U.S. Supreme Court Justice Sonia Sotomayor threw lawyers a curveball this past week by siding with conservatives on a corporate free speech case.
Marking the first time she’s broken with liberals in a case presenting a clear philosophical split, scholars will wonder what other surprises the “wise Latina” from the Bronx has in store.
The case is Sorrell v. IMS Health. Pharmacies sell information on which drugs individual doctors prescribe. Pharmaceutical companies buy that information so their salespeople will know exactly what each doctor’s preferences are, tailoring individual sales pitches to offer drugs similar to the ones each doctor favors.
Vermont passed a law making it illegal to sell this information to drug makers for sales pitches, though such data could still be sold with other organizations for other purposes, such as research or education. IMS Health sued, alleging that it violates free speech to prevent one company from selling this information to another company.
The Supreme Court agreed that Vermont’s law violates the First Amendment. In a 6-3 decision, the Court held that this content-based speech restriction amounted to government disfavoring a particular type of speaker (drug companies) from engaging in a particular form of speech (promoting new medicines).
The court suggested it might be possible to draft a content-neutral statute that could have a similar effect, pointing to a federal law on the books. But Vermont’s law was clearly taking sides on an issue involving speech, and it’s been recognized for decades that corporations have free-speech rights.
It’s no surprise that IMS Health won. Although rightly described as a moderate, it’s more accurate to say that Justice Anthony Kennedy is conservative on some issues and liberal on others.
The issue on which he is perhaps most conservative is free speech; he believes in robust public debate and wide-open sharing of facts and opinions without government control.
It’s also no surprise that Justice Stephen Breyer wrote a strong dissent, joined by liberal Justices Ruth Bader Ginsburg and Elena Kagan.
The surprise here is that Justice Sotomayor fully supported Kennedy’s opinion and sees some distinction between political speech and commercial speech. While the court recognizes such a distinction, it’s that political speech generally enjoys greater First Amendment protection than commercial speech. It’s possible that Sotomayor has her own unique theory on free speech, and only future cases will reveal it.
Examiner legal contributor Ken Klukowski is on faculty at Liberty University School of Law.