In Sorrell v. IMS Health Inc., the Supreme Court reviewed a state law prohibiting the sale of doctors’ prescription records (tracking consumer trends) to marketing and data-mining firms. The Court agreed that the regulation targeted economic activity and infringed on commercial speech. The majority applied strict scrutiny to strike down the regulation as an unconstitutional content-based and viewpoint-based regulation. Discuss the reasoning of the dissent to explain why this ruling is significant and how it changes the commercial speech doctrine.

Question

What will be an ideal response?

Answer 1

Answers should include the following points: (1) Since Central Hudson, the Court generally has applied a form of intermediate scrutiny to give commercial speech lesser First Amendment protection than core political speech. (2) Precedent since Central Hudson recognizes that corporations do not have First Amendment rights equal to those of people. (3) Precedent since Central Hudson recognizes that government has greater latitude to regulate this noncore speech to protect important consumer safety, health, and welfare. (4) Justice Kennedy’s opinion for the majority applies reasoning and the Court’s most rigorous test—strict scrutiny, which has been used in cases of threats to government interests of the highest order. Some would argue that prior rulings do not indicate that the interest here (the interest of corporations in obtaining government-held records on consumer practices) does not meet that standard. (5) The majority opinion applies reasoning similar to that employed in Citizens United, which seemed to elevate the First Amendment protection of corporate speech to the level of political speech. (6) However, the majority continues to say that the Central Hudson test applies to commercial speech regulation. The result, therefore, is increased uncertainty about the protection of commercial speech and (likely) the continued enhancement of First Amendment protection for corporations and commercial speech.