564 U.S. 552 | SCOTUS | 2011
Lead Opinion
delivered the opinion of the Court.
Vermont law restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors. Vt. Stat. Ann., Tit. 18, §4631 (Supp. 2010). Subject to certain exceptions, the information may not be sold, disclosed by pharmacies for marketing purposes, or used for marketing by pharmaceutical manufacturers. Vermont argues that its prohibitions safeguard medical privacy and diminish the likelihood that marketing will lead to prescription decisions not in the best interests of patients or the State. It can be assumed that these interests are significant. Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont’s statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard.
I
A
Pharmaceutical manufacturers promote their drugs to doctors through a process called “detailing.” This often in
Pharmacies, as a matter of business routine and federal law, receive prescriber-identifying information when processing prescriptions. See 21 U. S. C. § 353(b); see also Vt. Bd. of Pharmacy Admin. Rule 9.1 (2009); Rule 9.2. Many pharmacies sell this information to “data miners,” firms that analyze prescriber-identifying information and produce reports on prescriber behavior. Data miners lease these reports to pharmaceutical manufacturers subject to nondisclosure agreements. Detailers, who represent the manufacturers, then use the reports to refine their marketing tactics and increase sales.
In 2007, Vermont enacted the Prescription Confidentiality Law. The measure is also referred to as Act 80. It has several components. The central provision of the present case is § 4631(d).
“A health insurer, a self-insured employer, an electronic transmission intermediary, a pharmacy, or other similar entity shall not sell, license, or exchange for value regu*559 lated records containing prescriber-identifiable information, nor permit the use of regulated records containing prescriber-identifiable information for marketing or promoting a prescription drug, unless the prescriber consents .... Pharmaceutical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents . . . .”
The quoted provision has three component parts. The provision begins by prohibiting pharmacies, health insurers, and similar entities from selling prescriber-identifying information, absent the prescriber’s consent. The parties here dispute whether this clause applies to all sales or only to sales for marketing. The provision then goes on to prohibit pharmacies, health insurers, and similar entities from allowing prescriber-identifying information to be used for marketing, unless the prescriber consents. This prohibition in effect bars pharmacies from disclosing the information for marketing purposes. Finally, the provision’s second sentence bars pharmaceutical manufacturers and pharmaceutical marketers from using prescriber-identifying information for marketing, again absent the prescriber’s consent. The Vermont attorney general may pursue civil remedies against violators. § 4631(f).
Separate statutory provisions elaborate the scope of the prohibitions set out in § 4631(d). “Marketing” is defined to include “advertising, promotion, or any activity” that is “used to influence sales or the market share of a prescription drug.” § 4631(b)(5). Section 4631(c)(1) further provides that Vermont’s Department of Health must allow “a prescriber to give consent for his or her identifying information to be used for the purposes” identified in § 4631(d). Finally, the Act’s prohibitions on sale, disclosure, and use are subject to a list of exceptions. For example, prescriber-identifying information may be disseminated or used for “health care research”; to enforce “compliance” with health insurance formularies
Act 80 also authorized funds for an “evidence-based prescription drug education program” designed to provide doctors and others with “information and education on the therapeutic and cost-effective utilization of prescription drugs.” § 4622(a)(1). An express aim of the program is to advise prescribers “about commonly used brand-name drugs for which the patent has expired” or will soon expire. § 4622(a)(2). Similar efforts to promote the use of generic pharmaceuticals are sometimes referred to as “counter-detailing.” App. 211; see also IMS Health Inc. v. Ayotte, 550 F. 3d 42, 91 (CA1 2008) (Lipez, J., concurring and dissenting). The counterdetailer’s recommended substitute may be an older, less expensive drug and not a bioequivalent of the brand-name drug the physician might otherwise prescribe. Like the pharmaceutical manufacturers whose efforts they hope to resist, counterdetailers in some States use prescriber-identifying information to increase their effectiveness. States themselves may supply the prescriber-identifying information used in these programs. See App. 313; id., at 375 (“[W]e use the data given to us by the State of Pennsylvania ... to figure out which physicians to talk to”); see also id., at 427-429 (Director of the Office of Vermont Health Access explaining that the office collects prescriber-identifying information but “does not at this point in time have a counterdetailing or detailing effort”). As first enacted, Act 80 also required detailers to provide information about alternative treatment options. The Vermont Legislature, however, later repealed that provision. 2008 Vt. Laws No. 89, § 3.
Act 80 was accompanied by legislative findings. 2007 Vt. Laws No. 80, §1. Vermont found, for example, that the “goals of marketing programs are often in conflict with the
B
The present ease involves two consolidated suits. One was brought by three Vermont data miners, the other by an association of pharmaceutical manufacturers that produce ■brand-name drugs. These entities are the respondents here. Contending that § 4631(d) violates their First Amendment rights as incorporated by the Fourteenth Amendment, respondents sought declaratory and injunctive relief against petitioners, the Attorney General and other officials of the State of Vermont.
After a bench trial, the United States District Court for the District of Vermont denied relief. 631 F. Supp. 2d 434
The decision of the Second Circuit is in conflict with decisions of the United States Court of Appeals for the First Circuit concerning similar legislation enacted by Maine and New Hampshire. See IMS Health Inc. v. Mills, 616 F. 3d 7 (CA1 2010) (Maine); Ayotte, supra (New Hampshire). Recognizing a division of authority regarding the constitutionality of state statutes, this Court granted certiorari. 562 U. S. 1127 (2011).
