Sorrell v. IMS Health Inc. ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SORRELL, ATTORNEY GENERAL OF VERMONT,
ET AL. v. IMS HEALTH INC. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 10–779. Argued April 26, 2011—Decided June 23, 2011
Pharmaceutical manufacturers promote their drugs to doctors through
a process called “detailing.” Pharmacies receive “prescriber
identifying information” when processing prescriptions and sell the
information to “data miners,” who produce reports on prescriber be
havior and lease their reports to pharmaceutical manufacturers.
“Detailers” employed by pharmaceutical manufacturers then use the
reports to refine their marketing tactics and increase sales to doctors.
Vermont’s Prescription Confidentiality Law provides that, absent the
prescriber’s consent, prescriber-identifying information may not be
sold by pharmacies and similar entities, disclosed by those entities
for marketing purposes, or used for marketing by pharmaceutical
manufacturers. Vt. Stat. Ann., Tit. 18, §4631(d). The prohibitions
are subject to exceptions that permit the prescriber-identifying in
formation to be disseminated and used for a number of purposes, e.g.,
“health care research.” §4631(e).
Respondents, Vermont data miners and an association of brand
name drug manufacturers, sought declaratory and injunctive relief
against state officials (hereinafter Vermont), contending that
§4631(d) violates their rights under the Free Speech Clause of the
First Amendment. The District Court denied relief, but the Second
Circuit reversed, holding that §4631(d) unconstitutionally burdens
the speech of pharmaceutical marketers and data miners without
adequate justification.
Held:
1. Vermont’s statute, which imposes content- and speaker-based
burdens on protected expression, is subject to heightened judicial
scrutiny. Pp. 6–15.
2 SORRELL v. IMS HEALTH INC.
Syllabus
(a) On its face, the law enacts a content- and speaker-based re
striction on the sale, disclosure, and use of prescriber-identifying in
formation. The law first forbids sale subject to exceptions based in
large part on the content of a purchaser’s speech. It then bars phar
macies from disclosing the information when recipient speakers will
use that information for marketing. Finally, it prohibits pharmaceu
tical manufacturers from using the information for marketing. The
statute thus disfavors marketing, i.e., speech with a particular con
tent, as well as particular speakers, i.e., detailers engaged in market
ing on behalf of pharmaceutical manufacturers. Cincinnati v. Dis
covery Network, Inc., 507 U. S. 410, 426; Turner Broadcasting
System, Inc. v. FCC, 512 U. S. 622, 658. Yet the law allows pre
scriber-identifying information to be purchased, acquired, and used
for other types of speech and by other speakers. The record and for
mal legislative findings of purpose confirm that §4631(d) imposes an
aimed, content-based burden on detailers, in particular detailers who
promote brand-name drugs. In practical operation, Vermont’s law
“goes even beyond mere content discrimination, to actual viewpoint
discrimination.” R. A. V. v. St. Paul, 505 U. S. 377, 391. Heightened
judicial scrutiny is warranted. Pp. 8–11.
(b) Vermont errs in arguing that heightened scrutiny is unwar
ranted. The State contends that its law is a mere commercial regula
tion. Far from having only an incidental effect on speech, however,
§4631(d) imposes a burden based on the content of speech and the
identity of the speaker. The State next argues that, because pre
scriber-identifying information was generated in compliance with a
legal mandate, §4631(d) is akin to a restriction on access to govern
ment-held information. That argument finds some support in Los
Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S.
32, but that case is distinguishable. Vermont has imposed a restric
tion on access to information in private hands. United Reporting re
served that situation—i.e., “a case in which the government is prohib
iting a speaker from conveying information that the speaker already
possesses.” Id., at 40. In addition, the United Reporting plaintiff was
presumed to have suffered no personal First Amendment injury,
while respondents claim that §4631(d) burdens their own speech.
That circumstance warrants heightened scrutiny. Vermont also ar
gues that heightened judicial scrutiny is unwarranted because sales,
transfer, and use of prescriber-identifying information are conduct,
not speech. However, the creation and dissemination of information
are speech for First Amendment purposes. See, e.g., Bartnicki v.
Vopper, 532 U. S. 514, 527. There is no need to consider Vermont’s
request for an exception to that rule. Section 4631(d) imposes a
speaker- and content-based burden on protected expression, and that
Cite as: 564 U. S. ____ (2011) 3
Syllabus
circumstance is sufficient to justify applying heightened scrutiny,
even assuming that prescriber-identifying information is a mere
commodity. Pp. 11–15.
2. Vermont’s justifications for §4631(d) do not withstand height
ened scrutiny. Pp. 15–24.
(a) The outcome here is the same whether a special commercial
speech inquiry or a stricter form of judicial scrutiny is applied, see,
e.g., Greater New Orleans Broadcasting Assn., Inc. v. United States,
527 U. S. 173, 184. To sustain §4631(d)’s targeted, content-based
burden on protected expression, Vermont must show at least that the
statute directly advances a substantial governmental interest and
that the measure is drawn to achieve that interest. See Board of
Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480–481. Ver
mont contends that its law (1) is necessary to protect medical privacy,
including physician confidentiality, avoidance of harassment, and the
integrity of the doctor-patient relationship, and (2) is integral to the
achievement of the policy objectives of improving public health and
reducing healthcare costs. Pp. 15–17.
(b) Assuming that physicians have an interest in keeping their
prescription decisions confidential, §4631(d) is not drawn to serve
that interest. Pharmacies may share prescriber-identifying informa
tion with anyone for any reason except for marketing. Vermont
might have addressed physician confidentiality through “a more co
herent policy,” Greater New Orleans Broadcasting, supra, at 195,
such as allowing the information’s sale or disclosure in only a few
narrow and well-justified circumstances. But it did not. Given the in
formation’s widespread availability and many permissible uses, Ver
mont’s asserted interest in physician confidentiality cannot justify
the burdens that §4631(d) imposes on protected expression. It is true
that doctors can forgo the law’s advantages by consenting to the sale,
disclosure, and use of their prescriber-identifying information. But
the State has offered only a contrived choice: Either consent, which
will allow the doctor’s prescriber-identifying information to be dis
seminated and used without constraint; or, withhold consent, which
will allow the information to be used by those speakers whose mes
sage the State supports. Cf. Rowan v. Post Office Dept., 397 U. S.
728. Respondents suggest a further defect lies in §4631(d)’s pre
sumption of applicability absent an individual election to the con
trary. Reliance on a prior election, however, would not save a privacy
measure that imposed an unjustified burden on protected expression.
