November 21, 2012
An Interpretation of Sorrell
In King v. General Information Services, the plaintiff alleged that the GIS, a credit reporting service, violated section 1681c of the Fair Credit Reporting Act by reporting information expressly excluded by the statute. GIS challenged the constitutionality of that section of the statute, arguing that Congress cannot prohibit dissemination of truthful commercial information after the Sorrell decision. Said the District Court for the Eastern District of Pennsylvania in part:
the Sorrell decision reaffirms the core meaning of the First Amendment and attempts to guide lawmakers trying to protect privacy interest without unduly suppressing speech.... However, the Supreme Court stopped far short of overhauling nearly three decades of precedent, which is clearly demonstrated by the fact that the opinion characterizes commercial speech precedence, including Central Hudson itself, for support. This alone is enough to find that the typical commercial speech inquiry under intermediate scrutiny remains valid law. If the Court wished to disrupt the long-established commercial speech doctrine as applying intermediate scrutiny, it would have expressly done so. Absent express
affirmation, this Court will refrain from taking such a leap.
Furthermore, the Sorrell decision is particular to the Sorrell facts. Sorrell features the clashing interests of the State of Vermont and the pharmaceutical industry during a period of spiraling healthcare costs. In an effort to reduce its growing healthcare expenditures,
Vermont embarked on a targeted cost-containment campaign and enacted a statute
that unambiguously regulated the use of prescriber identifying information in
order to curb the use of brand name drugs. ...The Supreme Court found that, "[t]he law on its face burden[ed] disfavored speech by disfavored speakers" and "ha[d] the effect of
preventing detailers — and only detailers — from communicating with physicians
in an effective and informative manner." ...Although the Court found that Vermont's policy goals of lowering medical costs and protecting public health were proper, the State's attempt to burden speech in order to "tilt public debate in a preferred direction" and
discourage demand for a particular disfavored product (brand name drugs) was
unconstitutional. ... Hence, the Sorrell decision largely rested on the fact that
Vermont was restraining a certain form of speech communicated by a certain
speaker solely because of the State's disagreement with it. Moreover, the commercial speech restriction at issue involved a matter of public concern. Accordingly, the Supreme Court correctly noted that such a law conflicted with First
Amendment principles so much that it would be constitutionally invalid
whether a special commercial speech inquiry or a more heightened form of
analysis was applied.
The instant matter, however, has nothing to do with the federal government trying to "tilt the public debate" in order to favor one form of speech over another. Here, the federal government enacted section 1681c of the FCRA to provide businesses with the most accurate and relevant information while simultaneously protecting the privacy rights of
consumers. More important, section 1681c's speech restriction is appropriately justified. The Sorrell Court did not take issue with Vermont's law merely because it imposed a content- and speaker-based restriction on commercial speech, but because its restriction
could not be justified on neutral grounds. ... Accordingly, this Court is not persuaded by GIS's argument and now proceeds under the commercial speech inquiry as applied in Central Hudson.
November 21, 2012 | Permalink
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