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.
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.
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