Recent First Amendment Cases Concerning Government Regulation Of Commercial Speech

Friday, December 16, 2011 - 11:03
Bert W. Rein

Bert W. Rein

Editor: Please describe the status of First Amendment rights as compared with other rights guaranteed by the U.S. Constitution. Do First Amendment rights have a status superior to other constitutional rights?

Rein: The First Amendment deals with very fundamental matters such as freedom of the press, freedom of individual expression and speech, and the freedom to practice religion. In that sense, the First Amendment is of paramount importance. I would not say, however, that First Amendment rights are superior to other rights protected by the Bill of Rights or the Constitution generally. There is nothing in the Constitution or in Supreme Court decisions that singles out First Amendment rights for special status, and earlier pronouncements along those lines were more rhetorical than substantive.  As a general matter, any constitutional restriction on the powers of the federal government - or, by virtue of the Fourteenth Amendment incorporation doctrine, on the powers of state and local governments - takes priority over laws and regulations that violate the restriction.  Furthermore, while it is true that the Court has recognized that the government requires a particularly compelling interest to interfere with certain First Amendment rights, depending on the circumstances, other constitutional rights are also strongly protected.

Editor: What is the current disposition of the Supreme Court as it regards First Amendment rights and free speech rights in particular?

Rein: The current Supreme Court majority has arguably taken a broader view of First Amendment rights than its predecessors, particularly where the First Amendment’s application to the free flow of information is concerned.  For example, the Court’s decision in Citizens United rejected the argument that corporations were not entitled to First Amendment protections and, more recently, the Court’s decision in Sorrell v. IMS Health Inc. expressed considerable skepticism that commercial speech is relegated to second class status as compared to private or political speech.  These decisions open the door wider for corporations and other commercial associations to advocate particular points of view unfettered by government regulation.

Editor: Please discuss the factual basis and the Supreme Court’s reasoning in the case of Sorrell v. IMS Health Inc. What is the significance of that decision?

Rein:  Sorrell involved a First Amendment challenge to a Vermont law that prohibited representatives of pharmaceutical manufacturers, known as “detailers,” from making use of records that disclosed the prescribing practices of individual doctors in their marketing practices.  The Vermont law prohibited the sale or use of the prescriber-specific prescription data for marketing purposes, but permitted the same information to be collected and used for a wide variety of other purposes, including insurance expenditure reviews, health care research, care management and law enforcement.             

In a majority decision written by Justice Kennedy, the Court struck down the Vermont law on First Amendment grounds and focused its analysis on the principal objective of the statute, which was designed to suppress the ability of name-brand drug manufacturers to effectively promote name-brand drugs to prescribing physicians.  Echoing a view held by health insurers and other constituencies, the Vermont legislature believed that it was appropriate to impede the marketing of name brand drugs because, even though the prescribing information was neither false nor misleading, the detailers were making effective use of it to target doctors who were prescribing generics and persuading them to use branded alternatives that were more expensive.  The Supreme Court rejected Vermont’s attempt to put a thumb on the scale and regulate speech to tip the competitive playing field.  Without expressly defining the level of constitutional scrutiny applicable to the regulation of commercial speech that is neither false nor misleading, the Sorrell majority drew parallels between commercial speech and political speech, and held that heightened judicial scrutiny was warranted because the Vermont law discriminated against specific speakers and content.

It remains to be seen how influential Sorrell will become, but the decision is significant because it represents a departure from the “almost anything goes,” intermediate scrutiny approach that the Court adopted in Central Hudson, which affords government actors substantial latitude to regulate commercial speech.  Picking up on a theme that has occasionally appeared in the Court’s commercial speech jurisprudence since Virginia State Board of Pharmacy was decided in 1976, the Court went out of its way to note that non-misleading commercial speech has value commensurate with political speech and other forms of speech that are traditionally viewed as enjoying the strongest form of First Amendment protection.  Moreover, the Court was strongly skeptical of the notion that the state legislature had any authority to prohibit or handicap truthful and non-misleading commercial speech to promote the state’s public policy agenda.

Editor: While Justice Kennedy wrote the majority opinion in this case, what were the views expressed in the dissent?

Rein:  Justice Breyer’s dissent in Sorrell picks up on the Court’s refusal to defer to the Vermont legislature’s policy judgment, and suggests that, if the majority opinion means what it says, many forms of commercial speech regulation that traditionally have been taken for granted might now be constitutionally suspect.  The dissent points out that economic regulation often has incidental effects on commercial speech and questions the wisdom of permitting unelected judges to second-guess legislators by weighing in on the bona fides of their objectives. 

Whether the dissent is correct in that assessment is an open question, because it could be argued that cases like Sorrell are clear cut and do not present close calls:  the Vermont legislature’s approach to detailers was pretextual and highly suspect, because the legislature prohibited detailers from using information that could be exploited by almost anyone else.

Editor: Has the Supreme Court abandoned the distinction once made between individual speech and commercial speech?