II
The beginning point is the text of § 4631(d). In the proceedings below, Vermont stated that the first sentence of § 4631(d) prohibits pharmacies and other regulated entities from selling or disseminating prescriber-identifying information for marketing. The information, in other words, could be sold or given away for purposes other than marketing. The District Court and the Court of Appeals accepted the State’s reading. See 630 F. 3d, at 276. At oral argument in this Court, however, the State for the first time advanced an alternative reading of § 4631(d) — namely, that pharmacies, health insurers, and similar entities may not sell prescriber-identifying information for any purpose, subject to the statu
In any event, § 4631(d) cannot be sustained even under the interpretation the State now adopts. As a consequence this Court can assume that the opening clause of § 4631(d) prohibits pharmacies, health insurers, and similar entities from selling prescriber-identifying information, subject to the statutory exceptions set out at § 4631(e). Under that reading, pharmacies may sell the information to private or academic researchers, see § 4631(e)(1), but not, for example, to pharmaceutical marketers. There is no dispute as to the remainder of § 4631(d). It prohibits pharmacies, health insurers, and similar entities from disclosing or otherwise allowing prescriber-identifying information to be used for marketing. And it bars pharmaceutical manufacturers and detailers from using the information for marketing. The questions now are whether § 4631(d) must be tested by heightened judicial scrutiny and, if so, whether the State can justify the law
A
1
On its face, Vermont’s law enacts content- and speaker-based restrictions on the sale, disclosure, and use of
Any doubt that § 4631(d) imposes an aimed, content-based burden on detailers is dispelled by the record and by formal legislative findings. As the District Court noted, “[p]har-maceutical manufacturers are essentially the only paying customers of the data vendor industry”; and the almost invariable rule is that detailing by pharmaceutical manufacturers is in support of brand-name drugs. 631 F. Supp. 2d, at 451. Vermont’s law thus has the effect of preventing detail-ers — and only detailers — from communicating with physicians in an effective and informative manner. Cf. Edenfield
Act 80 is designed to impose a specific, content-based burden on protected expression. It follows that heightened judicial scrutiny is warranted. See Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 418 (1993) (applying heightened scrutiny to “a categorical prohibition on the use of newsracks to disseminate commercial messages”); id., at 429 (“[TJhe very basis for the regulation is the difference in content between ordinary newspapers and commercial speech” in the form of “commercial handbills .... Thus, by any commonsense understanding of the term, the ban in this case is ‘content based’” (some internal quotation marks omitted)); see also Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 658 (1994) (explaining that strict scrutiny applies to regulations reflecting “aversion” to what “disfavored speakers” have to say). The Court has recognized that the “distinction between laws burdening and laws banning speech is but a
The First Amendment requires heightened scrutiny whenever the government creates “a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989); see also Renton v. Playtime Theatres, Inc., 475 U. S. 41, 48 (1986) (explaining that “'content-neutral’ speech regulations” are “those that are justified without reference to the content of the regulated speech” (internal quotation marks omitted)). A government bent on frustrating an impending demonstration might pass a law demanding two years’ notice before the issuance of parade permits. Even if the hypothetical measure on its face appeared neutral as to content and speaker, its purpose to suppress speech and its unjustified burdens on expression would render it unconstitutional. Ibid. Commercial speech is no exception. See Discovery Network, supra, at 429-430 (commercial speech restriction lacking a “neutral justification” was not content neutral). A “consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue.” Bates v. State Bar of Ariz., 433 U. S. 350, 364 (1977). That reality has great relevance in the fields of medicine and public health, where information can save lives.
2
The State argues that heightened judicial scrutiny is unwarranted because its law is a mere commercial regulation.
But § 4631(d) imposes more than an incidental burden on protected expression. Both on its face and in its practical operation, Vermont’s law imposes a burden based on the content of speech and the identity of the speaker. See supra, at 563-565. While the burdened speech results from an economic motive, so too does a great deal of vital expression. See Bigelow v. Virginia, 421 U. S. 809, 818 (1975); New York Times Co. v. Sullivan, 376 U. S. 254, 266 (1964); see also United States v. United Foods, Inc., 533 U. S. 405, 410-411 (2001) (applying “First Amendment scrutiny” where speech effects were not incidental and noting that “those whose business and livelihood depend in some way upon the product involved no doubt deem First Amendment protection to be just as important for them as it is for other discrete, little noticed groups”). Vermont’s law does not simply have an effect on speech, but is directed at. certain content and is aimed at particular speakers. The Constitution “does not enact Mr. Herbert Spencer’s Social Statics.” Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting). It does enact the First Amendment.
Vermont further argues that § 4631(d) regulates not speech but simply access to information. Prescriber-identifying information was generated in compliance with a
United Reporting is distinguishable in at least two respects. First, Vermont has imposed a restriction on access to information in private hands. This confronts the Court with a point reserved, and a situation not addressed, in United Reporting. Here, unlike in United Reporting, we do have “a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses.” Id., at 40. The difference is significant. An individual’s right to speak is implicated when information he or she possesses is subjected to “restraints on the way in which the information might be used” or disseminated. Seattle Times Co. v. Rhinehart, 467 U. S. 20, 32 (1984); see also Bartnicki v. Vopper, 532 U. S. 514, 527 (2001); Florida Star v. B. J. F., 491 U. S. 524 (1989); New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam). In Seattle Times, this Court applied heightened judicial scrutiny before sustaining a trial court order prohibiting a newspaper’s disclosure of information it learned through coercive discovery. It is true that respondents here, unlike the newspaper in
United Reporting is distinguishable for a second and even more important reason. The plaintiff in United Reporting had neither “attempted] to qualify” for access to the government’s information nor presented an as-applied claim in this Court. Id., at 40. As a result, the Court assumed that the plaintiff had not suffered a personal First Amendment injury and could prevail only by invoking the rights of others through a facial challenge. Here, by contrast, respondents claim — with good reason — that § 4631(d) burdens their own speech. That argument finds support in the separate writings in United Reporting, which were joined by eight Justices. All of those writings recognized that restrictions on the disclosure of government-held information can facilitate or burden the expression of potential recipients and so transgress the First Amendment. See id., at 42 (Scalia, J., concurring) (suggesting that “a restriction upon access that allows access to the press . . ., but at the same time denies access to persons who wish to use the information for certain speech purposes, is in reality a restriction upon speech”); id., at 43 (Ginsburg, J., concurring) (noting that “the provision of [government] information is a kind of subsidy to people who wish to speak” about certain subjects, “and once a State decides to make such a benefit available to the public, there are no doubt limits to its freedom to decide how that benefit will be distributed”); id., at 46 (Stevens, J., dissenting) (concluding that, “because the State’s discrimination is based on its desire to prevent the information from being used for constitutionally protected purposes, [i]t must assume the burden of justifying its conduct”). Vermont’s law imposes
The State also contends that heightened judicial scrutiny is unwarranted in this case because sales, transfer, and use of prescriber-identifying information are conduct, not speech. Consistent with that submission, the United States Court of Appeals for the First Circuit has characterized prescriber-identifying information as a mere “commodity” with no greater entitlement to First Amendment protection than “beef jerky.” Ayotte, 550 F. 3d, at 52-53. In contrast the courts below concluded that a prohibition on the sale of prescriber-identifying information is a content-based rule akin to a ban on the sale of cookbooks, laboratory results, or train schedules. See 630 F. 3d, at 271-272 (“The First Amendment protects even dry information, devoid of advocacy, political relevance, or artistic expression” (internal quotation marks and brackets omitted)); 631 F. Supp. 2d, at 446 (“A restriction on disclosure is a regulation of speech, and the ‘sale’ of [information] is simply disclosure for profit”).
