Supreme Court strikes down Vermont prescription privacy law

In a 6-3 decision today, the Supreme Court struck down Vermont?s Prescription Confidentiality Law, finding it to unconstitutionally burden the speech of pharmaceutical marketers and data miners without adequate justification.

Vermont's law which provided that unless the prescribing doctor consented, pharmacies and similar entities could not sell identifying information regarding the doctor's practices to pharmaceutical manufacturers or for other marketing purposes. (Individual patient confidentiality remains protected; this is about the doctor.) According to the three dissenting Justices (Breyer, Ginsburg, and Kagan), this prohibition could have been upheld on any number of constitutional grounds:

The Vermont statute before us adversely affects expression in one, and only one, way. It deprives pharmaceutical and data-mining companies of data, collected pursuant to the government?s regulatory mandate, that could help pharmaceutical companies create better sales messages. In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special ?heightened? standard of review when reviewing such an effort. And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech.

For the six Justices in the majority (the five you'd expect, plus Sotomayor), speech in aid of pharmaceutical marketing is protected by the Free Speech Clause, and the Vermont's law was insufficiently justified. But first things first (though it's late in the opinion), is this speech at all?

Source: http://feeds.dailykos.com/~r/dailykos/index/~3/16dCi-eySHY/-Supreme-Court-strikes-down-Vermont-prescription-privacy-law

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