Rein: The Court’s decision in Sorrell - and the decision in Citizens United before it - represents incremental steps in the direction of recognizing greater First Amendment protection for speech that has a commercial purpose, but we are a long way from a unitary theory of protected speech that levels the playing field.  For example, there is no indication that the Court has abandoned the Central Hudson intermediate scrutiny standard, nor is there any indication that the Court is going to start second-guessing traditional health and safety rules that apply to product and pharmaceutical labeling, even though that is an area where the government aggressively engages in content regulation.  Closer to the margins, though, these cases suggest that the Court is going to look skeptically at government attempts to compel or censor speech in the commercial arena, particularly when the government action is taken to further a public advocacy agenda. 

Editor: Does Sorrell tell us anything about the conflict between the right to freedom of information and the right to privacy?

Rein:  In Sorrell, Vermont attempted to defend the statute on the ground that the statute was designed to protect physician privacy, but the Court rejected that argument as pretextual because, putting aside that patient identities were not disclosed in the prescriber information, the information that the statute barred detailers from using for marketing purposes was widely available to almost anyone who asked for it. 

More generally, the right to privacy is a personal right that has been protected to varying degrees under state common and statutory law and, in limited applications, under the Due Process Clause.  Typically, First Amendment claims involving the right to privacy arise where the press publishes embarrassing details about a person or portrays the person in a false light.  The cases in this area are not a model of clarity, but in an attempt to draw the boundary line between the right of the press to publish and the right of an individual to maintain privacy, courts have focused on such factors as whether the subject matter is newsworthy or the individual in question is a public figure.  The press has greater leeway to make mistakes where the subject matter of the disclosure is a legitimate topic of public interest. 

Editor: In the recent decision in R.J. Reynolds Tobacco Co. v. FDA, Judge Richard Leon of the U.S. District Court for the District of Columbia relied on the First Amendment to reject the FDA’s effort to require cigarette manufacturers to display graphic scenes of provocative images on cigarette packages. What is the significance of that case? 

Rein: The Reynolds case involves the FDA’s June 22, 2011 Final Rule, “Required Warnings for Cigarette Packages and Advertisements,” which requires cigarette manufacturers to devote the top 50 percent of the front and back panels of every cigarette package manufactured in the United States to nine specified textual warnings about the hazards of smoking and a rotating menu of graphic images.  The disclosures required by the Act are graphic and provocative because they starkly illustrate the adverse health consequences of smoking in a variety of visually arresting ways.  Five tobacco companies brought suit to enjoin the Rule under the First Amendment and the Administrative Procedure Act, and the district court ruled in their favor. 

Editor: What reasoning did the district court rely upon to reject the FDA’s new cigarette packing rule? 

Rein: Judge Leon applied strict scrutiny to the new mandatory packaging requirements, reasoning that the graphic warnings required by the FDA were not purely factual or uncontroversial in nature like the warnings that the FDA has historically required manufactures to place on cigarette packaging, but designed to advocate a government-preferred position by appealing to emotion and provoking consumers into quitting or avoiding cigarettes entirely.  The court held that, because the packaging requirements crossed the line into advocacy, they were not narrowly tailored to further a compelling government interest.  The court questioned whether government has any constitutionally cognizable interest in restricting or compelling speech in order to influence economic choices between lawful products.  In addition, the court was plainly unhappy that the FDA refused to state a coherent position on where traditional public health and safety regulation ends and government advocacy begins. 

More generally, the case stands for the proposition that the government cannot force commercial speakers to broadcast government-preferred messages for free.  In this regard, the decision is interesting because it suggests that, if the government wants to take a stand on an issue, it can do that directly, but the government cannot force private parties to act as its surrogate.  That position enhances political accountability, because it prevents the public from drawing mistaken conclusions about where the message is coming from.

Editor: The FDA is appealing Judge Leon’s decision.  What is the FDA likely to argue on appeal? 

Rein:  Presumably, the FDA will argue that, because cigarettes pose a substantial threat to public health and the FDA has required warnings on cigarette packages for years, the packaging requirements are fully consistent with the First Amendment under the Central Hudson intermediate scrutiny standard.

Editor: How would you summarize the Supreme Court’s stance on commercial speech at this point in time? 

Rein: In the First Amendment cases that we have been discussing, the Court is on solid ground in its guardianship of constitutional liberties. The government has numerous means at its disposal to regulate the consumer marketplace directly and to police fraud and deception. Where commercial speech is neither false nor misleading, however, handicapping or hijacking private advertising and marketing initiatives to propel government-preferred outcomes violates the First Amendment’s free speech guarantee, which protects the free flow of information and at the same time the freedom of business to compete and the freedom of consumers to decide. The framers of the Constitution properly recognized that commerce is vitally important to the life of the Nation, and decisions like Sorrell recognize that there is no inherent reason why commercial speech should be relegated to second-place status in the marketplace of ideas. 


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