This Court has held that the creation and dissemination of information are speech within the meaning of the First Amendment. See, e. g., Bartnicki, supra, at 527 (“[I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct” (some internal quotation marks omitted)); Rubin v. Coors Brewing Co., 514 U. S. 476, 481 (1995) (“information on beer labels” is speech); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 759 (1985) (plurality opinion) (credit report is “speech”). Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs. There is thus a strong argument that prescriber-identifying information is speech for First Amendment purposes.
B
In the ordinary case it is all but dispositive to conclude that a law is content based and, in practice, viewpoint discriminatory. See R. A. V., 505 U. S., at 382 (“Content-based regulations are presumptively invalid”); id., at 391-392. The State argues that a different analysis applies here because, assuming § 4631(d) burdens speech at all, it at most burdens only commercial speech. As in previous cases, however, the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied. See, o. g., Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173, 184 (1999). For the same reason there is no need to determine whether all speech hampered by § 4631(d) is commercial, as our cases have used that term. Cf. Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 474 (1989) (discussing whether “pure speech and commercial speech” were inextricably intertwined, so that “the entirety must... be classified as noncommercial”).
Tinder a commercial speech inquiry, it is the State’s burden to justify its content-based law as consistent with the First
The State’s asserted justifications for § 4631(d) come under two general headings. First, the State contends that its law is necessary to protect medical privacy, including physician confidentiality, avoidance of harassment, and the integrity of the doctor-patient relationship. Second, the State argues that § 4631(d) is integral to the achievement of policy objectives — namely, improved public health and reduced healthcare costs. Neither justification withstands scrutiny.
1
Vermont argues that its physicians have a “reasonable expectation” that their preseriber-identifying information “will not be used for purposes other than . . . filling and processing” prescriptions. See 2007 Vt. Laws No. 80, § 1(29). It may be assumed that, for many reasons, physicians have an interest in keeping their prescription decisions confidential. But § 4631(d) is not drawn to serve that interest. Under Vermont's law, pharmacies may share preseriber-identifying information with anyone for any reason save one: They must not allow the information to be used for marketing. Exceptions further allow pharmacies to sell preseriber-identifying
Perhaps the State could have addressed physician confidentiality through “a more coherent policy.” Greater New Orleans Broadcasting, supra, at 195; see also Discovery Network, 507 U. S., at 428. For instance, the State might have advanced its asserted privacy interest by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances. See, e. g., Health Insurance Portability and Accountability Act of 1996, 42 U. S. C. § 1320d-2; 45 CFR pts. 160 and 164 (2010). A statute of that type would present quite a different ease from the one presented here. But the State did not enact a statute with that purpose or design. Instead, Vermont made prescriber-identifying information available to an almost limitless audience. The explicit structure of the statute allows the information to be studied and used by all but a narrow class of disfavored speakers. Given the information’s widespread availability and many permissible uses, the State’s asserted interest in physician confidentiality does not justify the burden that § 4631(d) places on protected expression.
The State points out that it allows doctors to forgo the advantages of § 4631(d) by consenting to the sale, disclosure, and use of their preseriber-identifying information. See § 4631(c)(1). It is true that private decisionmaking can avoid governmental partiality and thus insulate privacy measures from First Amendment challenge. See Rowan v. Post Office
Respondents suggest that a further defect of § 4631(d) lies in its presumption of applicability absent a physician’s election to the contrary. Vermont’s law might burden less speech if it came into operation only after an individual choice, but a revision to that effect would not necessarily save § 4631(d). Even reliance on a prior election would not suffice, for instance, if available categories of coverage by design favored speakers of one political persuasion over another. Rules that burden protected expression may not be sustained when the options provided by the State are too narrow to advance legitimate interests or too broad to protect speech. As already explained, § 4631(d) permits extensive use of prescriber-identifying information and so does not advance the State’s asserted interest in physician confidentiality. The limited range of available privacy options instead reflects the State’s impermissible purpose to burden
The State also contends that § 4631(d) protects doctors from “harassing sales behaviors.” 2007 Vt. Laws No. 80, § 1(28). “Some doctors in Vermont are experiencing an undesired increase in the aggressiveness of pharmaceutical sales representatives,” the Vermont Legislature found, “and a few have reported that they felt coerced and harassed.” § 1(20). It is doubtful that concern for “a few” physicians who may have “felt coerced and harassed” by pharmaceutical marketers can sustain a broad content-based rule like § 4631(d). Many are those who must endure speech they do not like, but that is a necessary cost of freedom. See Erznoznik v. Jacksonville, 422 U. S. 205, 210-211 (1975); Cohen v. California, 403 U. S. 15, 21 (1971). In any event the State offers no explanation why remedies other than content-based rules would be inadequate. See 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 503 (1996) (opinion of Stevens, J.). Physicians can, and often do, simply decline to meet with detailers, including detailers who use prescriber-identifying information. See, e. g., App. 180, 333-334. Doctors who wish to forgo detailing altogether are free to give “No Solicitation” or “No Detailing” instructions to their office managers or to receptionists at their places of work. Personal privacy even in one’s own home receives “ample protection” from the “resident’s unquestioned right to refuse to engage in conversation with unwelcome visitors.” Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U. S. 150, 168 (2002); see also Bolger, supra, at 72. A physician’s office is no more private and is entitled to no greater protection.
