Under a commercial speech inquiry, it is the State's burden to justify its content-based law as consistent with the First Amendment. To sustain the targeted, content-based burden a statute imposes on protected expression, the State must show at least that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest. There must be a fit between the legislature's ends and the means chosen to accomplish those ends.
In 2007, Vermont enacted the Prescription Confidentiality Law. The aforementioned statute prohibited pharmacies, health insurers, and similar entities from selling prescriber-identifying information, absent the prescriber's consent. Where before, it has been the business routine of pharmacies to sell the prescriber-identifying information that they receive to data miners which would then lease the information to pharmaceutical manufacturers, the aforementioned law prohibited pharmacies, health insurers, and similar entities from selling prescriber-identifying information, absent the prescriber's consent. Furthermore, the said entities were prohibited from allowing prescriber-identifying information to be used for marketing, unless the prescriber consents. Subsequently, upon the passage of the law, respondents, Vermont data miners and an association of brand-name drug manufacturers sought declaratory and injunctive relief against Vermont state officials. According to the respondents, the statute violated their rights under the Free Speech Clause of the First Amendment. The District Court denied relief, but the Second Circuit reversed, holding that the Prescription Confidentiality Law unconstitutionally burdens the speech of pharmaceutical marketers and data miners without adequate justification.
Was the Prescription Confidentiality Law violative of the Free Speech Clause of the First Amendment?
The Court noted that on its face, Prescription Confidentiality Law enacted content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information. As such, the statute disfavored marketing; more than that, the statute disfavored specific speakers, namely pharmaceutical manufacturers. The Court opined that as a result of these content- and speaker-based rules, detailers could not obtain prescriber-identifying information, even though the information could have been purchased or acquired by other speakers with diverse purposes and viewpoints. Given the information's widespread availability and many permissible uses, the State's asserted interest in physician confidentiality did not justify the burden that the aforementioned law placed on protected expression. The Court ruled that concern for a few physicians who may have felt coerced and harassed by pharmaceutical marketers did not justify the law, a broad content-based rule. While Vermont's stated policy goals of lowering the costs of medical services and promoting public health may have been proper, Prescription Confidentiality Law did not advance them in a permissible way.