Vermont also asserts that its broad content-based rule is necessary to
avoid harassment, but doctors can simply decline to meet with detail
ers. Cf. Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of
Stratton, 536 U. S. 150, 168. Vermont further argues that detailers’
4 SORRELL v. IMS HEALTH INC.
Syllabus
use of prescriber-identifying information undermines the doctor
patient relationship by allowing detailers to influence treatment de
cisions. But if pharmaceutical marketing affects treatment decisions,
it can do so only because it is persuasive. Fear that speech might
persuade provides no lawful basis for quieting it. Pp. 17–21.
(c) While Vermont’s goals of lowering the costs of medical ser
vices and promoting public health may be proper, §4631(d) does not
advance them in a permissible way. Vermont seeks to achieve those
objectives through the indirect means of restraining certain speech by
certain speakers—i.e., by diminishing detailers’ ability to influence
prescription decisions. But “the fear that people would make bad de
cisions if given truthful information” cannot justify content-based
burdens on speech. Thompson v. Western States Medical Center, 535
U. S. 357, 374. That precept applies with full force when the audi
ence—here, prescribing physicians—consists of “sophisticated and
experienced” consumers. Edenfield v. Fane, 507 U. S. 761, 775. The
instant law’s defect is made clear by the fact that many listeners find
detailing instructive. Vermont may be displeased that detailers with
prescriber-indentifying information are effective in promoting brand
name drugs, but the State may not burden protected expression in
order to tilt public debate in a preferred direction. Vermont nowhere
contends that its law will prevent false or misleading speech within
the meaning of this Court’s First Amendment precedents. The
State’s interest in burdening detailers’ speech thus turns on nothing
more than a difference of opinion. Pp. 21–24.
630 F. 3d 263, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, ALITO, and SOTOMAYOR, JJ., joined. BREYER,
J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ.,
joined.
Cite as: 564 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–779
_________________
WILLIAM H. SORRELL, ATTORNEY GENERAL OF
VERMONT, ET AL., PETITIONERS v.
IMS HEALTH INC. ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2011]
JUSTICE KENNEDY 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 pur
poses, or used for marketing by pharmaceutical manufac
turers. Vermont argues that its prohibitions safeguard
medical privacy and diminish the likelihood that market
ing will lead to prescription decisions not in the best inter
ests 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
2 SORRELL v. IMS HEALTH INC.
Opinion of the Court
doctors through a process called “detailing.” This often in-
volves a scheduled visit to a doctor’s office to persuade
the doctor to prescribe a particular pharmaceutical. De
tailers bring drug samples as well as medical studies
that explain the “details” and potential advantages of var
ious prescription drugs. Interested physicians listen, ask
questions, and receive followup data. Salespersons can be
more effective when they know the background and pur
chasing preferences of their clientele, and pharmaceutical
salespersons are no exception. Knowledge of a physi-
cian’s prescription practices—called “prescriber-identifying
information”—enables a detailer better to ascertain which
doctors are likely to be interested in a particular drug and
how best to present a particular sales message. Detailing
is an expensive undertaking, so pharmaceutical companies
most often use it to promote high-profit brand-name drugs
protected by patent. Once a brand-name drug’s patent
expires, less expensive bioequivalent generic alternatives
are manufactured and sold.
Pharmacies, as a matter of business routine and federal
law, receive prescriber-identifying information when proc
essing 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 mar
keting tactics and increase sales.
In 2007, Vermont enacted the Prescription Confidential
ity 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 elec
Cite as: 564 U. S. ____ (2011) 3
Opinion of the Court
tronic transmission intermediary, a pharmacy, or other
similar entity shall not sell, license, or exchange
for value regulated 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 . . . . Pharmaceu
tical 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 insur
ers, 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 enti-
ties 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 provi
sion’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 prescrip
tion drug.” §4631(b)(5). Section 4631(c)(1) further pro
vides that Vermont’s Department of Health must allow “a
prescriber to give consent for his or her identifying infor
mation to be used for the purposes” identified in §4631(d).
4 SORRELL v. IMS HEALTH INC.
Opinion of the Court
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, or preferred drug lists; for “care
management educational communications provided to” pa
tients on such matters as “treatment options”; for law
enforcement operations; and for purposes “otherwise pro
vided by law.” §4631(e).
Act 80 also authorized funds for an “evidence-based pre
scription 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 ex
pire. §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 manufac
turers whose efforts they hope to resist, counterdetailers
in some States use prescriber-identifying information to
increase their effectiveness. States themselves may sup
ply 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 explain
ing that the office collects prescriber-identifying informa
tion but “does not at this point in time have a counter
detailing or detailing effort”). As first enacted, Act 80 also
required detailers to provide information about alternative
Cite as: 564 U. S. ____ (2011) 5
Opinion of the Court
treatment options. The Vermont Legislature, however,
later repealed that provision. 2008 Vt. Laws No. 89, §3.
Act 80 was accompanied by legislative findings. Vt. Acts
No. 80, §1. Vermont found, for example, that the “goals of
marketing programs are often in conflict with the goals
of the state” and that the “marketplace for ideas on medi
cine safety and effectiveness is frequently one-sided in that
brand-name companies invest in expensive pharmaceuti
cal marketing campaigns to doctors.” §§1(3), (4). Detail
ing, in the legislature’s view, caused doctors to make
decisions based on “incomplete and biased information.”
§1(4). Because they “are unable to take the time to re
search the quickly changing pharmaceutical market,”
Vermont doctors “rely on information provided by phar
maceutical representatives.” §1(13). The legislature
further found that detailing increases the cost of health
care and health insurance, §1(15); encourages hasty and
excessive reliance on brand-name drugs, before the profes
sion has observed their effectiveness as compared with
older and less expensive generic alternatives, §1(7); and
fosters disruptive and repeated marketing visits tanta
mount to harassment, §§1(27)–(28). The legislative find
ings further noted that use of prescriber-identifying in
formation “increase[s] the effect of detailing programs”
by allowing detailers to target their visits to particular
doctors. §§1(23)–(26). Use of prescriber-identifying data
also helps detailers shape their messages by “tailoring” their
“presentations to individual prescriber styles, preferences,
and attitudes.” §1(25).
B
The present case 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 re
spondents here. Contending that §4631(d) violates their
6 SORRELL v. IMS HEALTH INC.
Opinion of the Court
First Amendment rights as incorporated by the Four
teenth Amendment, the respondents sought declaratory
and injunctive relief against the 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(2009). The District Court found that “[p]harmaceutical
manufacturers are essentially the only paying customers
of the data vendor industry” and that, because detailing
unpatented generic drugs is not “cost-effective,” pharma
ceutical sales representatives “detail only branded drugs.”