Vermont argues that detailers’ use of prescriber-identifying information undermines the doctor-patient relationship by allowing detailers to influence treatment deci
2
The State contends that § 4631(d) advances important public policy goals by lowering the costs of medical services and promoting public health. If prescriber-identifying information were available for use by detailers, the State contends, then detailing would be effective in promoting brand-name drugs that are more expensive, and less safe than generic alternatives. This logic is set out at length in the legislative findings accompanying § 4631(d). Yet at oral argument here, the State declined to acknowledge that §4631(d)’s objective purpose and practical effect were to inhibit detailing and alter doctors’ prescription decisions. See Tr. of Oral Arg.
While Vermont’s stated policy goals may be proper, § 4631(d) does not advance them in a permissible way. As the Court of Appeals noted, the “state’s own explanation of how" § 4631(d) "advances its interests cannot be said to be direct.” 630 F. 3d, at 277. The State seeks to achieve its policy objectives through the indirect means of restraining certain speech by certain speakers — that is, by diminishing detailers’ ability to influence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the “fear that people would make bad decisions if given truthful information” cannot justify content-based burdens on speech. Thompson, 535 U. S., at 374; see also Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 769-770 (1976). “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” 44 Liquormart, supra, at 503 (opinion of Stevens, J.); see also Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 97 (1977). These precepts apply with full force when the audience, in this case prescribing physicians, consists of “sophisticated and experienced” consumers. Edenfield, 507 U. S., at 775.
As Vermont’s legislative findings acknowledge, the premise of § 4631(d) is that the force of speech can justify the government’s attempts to stifle it. Indeed the State defends the law by insisting that “pharmaceutical marketing has a strong influence on doctors’ prescribing practices.” Brief for Petitioners 49-50. This reasoning is incompatible with the First Amendment. In an attempt to reverse a disfavored trend in public opinion, a State could not ban campaigning with slogans, picketing with signs, or marching during the daytime. Likewise the State may not seek to remove a popular but disfavored product from the market
The defect in Vermont’s law is made clear by the fact that many listeners find detailing instructive. Indeed the record demonstrates that some Vermont doctors view targeted detailing based on prescriber-identifying information as “very helpful” because it allows detailers to shape their messages to each doctor’s practice. App. 274; see also id., at 181, 218, 271-272. Even the United States, which appeared here in support of Vermont, took care to dispute the State’s “unwarranted view that the dangers of [n]ew drugs outweigh their benefits to patients.” Brief for United States as Amicus Curiae 24, n. 4. There are divergent views regarding detailing and the prescription of brand-name drugs. Under the Constitution, resolution of that debate must result from free and uninhibited speech. As one Vermont physician put it: “We have a saying in medicine, information is power. And the more you know, or anyone knows, the better decisions can be made.” App. 279. There are similar sayings in law, including that “information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.” Virginia Bd., 425 U. S., at 770. The choice, “between the dangers of suppressing information, and the dangers of its misuse if it is freely available,” is one that “the First Amendment makes for us.” Ibid.
Vermont may be displeased that detailers who use prescriber-identifying information are effective in promoting brand-name drugs. The State can express that view through its own speech. See Linmark, supra, at 97; cf. § 4622(a)(1) (establishing a prescription drug educational program). But a State’s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a pre
It is true that content-based restrictions on protected expression are sometimes permissible, and that principle applies to commercial speech. Indeed the government’s legitimate interest in protecting consumers from “commercial harms” explains “why commercial speech can be subject to greater governmental regulation than noncommercial speech.” Discovery Network, 507 U. S., at 426; see also 44 Liquormart, 517 U. S., at 502 (opinion of Stevens, J.). The Court has noted, for example, that “a State may choose to regulate price advertising in one industry but not in others, because the risk of fraud ... is in its view greater there.” R. A. V., 505 U. S., at 388-389 (citing Virginia Bd., supra, at 771-772). Here, however, Vermont has not shown that its law has a neutral justification.
The State nowhere contends that detailing is false or misleading within the meaning of this Court’s First Amendment precedents. See Thompson, supra, at 373. Nor does the State argue that the provision challenged here will prevent false or misleading speech. Cf. post, at 589-590 (Breyer, J., dissenting) (collecting regulations that the government might defend on this ground). The State’s interest in burdening the speech of detailers instead turns on nothing more than a difference of opinion. See Bolger, 463 U. S., at 69; Thompson, supra, at 376.
* * *
The capacity of technology to find and publish personal information, including records required by the government, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure. In con
If Vermont’s statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position. Here, however, the State gives possessors of the information broad discretion and wide latitude in disclosing the information, while at the same time restricting the information’s use by some speakers and for some purposes, even while the State itself can use the information to counter the speech it seeks to suppress. Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers.
When it enacted § 4631(d), the Vermont Legislature found that the “marketplace for ideas on medicine safety and effectiveness is frequently one-sided in that brand-name companies invest in expensive pharmaceutical marketing campaigns to doctors.” 2007 Vt. Laws No. 80, §1(4). “The goals of marketing programs,” the legislature said, “are often in conflict with the goals of the state.” § 1(3). The text of § 4631(d), associated legislative findings, and the record developed in the District Court establish that Vermont enacted its law for this end. The State has burdened a form of protected expression that it found too persuasive. At the same time, the State has left unburdened those speakers whose messages are in accord with its own views. This the State cannot do.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Dissenting Opinion
dissenting.
The Vermont statute before us adversely affects expression in one, and only one, way. It deprives pharmaceutical
I
The Vermont statute before us says pharmacies and certain other entities
“shall not [(1)] sell . . . regulated records containing preseriber-identifiable information, nor [(2)] permit the use of [such] records ... for marketing or promoting a prescription drug, unless the prescriber consents.” Vt. Stat. Ann., Tit. 18, § 4631(d) (Supp. 2010).
