy is conservative on some issues and liberal on others.
The issue on which he is perhaps most conservative is free speech; he believes in robust public debate and wide-open sharing of facts and opinions without government control.
Kennedy’s opinion gained the support of the four conservative justices. So long as business messages are truthful and not misleading, government cannot control one company’s selling marketing data to a second company for use in tailoring sales pitches.
It’s also no surprise that Justice Stephen Breyer wrote a strong dissent, joined by liberal Justices Ruth Bader Ginsburg and Elena Kagan. Breyer argued that government can regulate business, and restricting what information these companies can use or say falls within what Breyer seemed to suggest is an almost unlimited regulatory power.
The surprise here is that Sotomayor split with her liberal colleagues and joined Kennedy’s opinion in full. Sotomayor joined the caustic 2010 dissent in Citizens United v. FEC when the court struck down a key part of McCain-Feingold (in another decision written by Kennedy). But she sees some distinction between political speech and commercial speech.
While the court recognizes such a distinction, it’s that political speech generally enjoys greater First Amendment protection than commercial speech. It’s unclear why Sotomayor believes that the content of political ads can be censored by government, but not the content of drug prescription sales.
These positions seem difficult to reconcile. It’s possible that Sotomayor has her own unique theory on free speech, and only future cases will reveal it.
President Obama wanted to nominate the first Hispanic to the Supreme Court. Sotomayor was a natural pick as a graduate of Yale Law and a law journal editor. She was a long-standing judge on the 2nd Circuit federal appeals court. And she’s been reliably on the judicial left on issues.
But her split here with Obama’s other appointee, Kagan, must come as a surprise to the White House. What will Sotomayor do next?