Id., at 451, 442. As the District Court further con-
cluded, “the Legislature’s determination that [prescriber
identifying] data is an effective marketing tool that en
ables detailers to increase sales of new drugs is supported
in the record.” Id., at 451. The United States Court of
Appeals for the Second Circuit reversed and remanded. It
held that §4631(d) violates the First Amendment by bur
dening the speech of pharmaceutical marketers and data
miners without an adequate justification. 630 F. 3d 263.
Judge Livingston dissented.
The decision of the Second Circuit is in conflict with de
cisions 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 Hamp-
shire). Recognizing a division of authority regarding the
constitutionality of state statutes, this Court granted
certiorari. 562 U. S. __ (2011).
II
The beginning point is the text of §4631(d). In the pro-
ceedings 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,
Cite as: 564 U. S. ____ (2011) 7
Opinion of the Court
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 infor
mation for any purpose, subject to the statutory exceptions
set out at §4631(e). See Tr. of Oral Arg. 19–20. It might
be argued that the State’s newfound interpretation comes
too late in the day. See Sprietsma v. Mercury Marine, 537
U. S. 51, 56, n. 4 (2002) (waiver); New Hampshire v.
Maine, 532 U. S. 742, 749 (2001) (judicial estoppel). The
respondents, the District Court, and the Court of Appeals
were entitled to rely on the State’s plausible interpretation
of the law it is charged with enforcing. For the State to
change its position is particularly troubling in a First
Amendment case, where plaintiffs have a special interest
in obtaining a prompt adjudication of their rights, despite
potential ambiguities of state law. See Houston v. Hill,
482 U. S. 451, 467–468, and n. 17 (1987); Zwickler v.
Koota, 389 U. S. 241, 252 (1967).
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 exam
ple, 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 manu
facturers and detailers from using the information for
8 SORRELL v. IMS HEALTH INC.
Opinion of the Court
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
prescriber-identifying information. The provision first for
bids sale subject to exceptions based in large part on the
content of a purchaser’s speech. For example, those who
wish to engage in certain “educational communications,”
§4631(e)(4), may purchase the information. The measure
then bars any disclosure when recipient speakers will use
the information for marketing. Finally, the provision’s
second sentence prohibits pharmaceutical manufacturers
from using the information for marketing. The statute
thus disfavors marketing, that is, speech with a particular
content. More than that, the statute disfavors specific
speakers, namely pharmaceutical manufacturers. As a
result of these content- and speaker-based rules, detailers
cannot obtain prescriber-identifying information, even
though the information may be purchased or acquired by
other speakers with diverse purposes and viewpoints.
Detailers are likewise barred from using the information
for marketing, even though the information may be used
by a wide range of other speakers. For example, it ap
pears that Vermont could supply academic organizations
with prescriber-identifying information to use in counter
ing the messages of brand-name pharmaceutical manufac
turers and in promoting the prescription of generic drugs.
But §4631(d) leaves detailers no means of purchasing,
acquiring, or using prescriber-identifying information.
The law on its face burdens disfavored speech by disfa
vored speakers.
Any doubt that §4631(d) imposes an aimed, content
Cite as: 564 U. S. ____ (2011) 9
Opinion of the Court
based burden on detailers is dispelled by the record and by
formal legislative findings. As the District Court noted,
“[p]harmaceutical 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 detailers—and only detailers—from communi
cating with physicians in an effective and informative
manner. Cf. Edenfield v. Fane, 507 U. S. 761, 766 (1993)
(explaining the “considerable value” of in-person solicita
tion). Formal legislative findings accompanying §4631(d)
confirm that the law’s express purpose and practical effect
are to diminish the effectiveness of marketing by manu
facturers of brand-name drugs. Just as the “inevitable
effect of a statute on its face may render it unconstitu
tional,” a statute’s stated purposes may also be considered.
United States v. O’Brien, 391 U. S. 367, 384 (1968). Here,
the Vermont Legislature explained that detailers, in
particular those who promote brand-name drugs, convey
messages that “are often in conflict with the goals of the
state.” 2007 Vt. No. 80, §1(3). The legislature designed
§4631(d) to target those speakers and their messages for
disfavored treatment. “In its practical operation,” Ver
mont’s law “goes even beyond mere content discrimina
tion, to actual viewpoint discrimination.” R. A. V. v. St.
Paul, 505 U. S. 377, 391 (1992). Given the legislature’s
expressed statement of purpose, it is apparent that
§4631(d) imposes burdens that are based on the content
of speech and that are aimed at a particular viewpoint.
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 height
ened scrutiny to “a categorical prohibition on the use of
newsracks to disseminate commercial messages”); id., at
10 SORRELL v. IMS HEALTH INC.
Opinion of the Court
429 (“[T]he 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 matter of degree” and
that the “Government’s content-based burdens must sat
isfy the same rigorous scrutiny as its content-based bans.”
United States v. Playboy Entertainment Group, Inc., 529
U. S. 803, 812 (2000). Lawmakers may no more silence
unwanted speech by burdening its utterance than by cen
soring its content. See Simon & Schuster, Inc. v. Mem-
bers of N. Y. State Crime Victims Bd., 502 U. S. 105,
115 (1991) (content-based financial burden); Minneapolis
Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460
U. S. 575 (1983) (speaker-based financial burden).
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 regula
tions” are “those that are justified without reference to the
content of the regulated speech” (internal quotation marks
omitted)). A government bent on frustrating an impend
ing 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 excep
Cite as: 564 U. S. ____ (2011) 11
Opinion of the Court
tion. See Discovery Network, supra, at 429–430 (commer
cial 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 regula
tion. It is true that restrictions on protected expression
are distinct from restrictions on economic activity or, more
generally, on nonexpressive conduct. It is also true that
the First Amendment does not prevent restrictions di
rected at commerce or conduct from imposing inciden
tal burdens on speech. That is why a ban on race-based
hiring may require employers to remove “ ‘White Appli
cants Only’ ” signs, Rumsfeld v. Forum for Academic and
Institutional Rights, Inc., 547 U. S. 47, 62 (2006); why “an
ordinance against outdoor fires” might forbid “burning a
flag,” R. A. V., supra, at 385; and why antitrust laws can
prohibit “agreements in restraint of trade,” Giboney v.
Empire Storage & Ice Co., 336 U. S. 490, 502 (1949).
