TechFreedom filed an amicus brief today urging the Supreme Court to strike down a Vermont law restricting the use of data for marketing name brand pharmaceuticals to doctors — a practice called “detailing.” The Second Circuit struck down the law last November as an unconstitutional restriction on the commercial speech rights of companies that process data about doctors’ prescription histories, because Vermont’s asserted justifications for the statute-—reducing drug costs and protecting privacy–were unsubstantiated. Vermont then appealed to the Supreme Court.
Richard Ovelmen , a Partner at Jorden Burt LLP, long-time First Amendment litigator, and TechFreedom’s pro bono lead counsel on the brief stated, “I believe the Supreme Court will declare Vermont’s gratuitously paternalistic law unconstitutional.” Ovelmen denounced Vermont’s obvious intention to use this opt-in requirement to suppress speech recommending the use of name brand drugs over generally cheaper generic versions. “The Court has repeatedly stated that the First Amendment prohibits a state from discriminating against the dissemination of truthful information because it fears that the speech will cause recipients to make decisions it does not like.”
TechFreedom joined with other free speech advocates last year in a broader amicus brief urging the appeals court to strike down Vermont’s law. TechFreedom President Berin Szoka explained: “Several Justices have called for the court to abolish its distinction between commercial and non-commercial speech to protect all speech equally. But so long as the Court maintains its double standard, it must apply the highest level of First Amendment scrutiny to regulations affecting both forms of speech. This case is a perfect example of how restrictions on the free flow of data can burden not just marketing but also research, medical care, journalism and even sound policymaking.”
The so-called “data miners” who won at the appellate level process data from pharmacies about what kinds of drugs doctors prescribe, de-identify the data to protect patients’ privacy, and then transfer that processed data to a variety of downstream users, including drug companies, researchers, journalists, and health policymakers. The Vermont law requires that doctors opt-in before drug companies may use data about their prescription patterns to market drugs to them. While the law restricts the use of prescriber data only for drug marketing purposes, it would effectively shut off the availability of processed data for other purposes because only “detailing” can financially sustain data processing.
“Vermont has invented a specious privacy rationale for a law that does nothing to protect patient privacy,” said Szoka. “By applying strict scrutiny here, the Court can provide a clear framework for lawmakers to reconcile privacy and free speech. Vermont’s law clearly fails that test, but strict scrutiny won’t prevent future lawmakers from enacting effective laws narrowly tailored to addressing real, not imagined, privacy problems. As data about an audience’s likely interests becomes more and more essential to making all forms of speech effective, privacy and free speech will increasingly clash—unless the Court applies the logic of its past decisions to clarify that the First Amendment remains alive in the age of personalized messaging.”
Berin Szoka is available for comment at email@example.com
p>TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.