It also says that
“[(3)] [pharmaceutical manufacturers and pharmaceutical marketers shall not use preseriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents.” Ibid.
For the most part, I shall focus upon the first and second of these prohibitions. In Part IV, I shall explain why the third prohibition makes no difference to the result.
I — i
In Glickman v. Wileman Brothers & Elliott, Inc., 521 U. S. 457 (1997), this Court considered the First Amendment’s application to federal agricultural commodity mar
In this case I would ask whether Vermont’s regulatory provisions work harm to First Amendment interests that is disproportionate to their furtherance of legitimate regulatory objectives. And in doing so, I would give significant weight to legitimate commercial regulatory objectives — as this Court did in Glickman. The far stricter, specially “heightened” First Amendment standards that the majority would apply to this instance of commercial regulation are out of place here. Ante, at 657, 563, 565, 566, 568, 570, 571.
A
Because many, perhaps most, activities of human beings living together in communities take place through speech, and because speech-related risks and offsetting justifications differ depending upon context, this Court has distinguished for First Amendment purposes among different contexts in which speech takes place. See, e. g., Snyder v. Phelps, 562 U. S. 443, 451-452 (2011). Thus, the First Amendment imposes tight constraints upon government efforts to restrict, e.g., “core” political speech, while imposing looser constraints when the government seeks to restrict, e. g., commercial speech, the speech of its own employees, or the regulation-related speech of a firm subject to a traditional regulatory program. Compare Boos v. Barry, 485 U. S. 312, 321 (1988) (political speech), with Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980) (commercial speech), Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968) (government employees), and Glickman, supra (economic regulation).
At the same time, our cases make clear that the First Amendment offers considerably less protection to the maintenance of a free marketplace for goods and services. See Florida Bar v. Went For It, Inc., 515 U. S. 618, 623 (1995) (“We have always been careful to distinguish commercial speech from speech at the First Amendment’s core”). And they also reflect the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted.
Thus this Court has recognized that commercial speech including advertising has an “informational function” and is not “valueless in the marketplace of ideas.” Central Hudson, supra, at 563; Bigelow v. Virginia, 421 U. S. 809, 826 (1975). But at the same time it has applied a less than strict, “intermediate” First Amendment test when the government directly restricts commercial speech. Under that test, government laws and regulations may significantly restrict speech, as long as they also “directly advance” a “substantial” government interest that could not “be served as well by a more limited restriction.” Central Hudson, supra, at 564. Moreover, the Court has found that “sales practices” that are “misleading, deceptive, or aggressive” lack the protection of even this “intermediate” standard. 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 501 (1996) (opinion of Stevens, J.); see also Central Hudson, supra, at 563; Virginia Bd. of Pharmacy v. Virginia Citizens Consumer
“ ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455-456 (1978) (quoting Virginia Bd. of Pharmacy, supra, at 771, n. 24; emphasis added).
The Court has also normally applied a yet more lenient approach to ordinary commercial or regulatory legislation that affects speech in less direct ways. In doing so, the Court has taken account of the need in this area of law to defer significantly to legislative judgment — as the Court has done in cases involving the Commerce Clause or the Due Process Clause. See Glickman, 521 U. S., at 475-476. “Our function” in such cases, Justice Brandéis said, “is only to determine the reasonableness of the legislature’s belief in the existence of evils and in the effectiveness of the remedy provided.” New State Ice Co. v. Liebmann, 285 U. S. 262, 286-287 (1932) (dissenting opinion); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955) (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it”); United States v. Carolene Products Co., 304 U. S. 144, 152 (1938) (“[RJegulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators”).
To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial message) would work at cross-purposes with this more basic constitutional approach. Since ordinary regulatory programs can
“retur[n] to the bygone era of Lochner v. New York, 198 U. S. 45 (1905), in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies.” 447 U. S., at 589.
B
There are several reasons why the Court should review Vermont’s law “under the standard appropriate for the review of economic regulation,” not “under a heightened standard appropriate for the review of First Amendment issues.” Glickman, 521 U. S., at 469. For one thing, Vermont’s statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale
For another thing, the same First Amendment standards that apply to Vermont here would apply to similar regulatory actions taken by other States or by the Federal Government acting, for example, through Food and Drug Administration (FDA) regulation. (And the Federal Government’s ability to pre-empt state laws that interfere with existing or contemplated federal forms of regulation is here irrelevant.)
Further, the statute’s requirements form part of a traditional, comprehensive regulatory regime. Cf. United Foods, supra, at 411. The pharmaceutical drug industry has been heavily regulated at least since 1906. See Pure Food and Drugs Act, 34 Stat. 768. Longstanding statutes and regulations require pharmaceutical companies to engage in complex drug testing to ensure that their drugs are both “safe” and “effective.” 21 U. S. C. §§ 355(b)(1), (d). Only then can the drugs be marketed, at which point drug companies are subject to the FDA’s exhaustive regulation of the content of drug labels and the manner in which drugs can be advertised and sold. § 352(f)(2); 21 CFR pts. 201-203 (2010).
Finally, Vermont’s statute is directed toward information that exists only by virtue of government regulation. Under federal law, certain drugs can be dispensed only by a pharmacist operating under the orders of a medical practitioner. 21 U. S. C. § 353(b). Vermont regulates the qualifications, the fitness, and the practices of pharmacists themselves, and requires pharmacies to maintain a “patient record system” that, among other things, tracks who prescribed which drugs. Vt. Stat. Ann., Tit. 26, §§ 2041(a), 2022(14) (Supp. 2010); Vt. Bd. of Pharmacy Admin. Rules (Pharmacy Rules) 9.1, 9.24(e) (2009). But for these regulations, pharmacies would have no way to know who had told customers to buy which drugs (as is the case when a doctor tells a patient to take a daily dose of aspirin).
