02 July 2011

Conclusion of a Discussion of a Supreme Court Term

Kennedy's opinion makes the following points:
  • He rejects the notion that mere dry "data" is not speech, that it is merely a commodity. "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."
  • Vermont apparently had said at argument that even if data in general is speech, there should be an exception in the case of prescriptions, where the raw data should be regarded as non-speech for policy reasons. Kennedy doesn't actually reject that argument but he renders it irrelevant, because
  • The speech of the detailers in their contacts with doctors is indisputably speech, and Vermont's restrictions on data are designed to burden that speech, imposing a speaker and content-based burden on protected expression "and that circumstance is sufficient to justify application of heightened scrutiny." So even if the prescriber-identifying information itself is a "mere commodity," this law fails on first amendment grounds.
  • One of Vermont's offered justifications for the law is that it protects doctors from "harassing sales behaviors." Kennedy isn't buying into that one. A physician has the same right to refuse to communicate with a detailer that a homeowner has to refuse to discuss faith with a Jehovah's Witness. This law is not necessary to make that so.

Justice Breyer writes in dissent for himself, Justice Ginsburg, and Justice Kagan. He claims that the statute "meets the First Amendment standard this Court has applied when the government seeks to regulate commercial speech," i.e. the government's interest in restricting the speech is substantial (the protection of public health), the regulation in question directly serves that interest (in the explicit judgment of the legislature), and the regulation is narrowly tailored to that end, in that it "permits doctors who wish to permit use of their prescribing practices to do so.")

I'm not a big fan of "intermediate tiers," and thus not a fan at all of the Central Hudson language on which Breyer is drawing here.

The dissent doesn't make any case that the detailers were misusing their speech by, say, lying to the doctors about what their companies' drug can do.  Further, if the detailers are lying, a response should be tailored to that.  How would it be a "narrowly" tailored when the idea is to make it more difficult for the detailers to get accurate information useful in such a pitch? 

What the government fears here, and what the dissenters join them in fearing, is not falsehood-spouting detailerts, but persuasive ones.  And I join Justice Kennedy in seeing that as pernicious.

Meanwhile, I've looked at it from a portfolio-management point of view here.

(I'm not crazy about the headline, which sounds unnecessarily censorious -- but you learn when you do these things that you aren't in charge of the headline.)

No comments:

Knowledge is warranted belief -- it is the body of belief that we build up because, while living in this world, we've developed good reasons for believing it. What we know, then, is what works -- and it is, necessarily, what has worked for us, each of us individually, as a first approximation. For my other blog, on the struggles for control in the corporate suites, see www.proxypartisans.blogspot.com.