New England Legal Foundation
  • Home
  • About
    • Mission & History
    • Annual Reports
    • Board of Directors
    • State Advisory Councils >
      • Connecticut
      • Maine
      • Massachusetts
      • New Hampshire
      • Rhode Island
      • Vermont
    • Trustees
    • Members
    • Staff
    • Job & Internship Opportunities
  • News & Events
  • Docket
  • Briefs
  • Donate
  • Contact

IMS Health v. Ayotte

10/7/2009

 
Supporting Businesses’ First Amendment Rights to Buy and Sell Information for Commercial Purposes

NELF filed a brief in the United States Supreme Court, on behalf of itself and four other amici, in support of a petition for a writ of certiorari filed by IMS Health in this action challenging the constitutionality of the New Hampshire statute that bans the transfer or use of prescriber-identifiable information for purposes of pharmaceutical detailing.  (For a more detailed description of the issue, please see IMS Health v. Sorrell.)  

NELF’s brief argued that the First Circuit’s decision upholding the statute was in conflict with decisions of the Supreme Court providing that the transfer of information constitutes speech entitled to First Amendment protection.  NELF further argued that the First Circuit’s decision was in conflict with Supreme Court decisions applying the commercial speech doctrine, which do so only in the context of direct or indirect advertising, but that certain language in the Court’s case law has engendered confusion regarding the proper definition of commercial speech, as shown by conflicting decisions among the circuits and even within the First Circuit. NELF argued that therefore the Court should issue a writ of certiorari to resolve this doctrinal confusion in favor of a narrow definition of commercial speech as speech that “proposes a commercial transaction.” NELF explained that the Court would thereby prevent the substantial harm to social and economic interests that could result under the First Circuit’s approach, under which every sale of information for a commercial purpose deemed by the judiciary to have minimal societal value may on that basis be denied First Amendment protection or afforded the lower level of protection from government regulation that attaches to commercial speech.  

The other organizations that joined NELF’s brief were the Associated Industries of Massachusetts, the Associated Industries of Vermont, the Maine Merchants Association, and the American Legislative Exchange Council, a nonprofit that counts among its members more than 25% of all state legislators as well as over 300 corporations and private foundations.   

Despite the arguments of NELF and others for certiorari, the Supreme Court denied IMS Health’s petition.


Comments are closed.

    The Docket

    To obtain a copy of any of NELF's briefs, contact us at info@nelfonline.org.

    Categories

    All
    1st Circuit Court Of Appeals
    2nd Circuit Court Of Appeals
    3rd Circuit Court Of Appeals
    Business Litigation Session
    CT
    CT Superior Court
    CT Supreme Court
    Employer Employee Relationships
    February 2018
    February 2019
    Government Regulation/Administration Of Justice
    MA
    MA Appeals Court
    MA Division Of Administrative Law Appeals
    March 2015
    MA Superior Court
    MA Supreme Judicial Court
    MA US District Court
    ME
    ME Supreme Judicial Court
    NH
    NH Supreme Court
    Property Rights
    RI
    RI Supreme Court
    SCOTUS
    United States Supreme Court
    US Court Of Appeals Federal Circuit
    US District Court ME
    VT
    VT Supreme Court

    RSS Feed

    Archives

    August 2020
    June 2020
    January 2020
    June 2019
    April 2019
    October 2018
    June 2018
    February 2018
    October 2017
    October 2016
    June 2016
    February 2016
    October 2015
    June 2015
    March 2015
    October 2014
    June 2014
    February 2014
    October 2013
    June 2013
    February 2013
    October 2012
    June 2012
    February 2012
    October 2011
    June 2011
    February 2011
    October 2010
    June 2010
    February 2010
    October 2009
    February 2009
    October 2008
    June 2008
    February 2008
    October 2007
    June 2007
    October 2006
    June 2006
    February 2006
    October 2005
    June 2005
    February 2005
    October 2004
    June 2004
    February 2004
    October 2003
    May 2003
    February 2003
    September 2002
    May 2002
    February 2002
    May 2001