Such regulatory actions are subject to judicial review, e. g., for compliance with applicable statutes. And they would normally be subject to review under the Administrative Procedure Act to make certain they are not “arbitrary, capricious, [or] an abuse of discretion.” 5 U. S. C. §706(2)(A) (2006 ed.). In an appropriate case, such review might be informed by First Amendment considerations. But regulatory actions of the kind present here have not previously been thought to raise serious additional constitutional concerns under the First Amendment. But cf. Trans Union LLC v. FTC, 536 U. S. 915 (2002) (Kennedy, J., dissenting from denial of certiorari) (questioning ban on use of consumer credit reports for target marketing). The ease with which one can point to actual or hypothetical examples with potentially adverse speech-related effects at least roughly comparable to those at issue here indicates the danger of applying a “heightened” or “intermediate” standard of First Amendment review where typical regulatory actions affect commercial speech (say, by withholding information that a
Thus, it is not surprising that, until today, this Court has never found that the First Amendment prohibits the government from restricting the use of information gathered pursuant to a regulatory mandate — whether the information rests in government files or has remained in the hands of the private firms that gathered it. But cf. ante, at 566-570. Nor has this Court ever previously applied any form of “heightened” scrutiny in any even roughly similar case. See Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32 (1999) (no heightened scrutiny); compare Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 426 (1993) (“[Commercial speech can be subject to greater governmental regulation than noncommercial speech” because of the government’s “interest in preventing commercial harms”), with ante, at 565, 566, 573, 579 (suggesting that Discovery Network supports heightened scrutiny when regulations target commercial speech).
C
The Court (suggesting a standard yet stricter than Central Hudson) says that we must give content-based restrictions that burden speech “heightened” scrutiny. It adds that “[cjommercial speech is no exception.” Ante, at 566. And the Court then emphasizes that this is a case involving both “content-based” and “speaker-based” restrictions. See ante, at 563, 564, 565, 566, 568, 570, 571, 572, 574, 575, 577, 579, 580.
But neither of these categories — “content-based” nor “speaker-based” — has ever before justified greater scrutiny when regulatory activity affects commercial speech. See, e. g., Capital Broadcasting Co. v. Mitchell, 333 P. Supp. 582 (DC 1971) (three-judge court), summarily aff’d sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U. S. 1000 (1972) (upholding ban on radio and television marketing of tobacco). And the absence of any such precedent is understandable.
Nor, in the context of a regulatory program, is it unusual for particular rules to be “speaker-based,” affecting only a class of entities, namely, the regulated firms. An energy regulator, for example, might require the manufacturers of home appliances to publicize ways to reduce energy consumption, while exempting producers of industrial equipment. See, e. g., 16 CFR pt. 305 (2011) (prescribing labeling requirements for certain home appliances); Nev. Admin. Code §§ 704.804, 704.808 (2010) (requiring utilities to provide consumers with information on conservation). Or a trade regulator might forbid a particular firm to make the true claim that its cosmetic product contains “cleansing grains that scrub away dirt and excess oil” unless it substantiates that claim with detailed backup testing, even though oppo
If the Court means to create constitutional barriers to regulatory rules that might affect the content of a commercial message, it has embarked upon an unprecedented task — a task that threatens significant judicial interference with widely accepted regulatory activity. Cf, e. g., 21 CFR pts. 201-203. Nor would it ease the task to limit its “heightened” scrutiny to regulations that only affect certain speakers. As the examples that I have set forth illustrate, many regulations affect only messages sent by a small class of regulated speakers, for example, electricity generators or natural gas pipelines.
The Court also uses the words “aimed” and “targeted” when describing the relation of the statute to drug manufacturers. Ante, at 564, 565, 567, 572, 578. But, for the reasons just set forth, to require “heightened” scrutiny on this
In short, the case law in this area reflects the need to ensure that the First Amendment protects the “marketplace of ideas,” thereby facilitating the democratic creation of sound government policies without improperly hampering the ability of government to introduce an agenda, to implement its policies, and to favor them to the exclusion of contrary policies. To apply “heightened” scrutiny when the regulation of commercial activities (which often involve speech) is at issue is unnecessarily to undercut the latter constitutional goal. The majority’s view of this case presents that risk.
Moreover, given the sheer quantity of regulatory initiatives that touch upon commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitutional-
Nothing in Vermont’s statute undermines the ability of persons opposing the State’s policies to speak their mind or to pursue a different set of policy objectives through the democratic process. Whether Vermont’s regulatory statute “targets” drug companies (as opposed to affecting them unintentionally) must be beside the First Amendment point.
This does not mean that economic regulation having some effect on speech is always lawful. Courts typically review the lawfulness of statutes for rationality and of regulations (if federal) to make certain they are not “arbitrary, capricious, [or] an abuse of discretion.” 5 U. S. C. § 706(2)(A). And our valuable free-speech tradition may play an important role in such review. But courts do not normally view these matters as requiring “heightened” First Amendment scrutiny — and particularly not the unforgiving brand of “intermediate” scrutiny employed by the majority. Because the imposition of “heightened” scrutiny in such instances would significantly change the legislative/judicial balance, in a way that would significantly weaken the legislature’s authority to regulate commerce and industry, I would not apply a “heightened” First Amendment standard of review in this case.
Turning to the constitutional merits, I believe Vermont’s statute survives application of Central Hudson’s "intermediate” commercial speech standard as well as any more limited “economic regulation” test.
A
The statute threatens only modest harm to commercial speech. I agree that it withholds from pharmaceutical companies information that would help those entities create a more effective selling message. But I cannot agree with the majority that the harm also involves unjustified discrimination in that it permits “pharmacies” to “share prescriber-identifying information with anyone for any reason” (but marketing). Ante, at 572. Whatever the First Amendment relevance of such discrimination, there is no evidence that it exists in Vermont. The record contains no evidence that prescriber-identifying data is widely disseminated. See App. 248, 255. Cf. Burson v. Freeman, 504 U. S. 191, 207 (1992) (plurality opinion) (“States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist”); Bates v. State Bar of Ariz., 433 U. S. 350, 380 (1977) (“[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context”).
