Document Type

Article

Publication Date

2011

Abstract

This Court should refuse to apply the First Amendment to Vermont’s Prescription Confidentiality Law based on two essential facts. First, the regulation at issue is limited to the commercial use or private-channel distribution of confidential data. It is thus governed by cases of this Court upholding the regulation of uses of information in purely private settings that do not inform or contribute to the public sphere. Bartnicki v. Vopper, 532 U.S. 514, 526-27 n.10 (2001); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Second, it concerns the regulation of secondary uses of information where the government requires the initial disclosure. It is thus governed by cases in which this Court has affirmed a right of governments to restrict access to government held or mandated information. L.A. Police Dept. v. United Reporting Publ’g Corp., 528 U.S. 32 (1999); Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). This Court has never held that a regulation at the intersection of these two lines of cases – where private channel exchanges and uses of private (government-mandated) records are at issue – is First Amendment protected “speech.” Cf. Reno v. Condon, 528 U.S. 141 (2000). The First Circuit, in a case parallel to the one before the Court now, decided the issue correctly – the private-channel use and trade of prescription records is economic conduct, not “speech.” IMS Health, Inc. v. Ayotte, 550 F.3d 42 (1st Cir. 2008), cert. denied, 129 S. Ct. 2864 (2009).

If this law were evaluated as regulating First Amendment protected speech, such speech should be given protection commensurate with its “nugatory informational value.” Ayotte, 550 F.3d at 52. In contrast, this Court should recognize the overriding interests of Vermont and other states in regulating the confidentiality of prescription records. The Vermont law directly advances its interest in protecting against disclosure of records containing the most personal of information as well as its interest in protecting individual autonomy in decision making on important personal matters.

NASA v. Nelson, 562 U.S. (2011); Whalen v. Roe, 429 U.S. 589 (1977). Protecting the confidentiality of records advances important goals of our health system, including combating undue influence of in-person pharmaceutical marketing that raises costs and damages public health interests. See Ohralik v. Ohio Bar Ass’n, 436 U.S. 447 (1978).

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