But §4631(d) imposes more than an incidental burden
on protected expression. Both on its face and in its practi
cal operation, Vermont’s law imposes a burden based on
the content of speech and the identity of the speaker. See
supra, at 8–11. While the burdened speech results from
an economic motive, so too does a great deal of vital ex
pression. 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
12 SORRELL v. IMS HEALTH INC.
Opinion of the Court
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 particu
lar speakers. The Constitution “does not enact Mr. Her
bert 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 legal mandate, the State argues, and so could be consid
ered a kind of governmental information. This argument
finds some support in Los Angeles Police Dept. v. United
Reporting Publishing Corp., 528 U. S. 32 (1999), where the
Court held that a plaintiff could not raise a facial chal
lenge to a content-based restriction on access to government-
held information. Because no private party faced a
threat of legal punishment, the Court characterized the
law at issue as “nothing more than a governmental denial
of access to information in its possession.” Id., at 40.
Under those circumstances the special reasons for permit
ting First Amendment plaintiffs to invoke the rights of
others did not apply. Id., at 38–39. Having found that the
plaintiff could not raise a facial challenge, the Court re
manded for consideration of an as-applied challenge. Id.,
at 41. United Reporting is thus a case about the availabil
ity of facial challenges. The Court did not rule on the
merits of any First Amendment claim.
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 ad
dressed, in United Reporting. Here, unlike in United
Cite as: 564 U. S. ____ (2011) 13
Opinion of the Court
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 “re
straints 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 the respondents here, unlike the newspaper in
Seattle Times, do not themselves possess information
whose disclosure has been curtailed. That information,
however, is in the hands of pharmacies and other private
entities. There is no question that the “threat of prosecu
tion . . . hangs over their heads.” United Reporting, 528
U. S., at 41. For that reason United Reporting does not
bar respondents’ facial challenge.
United Reporting is distinguishable for a second and
even more important reason. The plaintiff in United
Reporting had neither “attempt[ed] 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 invok
ing the rights of others through a facial challenge. Here,
by contrast, the respondents claim—with good reason—
that §4631(d) burdens their own speech. That argument
finds support in the separate writings in United Report
ing, 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
14 SORRELL v. IMS HEALTH INC.
Opinion of the Court
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 a content- and speaker
based burden on respondents’ own speech. That consid
eration provides a separate basis for distinguishing United
Reporting and requires heightened judicial scrutiny.
The State also contends that heightened judicial scru
tiny 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 charac
terized prescriber-identifying information as a mere “com
modity” with no greater entitlement to First Amend-
ment protection than “beef jerky.” Ayotte, 550 F. 3d, at52–53. In contrast the courts below concluded that a
prohibition on the sale of prescriber-identifying informa
tion 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 altera
tion omitted)); 631 F. Supp. 2d, at 445 (“A restriction on
Cite as: 564 U. S. ____ (2011) 15
Opinion of the Court
disclosure is a regulation of speech, and the ‘sale’ of [in
formation] 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 omit
ted)); 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 knowl
edge and to conduct human affairs. There is thus a
strong argument that prescriber-identifying information is
speech for First Amendment purposes.
The State asks for an exception to the rule that informa
tion is speech, but there is no need to consider that re
quest in this case. The State has imposed content- and
speaker-based restrictions on the availability and use of
prescriber-identifying information. So long as they do not
engage in marketing, many speakers can obtain and use
the information. But detailers cannot. Vermont’s statute
could be compared with a law prohibiting trade magazines
from purchasing or using ink. Cf. Minneapolis Star, 460
U. S. 575. Like that hypothetical law, §4631(d) imposes a
speaker- and content-based burden on protected expres
sion, and that circumstance is sufficient to justify applica
tion of heightened scrutiny. As a consequence, this case
can be resolved even assuming, as the State argues, that
prescriber-identifying information is a mere commodity.
B
In the ordinary case it is all but dispositive to conclude
16 SORRELL v. IMS HEALTH INC.
Opinion of the Court
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, e.g., Greater New Orleans Broad
casting 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”).
Under a commercial speech inquiry, it is the State’s
burden to justify its content-based law as consistent with
the First Amendment. Thompson v. Western States Medi
cal Center, 535 U. S. 357, 373 (2002). To sustain the
targeted, content-based burden §4631(d) imposes on pro
tected expression, the State must show at least that the
statute directly advances a substantial governmental in
terest and that the measure is drawn to achieve that
interest. See Fox, supra, at 480–481; Central Hudson Gas
& Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S.
557, 566 (1980). There must be a “fit between the legisla
ture’s ends and the means chosen to accomplish those
ends.” Fox, supra, at 480 (internal quotation marks omit
ted). As in other contexts, these standards ensure not only
that the State’s interests are proportional to the result-
ing burdens placed on speech but also that the law does
not seek to suppress a disfavored message. See Turner
Broadcasting, 512 U. S., at 662–663.
The State’s asserted justifications for §4631(d) come
Cite as: 564 U. S. ____ (2011) 17
Opinion of the Court
under two general headings. First, the State contends
that its law is necessary to protect medical privacy, includ
ing physician confidentiality, avoidance of harassment,
and the integrity of the doctor-patient relationship. Sec
ond, 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 prescriber-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, physi
cians have an interest in keeping their prescription deci
sions confidential. But §4631(d) is not drawn to serve that
interest. Under Vermont’s law, pharmacies may share
prescriber-identifying information with anyone for any rea
son save one: They must not allow the information to
be used for marketing. Exceptions further allow pharma
cies to sell prescriber-identifying information for certain
purposes, including “health care research.” §4631(e). And
the measure permits insurers, researchers, journalists,
the State itself, and others to use the information. See
§4631(d); cf. App. 370–372; id., at 211. All but conceding
that §4631(d) does not in itself advance confidentiality
interests, the State suggests that other laws might impose
separate bars on the disclosure of prescriber-identifying
information. See Vt. Bd. of Pharmacy Admin. Rule 20.1.
But the potential effectiveness of other measures cannot
justify the distinctive set of prohibitions and sanctions
imposed by §4631(d).
Perhaps the State could have addressed physician confi
dentiality through “a more coherent policy.” Greater New
Orleans Broadcasting, supra, at 195; see also Discovery
18 SORRELL v. IMS HEALTH INC.
Opinion of the Court
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 In
surance 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 case
than 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 permissi
ble uses, the State’s asserted interest in physician confi
dentiality 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, disclo
sure, and use of their prescriber-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 Dept., 397 U. S. 728 (1970); cf. Bolger v. Youngs
Drug Products Corp., 463 U. S. 60, 72 (1983). But that
principle is inapposite here. Vermont has given its doctors
a contrived choice: Either consent, which will allow your
prescriber-identifying information to be disseminated and
used without constraint; or, withhold consent, which will
allow your information to be used by those speakers whose
message the State supports. Section 4631(d) may offer a
limited degree of privacy, but only on terms favorable to
the speech the State prefers. Cf. Rowan, supra, at 734,
737, 739, n. 6 (sustaining a law that allowed private par
ties to make “unfettered,” “unlimited,” and “unreviewable”
choices regarding their own privacy). This is not to say
Cite as: 564 U. S. ____ (2011) 19
Opinion of the Court
that all privacy measures must avoid content-based rules.
