Thursday, June 23, 2011
The Supreme Court has found Vermont's data mining law unconstitutional. By a vote of 6 to 3, the Court ruled that the statute violated the rights of data-mining and drug companies. The state legislature had passed the law in 2007 to protect patient privacy. Writing for the majority, Justice Kennedy wrote that the statute was not simply regulating commercial speech. It enacted
content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information. The provision first forbids sale subject to exceptions based in large part on the content of a purchaser’s speech. For example, those who wish to engage in certain “educational communications,” may purchase the information. The measure then bars any disclosure when recipient speakers will use the information for marketing. Finally, the provision’s second sentence prohibits pharmaceutical manufacturers from using the information for marketing. The statute thus disfavors marketing, that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers. As a result of these content- and speaker-based rules, detailers cannot obtain prescriber-identifying information, even though the information may be purchased or acquired by other speakers with diverse purposes and viewpoints.
Therefore the majority applied heightened scrutiny. The dissenters would have applied Central Hudson.