The following statement can be attributed to Berin Szoka, President of TechFreedom , regarding today’s 6-3 Supreme Court decision in Sorrell v. IMS Health Inc. to strike down a Vermont law restricting marketing to doctors based on their past history of writing drug prescriptions. The law required that doctors opt in before drug companies could use data about their prescription patterns to market (generally name-brand) drugs to them.
The Court has reaffirmed the core meaning of the First Amendment: government must trust the marketplace of ideas unless fraud or deception occurs.
The Court unequivocally declared that “information is speech,” including both its creation and dissemination, even while recognizing the privacy problems raised by the “capacity of technology to find and publish personal information.” Thus, restrictions on data collection, use and transfer must satisfy First Amendment scrutiny. Future courts will therefore strike down privacy laws that burden too much speech, such as by requiring opt-in rather than opt-out. The government must clearly establish the need for privacy regulation and consider the availability of less-restrictive alternatives, such as user empowerment, education and the enforcement of existing laws.
Policymakers should carefully consider the values recognized by the Court today before further clamping down on the flow of data that drives speech throughout the information economy.
Szoka is available for comment at firstname.lastname@example.org . TechFreedom filed an amicus curiae brief with the Supreme Court in this case (our media advisory ), led by First Amendment expert litigator Richard Ovelmen , and previously joined with other free speech groups in an amicus brief before the Second Circuit.