Here, however, the State has conditioned privacy on ac
ceptance of a content-based rule that is not drawn to serve
the State’s asserted interest. To obtain the limited privacy
allowed by §4631(d), Vermont physicians are forced to
acquiesce in the State’s goal of burdening disfavored
speech by disfavored speakers.
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 disfavored speech. Vermont’s argument accord
ingly fails, even if the availability and scope of private
election might be relevant in other contexts, as when the
statute’s design is unrelated to any purpose to advance a
preferred message.
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 pharmaceuti
cal sales representatives,” the Vermont Legislature found,
“and a few have reported that they felt coerced and har
assed.” §1(20). It is doubtful that concern for “a few”
physicians who may have “felt coerced and harassed” by
20 SORRELL v. IMS HEALTH INC.
Opinion of the Court
pharmaceutical marketers can sustain a broad content
based rule like §4631(d). Many are those who must en
dure 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 inade
quate. 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, includ
ing 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 physi
cian’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
decisions. According to the State, “unwanted pressure
occurs” when doctors learn that their prescription deci
sions are being “monitored” by detailers. 2007 Vt. Laws
No. 80, §1(27). Some physicians accuse detailers of “spy
ing” or of engaging in “underhanded” conduct in order to
“subvert” prescription decisions. App. 336, 380, 407–408;
see also id., at 326–328. And Vermont claims that detail
ing makes people “anxious” about whether doctors have
their patients’ best interests at heart. Id., at 327. But the
State does not explain why detailers’ use of prescriber
identifying information is more likely to prompt these
Cite as: 564 U. S. ____ (2011) 21
Opinion of the Court
objections than many other uses permitted by §4631(d).
In any event, this asserted interest is contrary to basic
First Amendment principles. Speech remains protected
even when it may “stir people to action,” “move them to
tears,” or “inflict great pain.” Snyder v. Phelps, 562 U. S.
___, ___ (2011) (slip op., at 15). The more benign and,
many would say, beneficial speech of pharmaceutical
marketing is also entitled to the protection of the First
Amendment. If pharmaceutical marketing affects treat
ment decisions, it does so because doctors find it persua
sive. Absent circumstances far from those presented here,
the fear that speech might persuade provides no lawful
basis for quieting it. Brandenburg v. Ohio, 395 U. S. 444,
447 (1969) (per curiam).
2
The State contends that §4631(d) advances impor-
tant 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 acknowl
edge that §4631(d)’s objective purpose and practical effect
were to inhibit detailing and alter doctors’ prescription
decisions. See Tr. of Oral Arg. 5–6. The State’s reluctance
to embrace its own legislature’s rationale reflects the
vulnerability of its position.
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
22 SORRELL v. IMS HEALTH INC.
Opinion of the Court
certain speech by certain speakers—that is, by diminish
ing 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 truth
ful 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 pre
cepts 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 prem-
ise 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 market
ing has a strong influence on doctors’ prescribing prac
tices.” 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
marketplace by prohibiting truthful, nonmisleading adver
tisements that contain impressive endorsements or catchy
jingles. That the State finds expression too persuasive
does not permit it to quiet the speech or to burden its
messengers.
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
Cite as: 564 U. S. ____ (2011) 23
Opinion of the Court
targeted detailing based on prescriber-identifying infor
mation 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 di
vergent 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 promot
ing brand-name drugs. The State can express that view
through its own speech. See Linmark, 431 U. S., 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
preferred direction. “The commercial marketplace, like
other spheres of our social and cultural life, provides a
forum where ideas and information flourish. Some of the
ideas and information are vital, some of slight worth. But
the general rule is that the speaker and the audience, not
24 SORRELL v. IMS HEALTH INC.
Opinion of the Court
the government, assess the value of the information pre
sented.” Edenfield, supra, at 767.
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 “commer
cial harms” explains “why commercial speech can be sub
ject to greater governmental regulation than noncommer
cial speech.” Discovery Network, 507 U. S., at 426; see also
44 Liquormart, 517 U. S., 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 oth
ers, 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, 535 U. S., at 373.
Nor does the State argue that the provision challenged
here will prevent false or misleading speech. Cf. post, at
10–11 (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 govern
ment, presents serious and unresolved issues with respect
to personal privacy and the dignity it seeks to secure. In
considering how to protect those interests, however, the
State cannot engage in content-based discrimination to
advance its own side of a debate.
If Vermont’s statute provided that prescriber-identifying
Cite as: 564 U. S. ____ (2011) 25
Opinion of the Court
information could not be sold or disclosed except in narrow
circumstances then the State might have a stronger posi
tion. Here, however, the State gives possessors of the
information broad discretion and wide latitude in disclos
ing the information, while at the same time restricting
the information’s use by some speakers and for some pur
poses, 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 mar
keting 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 unbur
dened 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.
Cite as: 564 U. S. ____ (2011) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–779
_________________
WILLIAM H. SORRELL, ATTORNEY GENERAL OF
VERMONT, ET AL., PETITIONERS v.
IMS HEALTH INC. ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2011]
JUSTICE BREYER, with whom JUSTICE GINSBURG and
JUSTICE KAGAN join, dissenting.
The Vermont statute before us adversely affects expres
sion in one, and only one, way. It deprives pharmaceutical
and data-mining companies of data, collected pursuant to
the government’s regulatory mandate, that could help
pharmaceutical companies create better sales messages.
In my view, this effect on expression is inextricably related
to a lawful governmental effort to regulate a commercial
enterprise. The First Amendment does not require courts
to apply a special “heightened” standard of review when
reviewing such an effort. And, in any event, the statute
meets the First Amendment standard this Court has
previously applied when the government seeks to regulate
commercial speech. For any or all of these reasons, the
Court should uphold the statute as constitutional.
I
The Vermont statute before us says pharmacies and
certain other entities
“shall not [1] sell . . . regulated records containing
prescriber-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).
2 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
It also says that
“[3] [p]harmaceutical manufacturers and pharmaceu
tical marketers shall not use prescriber-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.
II
In Glickman v. Wileman Brothers & Elliott, Inc., 521
U. S. 457 (1997), this Court considered the First Amend
ment’s application to federal agricultural commodity
mar-keting regulations that required growers of fruit to
make compulsory contributions to pay for collective adver
tising. The Court reviewed the lawfulness of the regula
tion’s negative impact on the growers’ freedom voluntarily
to choose their own commercial messages “under the
standard appropriate for the review of economic regula
tion.” Id., at 469.
