Tuesday, August 10, 2010
The First Circuit has upheld a state law prohibiting prescription information "data mining," the second time it has ruled on such laws. In IMS Health Inc. v. Mills, the Court rejected constitutional challenges based in the First Amendment, finding that the statute regulates conduct, not speech.
We reject all of plaintiffs' constitutional challenges to section 1711-E(2-A). Plaintiffs' First Amendment challenges fail for the reasons stated in Ayotte: the statute regulates conduct, not speech, and even if it regulates commercial speech, that regulation satisfies constitutional standards. They also fail for reasons not present in Ayotte. The Maine statute constitutionally protects Maine prescribers' choice to opt in to confidentiality protection to avoid being subjected to unwanted solicitations based on their identifying data. We also reject the argument that the statute is void for vagueness.
Compare with the Court's decision in IMS v. Ayotte, F.3d 42 (1st Cir. 2008), cert. denied, 129 S. Ct. 2864 (2009) in which the majority said, "We say that the challenged elements of the Prescription Information Law principally regulate conduct because those provisions serve only to restrict the ability of data miners to aggregate, compile, and transfer information destined for narrowly defined commercial ends. In our view, this is a restriction on the conduct, not the speech, of the data miners. ...In other words, this is a situation in which information itself has become a commodity. The plaintiffs, who are in the business of harvesting, refining, and selling this commodity, ask us in essence to rule that because their product is information instead of, say, beef jerky, any regulation constitutes a restriction of speech. We think that such an interpretation stretches the fabric of the First Amendment beyond any rational measure."