Supreme Court to hear two cases on scope of First Amendment

The Supreme Court has consented to hear two cases on the reach of the First Amendment, one on whether a vote cast by a public official is protected and another on whether information on physicians’ prescriptions is protected. -db

First Amendment Center
January 11, 2011
By Tony Mauro

WASHINGTON — As well-developed as First Amendment law is, a threshold question still sometimes arises in cases that make their way to the Supreme Court: What does the First Amendment protect?

The high court granted review Jan. 7 in two cases — one involving the votes of public officials, and the other the sale of prescription information — that pose that basic question of whether the First Amendment is even involved.

In both cases, government agencies say the activities they are restricting don’t even amount to speech that warrants First Amendment protection. In both cases, lower courts ruled that the First Amendment was implicated.

The Commission on Ethics of the State of Nevada v. Carrigan is the case that asks whether a vote cast by an elected officials is protected speech. If the Supreme Court rules that it is, the commission argues, then ethics rules restricting that speech by requiring elected officials, including judges, to recuse themselves from voting in certain instances would be in peril.

Michael Carrigan was a member of the Sparks, Nev., City Council when he voted to approve a casino-development plan submitted by a friend and former campaign manager. He disclosed his relationship with the developer, but the ethics commission censured him for not recusing.

On appeal, the Nevada Supreme Court ruled that a vote by an elected official is protected speech, requiring that the ethics law be reviewed under “strict scrutiny,” the high level of scrutiny that often results in speech restrictions’ being struck down. Under that standard, the court found the state ethics law was overbroad and unconstitutional, because it did give clear guidance as to what relationships require recusal.

The state ethics commission appealed to the U.S. Supreme Court, citing past high court rulings that a public official’s vote is an act of governance, not speech, and therefore not protected by the First Amendment. Even if a vote is viewed as a form of speech, the state argues, the ethics law should be reviewed under a less-demanding standard that applies to restrictions on speech by public employees. A brief filed by Florida, Alabama, Colorado, Idaho, Louisiana, Mississippi, Ohio and Texas supports Nevada’s position.

Carrigan, represented by lawyers for Sparks, argues that in fact, voting by an elected official is “the pinnacle of political speech,” deserving the highest level of protection from government regulation: “A vote cast by an elected representative on a legislative measure exists at the confluence of all other types of political speech.”

In Sorrell v. IMS Health, the other First Amendment case granted Jan. 7, the expression at issue is prescription-drug data — specifically, “prescriber-identifiable data” that can be used to identify which doctors are prescribing which drugs, and how much.

Pharmacies are required to gather the data under federal and state regulations, and in recent years have begun selling the information to “data miners,” who in turn sell it to drug companies that use it to guide their marketing efforts toward physicians. Is it speech, or is it merely commercial information that does not have First Amendment value?

In the name of privacy, Vermont and other states passed legislation to restrict access to the information by requiring doctors to give permission before their data can be sold for marketing purposes. IMS, a data-mining company, challenged the law as a First Amendment violation, claiming that it restricts publication of the information and stifles pharmaceutical companies’ speech rights to communicate with prescribers about better drugs.

The 2nd U.S. Circuit Court of Appeals agreed with the First Amendment argument and struck down Vermont’s law. The neighboring 1st Circuit had upheld similar laws in Maine and New Hampshire that had been challenged by the same company, setting up a clear conflict between the circuits.

Vermont appealed to the high court, arguing that the law did not restrict speech at all, but merely limits access to commercial information. IMS agreed that the issue warranted high court review, but reiterated its opposition to the law. If Vermont’s justification for the law stands, IMS argued, then “the state is free to prohibit the Wall Street Journal from publishing stock prices.”

Both cases are likely to be argued in April.

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