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 regu
latory 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 major
ity would apply to this instance of commercial regulation
are out of place here. Ante, at 1, 8, 9, 10, 11, 13, 14, 15.
A
Because many, perhaps most, activities of human beings
living together in communities take place through speech,
and because speech-related risks and offsetting justifica
tions differ depending upon context, this Court has distin
guished for First Amendment purposes among different
Cite as: 564 U. S. ____ (2011) 3
BREYER, J., dissenting
contexts in which speech takes place. See, e.g., Snyder v.
Phelps, 562 U. S. ___, ___–___ (2011) (slip op., at 5–6).
Thus, the First Amendment imposes tight constraints
upon government efforts to restrict, e.g., “core” political
speech, while imposing looser constraints when the gov
ernment 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 pro
gram. 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 Town
ship High School Dist. 205, Will Cty., 391 U. S. 563 (1968)
(government employees), and Glickman, supra (economic
regulation).
These test-related distinctions reflect the constitutional
importance of maintaining a free marketplace of ideas,
a marketplace that provides access to “social, political,
esthetic, moral, and other ideas and experiences.” Red
Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969);
see Abrams v. United States, 250 U. S. 616, 630 (1919)
(Holmes, J., dissenting). Without such a marketplace, the
public could not freely choose a government pledged to
implement policies that reflect the people’s informed will.
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 com
mercial 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
4 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
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, decep
tive, or aggressive” lack the protection of even this “inter
mediate” 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 Council, Inc., 425 U. S. 748,
772 (1976). And the Court has emphasized the need, in
applying an “intermediate” test, to maintain the
“ ‘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, supra, at 475–476.
“Our function” in such cases, Justice Brandeis said, “is
only to determine the reasonableness of the legislature’s
belief in the existence of evils and in the effectiveness of
Cite as: 564 U. S. ____ (2011) 5
BREYER, J., dissenting
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 legisla
tive measure was a rational way to correct it”); United States
v. Carolene Products Co., 304 U. S. 144, 152 (1938)
(“[R]egulatory 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 mes
sage) would work at cross-purposes with this more basic
constitutional approach. Since ordinary regulatory pro
grams can affect speech, particularly commercial speech,
in myriad ways, to apply a “heightened” First Amendment
standard of review whenever such a program burdens
speech would transfer from legislatures to judges the
primary power to weigh ends and to choose means, threat
ening to distort or undermine legitimate legislative ob
jectives. See Glickman, 521 U. S., at 476 (“Doubts con
cerning the policy judgments that underlie” a program
requiring fruit growers to pay for advertising they dis
agree with does not “justify reliance on the First Amend
ment as a basis for reviewing economic regulations”). Cf.
Johanns v. Livestock Marketing Assn., 544 U. S. 550, 560–
562 (2005) (applying less scrutiny when the compelled
speech is made by the Government); United States v.
United Foods, Inc., 533 U. S. 405, 411 (2001) (applying
greater scrutiny where compelled speech was not “ancil
lary to a more comprehensive program restricting market
ing autonomy”). To apply a “heightened” standard of
review in such cases as a matter of course would risk what
6 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
then-Justice Rehnquist, dissenting in Central Hudson,
described as a
“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 imple
ment 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, Ver
mont’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 of a product. Cf. id., at 469–470.
(And I here assume that Central Hudson might otherwise
apply. See Part III, infra.)
For another thing, the same First Amendment stan
dards 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 Gov
ernment’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 tra
ditional, 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
Cite as: 564 U. S. ____ (2011) 7
BREYER, J., dissenting
are both “safe” and “effective.” 21 U. S. C. §§355(b)(1),
355(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 informa
tion 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 pharma
cists 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).
Regulators will often find it necessary to create tailored
restrictions on the use of information subject to their
regulatory jurisdiction. A car dealership that obtains
credit scores for customers who want car loans can be
prohibited from using credit data to search for new cus
tomers. See 15 U. S. C. §1681b (2006 ed. and Supp. III);
cf. Trans Union Corp. v. FTC, 245 F. 3d 809, reh’g denied,
267 F. 3d 1138 (CADC 2001). Medical specialists who
obtain medical records for their existing patients cannot
purchase those records in order to identify new patients.
See 45 CFR §164.508(a)(3) (2010). Or, speaking hypo
thetically, a public utilities commission that directs local
gas distributors to gather usage information for individual
customers might permit the distributors to share the data
with researchers (trying to lower energy costs) but forbid
8 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
sales of the data to appliance manufacturers seeking to
sell gas stoves.
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 Adminis
trative Procedure Act to make certain they are not “arbi
trary, 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 consti
tutional 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 hypothet
ical examples with potentially adverse speech-related
effects at least roughly comparable to those at issue here
indicates the danger of applying a “heightened” or “inter
mediate” standard of First Amendment review where
typical regulatory actions affect commercial speech (say,
by withholding information that a commercial speaker
might use to shape the content of a message).
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 gath
ered 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 11–14. 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 Re
porting Publishing Corp., 528 U. S. 32 (1999) (no height
ened scrutiny); compare Cincinnati v. Discovery Network,
Inc., 507 U. S. 410, 426 (1993) (“[C]ommercial speech can
be subject to greater governmental regulation than non
Cite as: 564 U. S. ____ (2011) 9
BREYER, J., dissenting
commercial speech” because of the government’s “interest
in preventing commercial harms”), with ante, at 9–10, 11,
17–18, 24 (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 “[c]ommercial speech is no exception.” Ante,
at 10–11. And the Court then emphasizes that this is a
case involving both “content-based” and “speaker-based”
restrictions. See ante, at 8, 9, 10, 12, 14, 15, 16, 19, 20, 22,
24.
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 F. 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.
Regulatory programs necessarily draw distinctions on
the basis of content. Virginia Bd. of Pharmacy, 425 U. S.,
at 761, 762 (“If there is a kind of commercial speech that
lacks all First Amendment protection, . . . it must be dis
tinguished by its content”). Electricity regulators, for
example, oversee company statements, pronouncements,
and proposals, but only about electricity. See, e.g., Vt.
Pub. Serv. Bd. Rules 3.100 (1983), 4.200 (1986), 5.200
(2004). The Federal Reserve Board regulates the content
of statements, advertising, loan proposals, and interest
rate disclosures, but only when made by financial institu
tions. See 12 CFR pts. 226, 230 (2011). And the FDA
10 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
oversees the form and content of labeling, advertising, and
sales proposals of drugs, but not of furniture. See 21 CFR
pts. 201–203. Given the ubiquity of content-based regula
tory categories, why should the “content-based” nature of
typical regulation require courts (other things being equal)
to grant legislators and regulators less deference? Cf.
Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S.
469, 481 (1989) (courts, in First Amendment area, should
“provide the Legislative and Executive Branches needed
leeway” when regulated industries are at issue).
Nor, in the context of a regulatory program, is it un
usual 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 manu
facturers of home appliances to publicize ways to reduce
energy consumption, while exempting producers of indus
trial equipment. See, e.g., 16 CFR pt. 305 (2011) (prescrib
ing labeling requirements for certain home appliances);
Nev. Admin. Code §§704.804, 704.808 (2010) (requiring
utilities to provide consumers with information on conser
vation). 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 ex
cess oil” unless it substantiates that claim with detailed
backup testing, even though opponents of cosmetics use
need not substantiate their claims. Morris, F. T. C. Or
ders Data to Back Ad Claims, N. Y. Times, Nov. 3, 1973,
p. 32; Boys’ Life, Oct. 1973, p. 64; see 36 Fed. Reg. 12058(1971). Or the FDA might control in detail just what a
pharmaceutical firm can, and cannot, tell potential pur
chasers about its products. Such a firm, for example,
could not suggest to a potential purchaser (say, a doctor)
that he or she might put a pharmaceutical drug to an “off
label” use, even if the manufacturer, in good faith and
with considerable evidence, believes the drug will help.
All the while, a third party (say, a researcher) is free to
Cite as: 564 U. S. ____ (2011) 11
BREYER, J., dissenting
tell the doctor not to use the drug for that purpose. See 21
CFR pt. 99; cf. Buckman Co. v. Plaintiffs’ Legal Comm.,
531 U. S. 341, 350–351 (2001) (discussing effect of similar
regulations in respect to medical devices); see also Pro
posed Rule, Revised Effectiveness Determination; Sun
screen Drug Products for Over-the-Counter Human Use,
76 Fed. Reg. 35672 (2011) (proposing to prohibit market
ing of sunscreens with sun protection factor (SPF) of
greater than 50 due to insufficient data “to indicate that
there is additional clinical benefit”).
If the Court means to create constitutional barriers to
regulatory rules that might affect the content of a com
mercial message, it has embarked upon an unprecedented
task—a task that threatens significant judicial interfer
ence 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 cer
tain 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 manu
facturers. Ante, at 8, 9, 12, 16. But, for the reasons just
set forth, to require “heightened” scrutiny on this basis is
to require its application early and often when the State
seeks to regulate industry. Any statutory initiative stems
from a legislative agenda. See, e.g., Message to Congress,
May 24, 1937, H. R. Doc. No. 255, 75th Cong., 1st Sess., 4
(request from President Franklin Roosevelt for legislation
to ease the plight of factory workers). Any administrative
initiative stems from a regulatory agenda. See, e.g., Exec.
Order No. 12866, 58 Fed. Reg. 51735 (1993) (specifying
how to identify regulatory priorities and requiring agen
cies to prepare agendas). The related statutes, regula
tions, programs, and initiatives almost always reflect a
12 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
point of view, for example, of the Congress and the ad
ministration that enacted them and ultimately the voters.
And they often aim at, and target, particular firms that
engage in practices about the merits of which the Gov
ernment and the firms may disagree. Section 2 of the
Sherman Act, 15 U. S. C. §2, for example, which limits the
truthful, nonmisleading speech of firms that, due to their
market power, can affect the competitive landscape, is
directly aimed at, and targeted at, monopolists.
In short, the case law in this area reflects the need to
ensure that the First Amendment protects the “market
place of ideas,” thereby facilitating the democratic creation
of sound government policies without improperly hamper
ing 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 in
volve 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 initia
tives 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 constitu
tionalization of economic theories preferred by individual
jurists. See Lochner v. New York, 198 U. S. 45, 75–76
(1905) (Holmes, J., dissenting). By inviting courts to
scrutinize whether a State’s legitimate regulatory inter
ests can be achieved in less restrictive ways whenever
they touch (even indirectly) upon commercial speech,
today’s majority risks repeating the mistakes of the past
in a manner not anticipated by our precedents. See Cen
tral Hudson, 447 U. S., at 589 (Rehnquist, J., dissenting);
cf. Railroad Comm’n of Tex. v. Rowan & Nichols Oil Co.,
Cite as: 564 U. S. ____ (2011) 13
BREYER, J., dissenting
310 U. S. 573, 580–581 (1940) (“A controversy like this
always calls for fresh reminder that courts must not sub
stitute their notions of expediency and fairness for those
which have guided the agencies to whom the formulation
and execution of policy have been entrusted”).
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 “arbi
trary, 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 un
forgiving 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 signifi
cantly weaken the legislature’s authority to regulate
commerce and industry, I would not apply a “heightened”
First Amendment standard of review in this case.
III
Turning to the constitutional merits, I believe Vermont’s
statute survives application of Central Hudson’s “interme
diate” commercial speech standard as well as any more
limited “economic regulation” test.
14 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
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 unjus
tified discrimination in that it permits “pharmacies” to
“share prescriber-identifying information with anyone for
any reason” (but marketing). Ante, at 17. Whatever the
First Amendment relevance of such discrimination, there
is no evidence that it exists in Vermont. The record con
tains 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 unauthor
ized persons patient or practitioner information or the
nature of professional pharmacy services rendered.” Rule
20.1(i) (emphasis added); see also Reply Brief for Petition
ers 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 data. See Vt. Stat. Ann., Tit.
18, §4631(e)(1) (pharmacy reimbursement, patient care
management, health care research); §4631(e)(2) (drug
dispensing); §4631(e)(3) (communications between pre
scriber and pharmacy); §4631(e)(4) (information to pa
Cite as: 564 U. S. ____ (2011) 15
BREYER, J., dissenting
tients); §§4631(e)(5)–(6) (as otherwise provided by state or
federal law). Cf. Trans Union Corp., 245 F. 3d, at 819
(rejecting an underinclusiveness challenge because an
exception to the Fair Credit Reporting Act concerned
“ ‘exactly the sort of thing the Act seeks to promote’ ” (quot
ing Trans Union Corp. v. FTC, 81 F. 3d 228, 234 (CADC
1996)).
