Healthy Skepticism Library item: 15338
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Publication type: news
IMS, SDI Seek U.S. Supreme Court Review in Critical First Amendment Case
Pharma Live 2009 Mar 27
http://pharmalive.com/news/index.cfm?articleID=614990
Full text:
IMS Health and SDI today filed a joint petition for a writ of certiorari with the U.S. Supreme Court in the case of IMS Health vs. Ayotte, the U.S. Court of Appeals First Circuit ruling that upheld a New Hampshire law restricting the commercial use of prescriber-identifiable data.
The decision reversed a U.S. District Court decision that had previously ruled that such restrictions were in violation of the First Amendment’s protection of commercial speech. The appellate court, instead, found that the First Amendment afforded no such protection to the gathering, analysis or publication of data for commercial purposes, and that restriction of such data was not an abridgment of free speech. A writ of certiorari asks the Supreme Court to review the lower court’s opinion.
“The Court of Appeals violated basic constitutional principles when it allowed the government to adopt barriers to truthful discussions about important medical questions,” said Robert H. Steinfeld, IMS senior vice president and general counsel. “This decision jeopardizes both speech and commerce, including market research, data collection and dissemination, financial analysis, consumer studies, credit verification, and important publishing activities. Recognizing that the Court of Appeals’ decision is in conflict with rulings of other courts, we are hopeful that the Justices will bring much needed clarity to these important issues.”
The petition that IMS and SDI are now filing explains that the Court of Appeals’ decision represents a threat to the most basic constitutional right of free speech. The legal principles established by the Court of Appeals create a serious barrier to transfers of information – the core of the nation’s emerging knowledge-based economy.
“Our constitutional principles recognize that commerce and speech are inextricably linked. The sale of data in this case should have been entitled to the full measure of constitutional protection that shelters the distribution of truthful information,” said Rodney Smolla, Dean of the Washington and Lee University Law School and a First Amendment scholar. “These companies service the free flow of information by gathering and synthesizing data and then selling that data to those who find it valuable. Vast arenas of our economy and culture are built around such sales. We should not choke off these useful enterprises.”
The petition was submitted to the U.S. Supreme Court today and is available at www.imshealth.com/scpetition. Amicus briefs will be filed 30 days later. The Court is expected to decide whether to take the case before its summer recess in July.
More information on this case is available at: www.imsfreespeech.org.
In addition to New Hampshire, two other states, Maine and Vermont, have passed similar laws that restrict the use of prescriber-identifiable data. The U.S. District Court in Maine has enjoined the enforcement of the Maine data restriction law holding that it was unconstitutional. In Vermont, a lawsuit challenging that state’s data restriction law was heard in U.S. District Court in Brattleboro, Vermont from July 28 – August 1, 2008. A decision is pending.
