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.)

Supreme Court term, continued

Sorrell v. IMS Health is the most fascinating decision of the term just past.

The underlying law and facts take us to Vermont, which in 2007 enacted a law adverse to a practice that has become known as prescription data mining.  The data miners (like IMS Health) collect data from pharmacies about which prescriptions they have been filling from which doctors.  They aggregate this to develop a data base that says, for example, that Dr. John Smith writes a lot of prescriptions for generic arthritis pain killers.  They then sell this information to pharma companies.

The big pharma companies are happy to buy this information because they feed it to their sales force, called "detailers" in the trade.  The job of the detailers is to persuade doctors, usually in one-on-one conversations Willy Loman style , that the brand name drug can do things for their patient the generic can't.

Of course, if the detailers are right, then shutting them down, or making their work difficult, threatens the quality of medicine in Vermont. 

The legislation expressed the legislature's belief that the detailers are wrong, that the brand names are simply more expensive.  By cracking down on data mining they hoped to create a state-wide shift to generics and lower the cost of health care. 

When the matter came before the Supreme Court it involved two consolidated lawsuits: one brought by the data miners and the other brought by an association of pharmaceutical manufacturers.  The Second Circuit Court of Appeals ruled in their favor, striking down Vermont's law.  The state appealed to the Supreme Court.

The case drew a lot of attention, and several news organizations -- concerned that this would encourage states to restrict their own data gathering abilities -- filed a friend of the court brief.  The news organizations, (Bloomberg, the McGraw-Hill Companies, Hearst Corp., ProPublica, and The Associated Press) were represented before the court by Henry R. Kaufman.  We might add at this point that Hearst is the parent corporation of First DataBank Inc., itself a leading publisher of drug information.

The Supreme Court upheld the Second Circuit in striking the law.  Justice Kennedy wrote the opinion for the six Justices in the majority, including C.J. Roberts, Scalia, Thomas, Alito, and Sotomayor.

Breyer wrote a dissent, joined by Ginsberg and Kagan.

It is tempting to see that line-up in left-right terms.  But Sotomayor seems on the 'wrong' side if we give in to that temptation.  Further, free speech is one of the few areas in which this court's decisions even in politically polarized areas are not  "conservative" in a stereotypical, cantral-casting sense.  Consider the ruling that allowed picketers at military funerals, or the more recent greenlight to the marketing of violent video games to minors on first amendment grounds.

Or stick to this case about data mining.  One of the claims that the lawyers for the state made at the various stages of this litigation is that "speech" isn't involved.  Data mining isn't speech, it is conduct.  The amici news organizations were troubled by that claim.  In their brief they noted for example that the Sarasota Herald Tribune has recently undertaken "an ambitious, data-intensive, one-year project that involved gathering and reviewingnearly 19 million Florida real estate transactions.  The resulting expose of the high costs of fraud in such transactions was a 2010 Pulitzer Prize finalist for investigative reporting."

    
This is running long.  I'll complete my thoughts on the subject of Sorrell in tomorrow's entry in this blog.

Beginning a Discussion of the Supreme Court Term

Another term of the U.S. Supreme Court has come and gone.  Again, the court has issued a lot of decisions that are, in their own several ways, fascinating.  There is one that leaps out at me this year as THE decision of the term, in relation to my own usual net of obsessions, and I'll discuss that tomorrow.  Today, I'll do a round-up of others of this term's cases, in no particular order. 

I'll say nothing more about cases I've discussed in earlier blog entries, such as STANFORD v. ROCHE, the patent-law case I discussed on June 17.

1) Flores-Villar v. U.S.:  This is a sex discrimination case (the sort that Justice Ruth Bader Ginsburg made her reputation litigating in the 1970s) in an immigration context.  It came out as a 4-4 decision, because Justice Kagan recused herself.   For these particular litigants, that means that the decision of the 9th Circuit Court of Appeals remains the law.

The case turned on a quirk in US law regarding citizenship.  A child born out of the US, to a mother who is a US citizen, is a U.S. citizen, regardless of such matters as her marital status or the father's citizenship etc.  What then of a child born out of the U.S.,  to a mother who is not a US citizen, but with a father (acknowledged paternity) who is a U.S. citizen, in circumstances in which the parents are not married?

Under the law, this child is not a citizen of the US unless his citizen father had resided in the U.S. for at least 5 years after his 14th birthday. Thus, by obvious arithmetic, no one can become a US citizen in this way whose father is not at least 19 at the time of the child's birth.

Why are there different rules for citizen fathers than for citizen mothers?  Does that violate the equal protection clause of the 14th amendment?  This was the contested question -- contested under a body of law known as the "intermediate tier" doctrine, regarding sex discrimination.  Such a distinction is seen as suspect, but as somewhat less suspect than racial discrimination.  The appellate court upheld the law, and SCOTUS didn't muster the votes to change that. 

2) Bond v. United States.  This was the federalism case of the term, arising out of a bizaare mis-application of an anti-terrorism statute.   Sex-in-the-suburbs.  In this case the suburbs of Philadelphia.  Carol Anne Bond of Landsdale, PA was ticked off that her husband had impregnated a neighbor, and struck back by placing caustic substances on various surfaces she knew the Jezebel in question was likely to touch, including Jezebel's car door and mailbox.

Bond was convicted of a federal crime, violating the Chemical Weapons Convention Implementation Act of 1998.  You can almost hear her introducing herself to the other inmates.  "I'm Bond.  Carol Bond."

The decision, by Justice Kennedy, used some sweeping pro-10th-amendment language, explicitly giving the right to "vindicate" 10th amendment interests to individuals.  "Her rights in this regard do not belong to a state."

It is possible that the Court expects that next term it will overturn Obamacare or crucial parts of it on federalism grounds, and it saw this case as a helpful set-up to that decision.

3) Skinner v., Switzer.  A petition for a Texas inmate on death row.  Always dramatic.  In this case, it was Justice Ginsburg who wrote a 6 to 3 opinion that said that convicted inmates seeking access to DNA evidence in an effort to prove their innocence may use a federal civil-rights lawsuit in order to do so.

4)  Boeing v. United States.  The court somewhat limited the range of the "state secrets" doctrine in the course of contract disputes.  Further, hearteningly (for those of us who are not lovers of "state secrets" in general) it did so unanimously, in an opinion by Justice Scalia.

It is a rare case involving a defense-industry contracts dispute that draws such a range of amicus briefs, including a brief from the Al-Haramain Islamic Foundation Inc., "in support of neither party," in which the Foundation's lawyers maintained that the court should inquire into the foundations of the state secrets doctrine itself, and should characterize it as a "common-law evidentiary rule of nonconstitutional provenance."   

I don't see any place in the opinion where Scalia takes them up on that.  He sticks to his knitting, in an opinion that declines to enforce a contract against private parties in a situation in which the invocation of the state-secret doctrine has precluded a prima facie valid defense to the governments claims.

5)  Brown v. Entertainment Merchants Assn.  Sale of video games to minors comes under the protection of the first amendment.

The cool thing about this case is that earlier in the proceedings it was known as Schwarzenegger v. Entertainment Merchants.  Given subsequent revelations, the puns there write themselves.
The really big case of the term ... tomorrow.