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 speak
ers.” Ante, at 19. The Court apparently means that the
statute (1) prevents pharmaceutical companies from creat
ing individualized messages that would help them sell
their drugs more effectively, but (2) permits “counterde
tailing” 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 con
sequence would significantly increase the statute’s nega
tive impact upon commercial speech. But cf. 21 CFR
§§202.1(e)(1), 202.1(e)(5)(ii) (FDA’s “fair balance” require
ment); 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 4, that Act 80, of which
§4631 was a part, also created an “evidence-based pre
scription 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 prescrip
tion drugs” to health professionals responsible for pre
scribing and dispensing prescription drugs, Vt. Stat. Ann.,
Tit. 18, §4622(a)(1). See generally §§4621–4622. But that
program does not make use of prescriber-identifying data.
16 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
Reply Brief for Petitioners 11.
The majority cites testimony by two witnesses in sup
port of its statement that “States themselves may supply
the prescriber-identifying information used in [counterde
tailing] programs.” Ante, at 4. 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 Inter
net 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 with
holding 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.
Cite as: 564 U. S. ____ (2011) 17
BREYER, J., dissenting
B
The legitimate state interests that the statute serves are
“substantial.” Central Hudson, 447 U. S., at 564. Ver
mont enacted its statute
“to advance the state’s interest in protecting the pub
lic health of Vermonters, protecting the privacy of
prescribers and prescribing information, and to en
sure 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
24.
The protection of public health falls within the tradi
tional 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),
202.1(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 Pri
18 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
vacy, 154 U. Pa. L. Rev. 477, 520–522 (2006); cf. NASA v.
Nelson, 562 U. S. ___, ___–___ (2011) (slip op., at 8–9)
(discussing privacy interests in nondisclosure).
At the same time, the record evidence is sufficient to
permit a legislature to conclude that the statute “directly
advances” each of these objectives. The statute helps to
focus sales discussions on an individual drug’s safety,
effectiveness, and cost, perhaps compared to other drugs
(including generics). These drug-related facts have every
thing to do with general information that drug manufac
turers likely possess. They have little, if anything, to do
with the name or prior prescription practices of the par
ticular doctor to whom a detailer is speaking. Shaping a
detailing message based on an individual doctor’s prior
prescription habits may help sell more of a particular
manufacturer’s particular drugs. But it does so by divert
ing attention from scientific research about a drug’s safety
and effectiveness, as well as its cost. This diversion comes
at the expense of public health and the State’s fiscal
interests.
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 of light of their drug and to high
light 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 for
mer 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.com/article/84056/health
care-eli-lilly-pfizer-ama); Testimony of Paul Harrington
Cite as: 564 U. S. ____ (2011) 19
BREYER, J., dissenting
(May 3, 2007), id., at 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
information actually occurs”); Written Statement of Jerry
Avorn & Aaron Kesselheim, id., at A–4310 (citing studies
that “indicate that more physician-specific detailing will
lead to more prescriptions of brand-name agents, often
with no additional patient benefit but at much higher cost
to patients and to state-based insurance programs, which
will continue to drive up the cost of health care”); id., at
4311 (“Making it more difficult for manufacturers to tailor
their marketing strategies to the prescribing histories of
individual physicians would actually encourage detailers
to present physicians with a more neutral description of
the product”); see also Record in No. 1:07–cv–00188–jgm
(D Vt.), Doc. 414, pp. 53–57, 64 (hereinafter Doc. 414)
(summarizing record evidence).
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. Ver
mont’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), 202.1(e)(5)(ii). No one has yet sug
gested 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 infor
mation shall be secure from access by the public, and the
information shall be kept confidential”); Pharmacy Rule
20 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
20.1(i) (forbidding disclosure of patient or prescriber in
formation 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 Vermont, or others in the
State, makes use of this information for counterdetailing
efforts. See supra, at 15.
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 confi
dential 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 mean
ingful interest in increasing the protection given to pre
scriber 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 Broadcast
ing 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
20. This fact, while true, is beside the point. Closing the
Cite as: 564 U. S. ____ (2011) 21
BREYER, J., dissenting
office door entirely has no similar tendency to lower costs
(by focusing greater attention upon the comparative ad
vantages and disadvantages of generic drug alternatives).
And it would not protect the confidentiality of information
already released to, say, data miners. In any event, physi
cians are unlikely to turn detailers away at the door, for
those detailers, whether delivering a balanced or imbal
anced message, are nonetheless providers of much useful
information. See Manchanda & Honka, The Effects and
Role of Direct-to-Physician Marketing in the Pharmaceuti
cal Industry: An Integrative Review, 5 Yale J. Health Pol’y
L. & Ethics 785, 793–797, 815–816 (2005); Ziegler, Lew, &
Singer, The Accuracy of Drug Information from Pharma
ceutical Sales Representatives, 273 JAMA 1296 (1995).
Forcing doctors to choose between targeted detailing and
no detailing at all could therefore jeopardize the State’s
interest in promoting public health.
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 24–25; see also
ante, at 17. But the disclosure-permitting exceptions here
are quite narrow, and they serve useful, indeed essential
purposes. See supra, at 14. 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 alterna
tive 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. Respon
dents suggest that “Vermont can simply inform physicians
that pharmaceutical companies . . . use prescription his
tory information to communicate with doctors.” Brief for
22 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
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 educat
ing doctors about their benefits. Brief for Respondent
Pharmaceutical Research and Manufacturers of America
54–55. Such programs have been in effect for some time
in Vermont or other States, without indication that they
have prevented the imbalanced sales tactics at which
Vermont’s statute takes aim. See, e.g., Written Statement
of Jerry Avorn & Aaron Kesselheim, CA2 App. 4310; Doc.
414, at 60–61. And in any event, such laws do not help
protect prescriber privacy.
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 Hudson, this statute is constitutional.
IV
What about the statute’s third restriction, providing
that “[p]harmaceutical manufacturers and pharmaceutical
marketers” may not “use prescriber-identifiable informa
tion for marketing or promoting a prescription drug unless
the prescriber consents”? Vt. 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 de
Cite as: 564 U. S. ____ (2011) 23
BREYER, J., dissenting
claratory judgment and injunction prohibiting the en
forcement 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 “ ‘real and substantial’ ” or “ ‘definite and concrete.’ ”
MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 127
(2007) (quoting Aetna Life Ins. Co. v. Haworth, 300 U. S.
227, 240–241 (1937)) (Article III does not permit courts to
entertain such disputes).
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 unneces
sarily high drug costs, and protect the privacy of prescrib
ing 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 restric
tions 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,
24 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
and entirely commercial. See supra, at 6–9.
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 2–6, 9–13,
17. 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 7–8, 9–11. At worst, it re
awakens Lochner’s pre-New Deal threat of substituting
judicial for democratic decisionmaking where ordinary
economic regulation is at issue. See Central Hudson, 447
U. S., at 589 (Rehnquist, J., dissenting).
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.