The absence of any such evidence likely reflects the presence of other legal rules that forbid widespread release of prescriber-identifying information. Vermont’s Pharmacy Rules, for example, define “unprofessional conduct” to include “[d]ivulging or revealing to unauthorized persons patient or practitioner information or the nature of professional pharmacy services rendered.” Rule 20.1(i) (emphasis added); see also Reply Brief for Petitioners 21. The statute reinforces this prohibition where pharmaceutical marketing is at issue. And the exceptions that it creates are narrow and concern common and often essential uses of prescription
Nor can the majority find record support for its claim that the statute helps “favored” speech and imposes a “burde[n]” upon “disfavored speech by disfavored speakers.” Ante, at 574. The Court apparently means that the statute (1) prevents pharmaceutical companies from creating individualized messages that would help them sell their drugs more effectively, but (2) permits “counterdetailing” programs, which often promote generic drugs, to create such messages using prescriber-identifying data. I am willing to assume, for argument’s sake, that this consequence would significantly increase the statute’s negative impact upon commercial speech. But cf. 21 CFR §§ 202.1(e)(1), (e)(5)(fi) (FDA’s “fair balance” requirement); App. 193 (no similar FDA requirement for nondrug manufacturers). The record before us, however, contains no evidentiary basis for the conclusion that any such individualized counterdetailing is widespread, or exists at all, in Vermont.
The majority points out, ante, at 560, that Act 80, of which § 4631 was a part, also created an “evidence-based prescription drug education program,” in which the Vermont Department of Health, the Department of Vermont Health Access, and the University of Vermont, among others, work together “to provide information and education on the therapeutic and cost-effective utilization of prescription drugs” to health professionals responsible for prescribing and dispensing
The majority cites testimony by two witnesses in support of its statement that “States themselves may supply the prescriber-identifying information used in [counterdetailing] programs.” Ante, at 560. One witness explained that academic detailers in Pennsylvania work with state health officials to identify physicians serving patients whose health care is likewise state provided. App. 375. The other, an IMS Health officer, observed that Vermont has its own multipayer database containing prescriber-identifying data, which could be used to talk to doctors about their prescription patterns and the lower costs associated with generics. Id., at 313. But nothing in the record indicates that any “counterdetailing” of this kind has ever taken place in fact in Vermont. State-sponsored health care professionals sometimes meet with small groups of doctors to discuss best practices and generic drugs generally. See University of Vermont, College of Medicine, Office of Primary Care, Vermont Academic Detailing Program (July 2010), http:// www.med.uvm.edu/ahec/downloads/VTAD_overview_2010. 07.08.pdf (all Internet materials as visited June 21, 2011, and available in Clerk of Court's case file). Nothing in Vermont's statute prohibits brand-name manufacturers from undertaking a similar effort.
The upshot is that the only commercial-speech-related harm that the record shows this statute to have brought about is the one I have previously described: the withholding of information collected through a regulatory program, thereby preventing companies from shaping a commercial message they believe maximally effective. The absence of precedent suggesting that this kind of harm is serious reinforces the conclusion that the harm here is modest at most.
The legitimate state interests that the statute serves are “substantial.” Central Hudson, 447 U. S., at 564. Vermont enacted its statute
“to advance the state’s interest in protecting the public health of Vermonters, protecting the privacy of pre-scribers and prescribing information, and to ensure costs are contained in the private health care sector, as well as for state purchasers of prescription drugs, through the promotion of less costly drugs and ensuring prescribers receive unbiased information.” § 4631(a).
These objectives are important. And the interests they embody all are “neutral” in respect to speech. Cf. ante, at 579.
The protection of public health falls within the traditional scope of a State’s police powers. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 719 (1985). The fact that the Court normally exempts the regulation of “misleading” and “deceptive” information even from the rigors of its “intermediate” commercial speech scrutiny testifies to the importance of securing “unbiased information,” see 44 Liquormart, 517 U. S., at 501 (opinion of Stevens, J.); Central Hudson, supra, at 563, as does the fact that the FDA sets forth as a federal regulatory goal the need to ensure a “fair balance” of information about marketed drugs, 21 CFR §§ 202.1(e)(1), (e)(5)(ii). As major payers in the health care system, health care spending is also of crucial state interest. And this Court has affirmed the importance of maintaining “privacy” as an important public policy goal— even in respect to information already disclosed to the public for particular purposes (but not others). See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 762-771 (1989); see also Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477, 520-522 (2006); cf. NASA v. Nelson, 562 U. S. 134, 144-146 (2011) (discussing privacy interests in nondisclosure).
! Vermont compiled a substantial legislative record to corroborate this line of reasoning. See Testimony of Sean Flynn (Apr. 11, 2007), App. in No. 09-1913-cv(L) etc. (CA2), p. A-1156 (hereinafter CA2 App.) (use of data mining helps drug companies “to cover up information that is not in the best light of their drug and to highlight information that makes them look good”); Volker & Outterson, New Legislative Trends Threaten the Way Health Information Companies Operate, Pharmaceutical Pricing & Reimbursement 2007, id., at A-4235 (one former detailer considered prescriber-identifying data the “‘greatest tool in planning our approach to manipulating doctors’” (quoting Whitney, Big (Brother) Pharma: How Drug Reps Know Which Doctors To Target, New Republic, Aug. 29, 2006, http://www.tnr.cona/ article/84056/health-care-eli-lilly-pfizer-ama); Testimony of Paul Harrington (May 3, 2007), CA2 App. A-1437 (describing data-mining practices as “secret and manipulative activities by the marketers”); Testimony of Julie Brill (May 3,2007), id., at A-1445 (restrictions on data mining “ensur[e] that the FDA’s requirement of doctors receiving fair and balanced in
These conclusions required the legislature to make judgments about whether and how to ameliorate these problems. And it is the job of regulatory agencies and legislatures to make just these kinds of judgments. Vermont's attempts to ensure a “fair balance” of information is no different from the FDA’s similar requirement, see 21 CFR §§ 202.1(e)(1), (e)(5)(h). No one has yet suggested that substantial portions of federal drug regulation are unconstitutional. Why then should we treat Vermont’s law differently?
