Sorrell v. IMS Health and the End of the Constitutional Double Standard

Abstract

Post-New Deal constitutional law is organized around a “double standard” between constitutional principles that the courts rigorously enforce, such as free speech or personal privacy, and those on which they defer to political actors, such as federalism or economic rights. The exact content of this dichotomy is hard to pin down, but courts frequently say that they will defer to political actors on questions of economic regulation but vigorously enforce principles of personal liberty. Recent developments, however, have put pressure on this divide, as some of the most significant industries in our contemporary economy have businesses that center around protected expression. In Sorrell v. IMS Health, for instance, the Supreme Court considered “data mining” practices in the pharmaceutical industry that yield information used to market drugs to doctors. The Court found these activities to be “speech” and thus struck down Vermont’s effort to restrict them — notwithstanding that Vermont’s law was also quintessentially economic regulation. This brief essay argues that the sort of overlap we see in Sorrell — regulatory efforts that implicate both preferred rights and the traditional concerns of economic policy — is increasingly common. This overlap will put pressure on the Court to abandon its “double standard” as an organizing principle in constitutional law.

Keywords: Sorrell, judicial review, free speech, First Amendment, economic regulation