'A Necessary Cost of Freedom'? The Incoherence of Sorrell v. IMS
54 Pages Posted: 25 Apr 2012 Last revised: 7 Sep 2013
Date Written: April 18, 2012
On June 23, 2011 the Supreme Court decided an important case that has been largely overlooked – Sorrell v. IMS Health, Inc. In Sorrell the Court struck down a Vermont law prohibiting the sale for marketing purposes of physicians’ prescription records without their permission on the grounds that the law was not “content neutral.” The majority found that because the Vermont statute singled out marketing for special treatment the law constituted a form of “viewpoint discrimination.” “The First Amendment,” Justice Kennedy wrote in the majority opinion, requires us to tolerate speech we may not like as a “necessary cost of freedom.”
This reading of “content neutrality” makes the commercial speech doctrine incoherent. By definition the doctrine only applies to speech which is “commercial” – that is, speech distinguished by its commercial content. After Sorrell any regulation of marketing could potentially fail the content neutrality test. Moreover, by casting the marketer as a “disfavored” speaker by virtue of regulation, Sorrell turns the rationale for the commercial speech doctrine upside down. The doctrine was not created to protect commercial speakers. It was created to carve out a limited area of First Amendment protection for truthful commercial speech in order to protect consumers’ right to receive accurate product information and to thereby promote the public interest in a properly functioning market. There is no indication in the case establishing the doctrine that the Supreme Court intended to protect merchants’ sales pitches as if they were “viewpoints.” Yet this is what Sorrell seems to provide.
This article argues that Sorrell’s content neutrality test is misplaced with respect to commercial speech because it subverts the rationale for protecting some commercial speech and unduly burdens the government’s ability to protect the public from marketing practices which undermine public health, safety and welfare. The notion that unrestrained freedom for commercial speech is a “necessary cost of freedom” is not just wrong, it is dangerously wrong.
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