The record also adequately supports the State’s privacy objective. Regulatory rules in Vermont make clear that the confidentiality of an individual doctor’s prescribing practices remains the norm. See, e. g., Pharmacy Rule 8.7(c) (“Prescription and other patient health care information shall be secure from access by the public, and the information shall be kept confidential”); Pharmacy Rule 20.1(i) (forbidding disclosure of patient or prescriber information to “unauthorized persons” without consent). Exceptions to this norm are comparatively few. See, e. g., ibid, (identifying “authorized persons”); Vt. Stat. Ann., Tit. 18, § 4631(e); App. 248, 255 (indicating that prescriber-identifying data is not widely disseminated). There is no indication that the State of Ver
Pharmaceutical manufacturers and the data miners who sell information to those manufacturers would like to create (and did create) an additional exception, which means additional circulation of otherwise largely confidential information. Vermont’s statute closes that door. At the same time, the statute permits doctors who wish to permit use of their prescribing practices to do so. §§ 4631(c)-(d). For purposes of Central Hudson, this would seem sufficiently to show that the statute serves a meaningful interest in increasing the protection given to prescriber privacy. See Fox, 492 U. S., at 480 (in commercial speech area, First Amendment requires “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served” (internal quotation marks omitted)); see also United States v. Edge Broadcasting Co., 509 U. S. 418, 434 (1993) (The First Amendment does not “require that the Government make progress on every front before it can make progress on any front”); Burson, 504 U. S., at 207 (plurality opinion).
C
The majority cannot point to any adequately supported, similarly effective “more limited restriction.” Central Hudson, 447 U. S., at 564. It says that doctors “can, and often do, simply decline to meet with detailers.” Ante, at 575. This fact, while true, is beside the point. Closing the office door entirely has no similar tendency to lower costs (by focusing greater attention upon the comparative advantages and disadvantages of generic drug alternatives). And it would not protect the confidentiality of information already released to, say, data miners. In any event, physicians are unlikely to turn detailers away at the door, for those detail-ers, whether delivering a balanced or imbalanced message, are nonetheless providers of much useful information. See
The majority also suggests that if the “statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position.” Ante, at 580; see also ante, at 572-573. But the disclosure-permitting exceptions here are quite narrow, and they serve useful, indeed essential purposes. See supra, at 593-594. Compare Vt. Stat. Ann., Tit. 18, § 4631(e), with note following 42 U. S. C. §1320d-2, p. 1190, and 45 CFR § 164.512 (uses and disclosures not requiring consent under the Health Insurance Portability and Accountability Act of 1996). Regardless, this alternative is not “a more limited restriction,” Central Hudson, supra, at 564 (emphasis added), for it would impose a greater, not a lesser, burden upon the dissemination of information.
Respondents' alternatives are no more helpful. Respondents suggest that “Vermont can simply inform physicians that pharmaceutical companies . . . use prescription history information to communicate with doctors.” Brief for Respondent Pharmaceutical Research and Manufacturers of America 48. But how would that help serve the State’s basic purposes? It would not create the “fair balance” of information in pharmaceutical marketing that the State, like the FDA, seeks. Cf. Reno v. American Civil Liberties Union, 521 U. S. 844, 874 (1997) (alternative must be “at least as effective in achieving the legitimate purpose that the statute was enacted to serve”). Respondents also suggest policies requiring use of generic drugs or educating doctors
Vermont has thus developed a record that sufficiently shows that its statute meaningfully furthers substantial state interests. Neither the majority nor respondents suggests any equally effective “more limited” restriction. And the First Amendment harm that Vermont’s statute works is, at most, modest. I consequently conclude that, even if we apply an “intermediate" test such as that in Central H'udson, this statute is constitutional.
<1
What about the statute’s third restriction, providing that “[pharmaceutical manufacturers and pharmaceutical marketers” may not “use prescriber-identifiable information for marketing or promoting a prescription drug unless the pre-scriber consents”? Yt. Stat. Ann., Tit. 18, § 4631(d) (emphasis added). In principle, I should not reach this question. That is because respondent pharmaceutical manufacturers, marketers, and data miners seek a declaratory judgment and injunction prohibiting the enforcement of this statute. See 28 U. S. C. § 2201; App. 49-128. And they have neither shown nor claimed that they could obtain significant amounts of “prescriber-identifiable information” if the first two prohibitions are valid. If, as I believe, the first two statutory prohibitions (related to selling and disclosing the information) are valid, then the dispute about the validity of the third provision is not “ Teal and substantial’ ” or “ 'definite and concrete.’” MedImmune, Inc. v. Genentech, Inc., 549
The Court, however, strikes down all three provisions, and so I add that I disagree with the majority as to the constitutionality of the third restriction as well — basically for the reasons I have already set out. The prohibition against pharmaceutical firms using this prescriber-identifying information works no more than modest First Amendment harm; the prohibition is justified by the need to ensure unbiased sales presentations, prevent unnecessarily high drug costs, and protect the privacy of prescribing physicians. There is no obvious equally effective, more limited alternative.
V
In sum, I believe that the statute before us satisfies the “intermediate” standards this Court has applied to restrictions on commercial speech. A fortiori it satisfies less demanding standards that are more appropriately applied in this kind of commercial regulatory case — a case where the government seeks typical regulatory ends (lower drug prices, more balanced sales messages) through the use of ordinary regulatory means (limiting the commercial use of data gathered pursuant to a regulatory mandate). The speech-related consequences here are indirect, incidental, and entirely commercial. See supra, at 585-588.
The Court reaches its conclusion through the use of important First Amendment categories — “content-based,” “speaker-based,” and “neutral” — but without taking full account of the regulatory context, the nature of the speech effects, the values these First Amendment categories seek to promote, and prior precedent. See supra, at 581-585, 589-592, 597. At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. See, e. g., supra, at 587-588, 589-590. At worst, it
Regardless, whether we apply an ordinary commercial speech standard or a less demanding standard, I believe Vermont’s law is consistent with the First Amendment. And with respect, I dissent.
