2 new cases ask what First Amendment protects

Tuesday, January 11, 2011

WASHINGTON — As well-developed as First Amendment law is, a threshold
question still sometimes arises in cases that make their way to the Supreme
Court: What does the First Amendment protect?

The high court granted review Jan. 7 in two cases — one involving the votes
of public officials, and the other the sale of prescription information — that
pose that basic question of whether the First Amendment is even involved.

In both cases, government agencies say the activities they are restricting
don’t even amount to speech that warrants First Amendment protection. In both
cases, lower courts ruled that the First Amendment was implicated.

The Commission on Ethics of the State of Nevada v. Carrigan is the
case that asks whether a vote cast by an elected officials is protected speech.
If the Supreme Court rules that it is, the commission argues, then ethics rules
restricting that speech by requiring elected officials, including judges, to
recuse themselves from voting in certain instances would be in peril.

Michael Carrigan was a member of the Sparks, Nev., City Council when he voted
to approve a casino-development plan submitted by a friend and former campaign
manager. He disclosed his relationship with the developer, but the ethics
commission censured him for not recusing.

On appeal, the Nevada Supreme Court ruled that a vote by an elected official
is protected speech, requiring that the ethics law be reviewed under “strict
scrutiny,” the high level of scrutiny that often results in speech restrictions'
being struck down. Under that standard, the court found the state ethics law was
overbroad and unconstitutional, because it did give clear guidance as to what
relationships require recusal.

The state ethics commission appealed to the U.S. Supreme Court, citing past
high court rulings that a public official’s vote is an act of governance, not
speech, and therefore not protected by the First Amendment. Even if a vote is
viewed as a form of speech, the state argues, the ethics law should be reviewed
under a less-demanding standard that applies to restrictions on speech by public
employees. A brief filed by Florida, Alabama, Colorado, Idaho, Louisiana,
Mississippi, Ohio and Texas supports Nevada’s position.

Carrigan, represented by lawyers for Sparks, argues that in fact, voting by
an elected official is “the pinnacle of political speech,” deserving the highest
level of protection from government regulation: “A vote cast by an elected
representative on a legislative measure exists at the confluence of all other
types of political speech.”

In Sorrell v. IMS Health, the other First Amendment case granted Jan.
7, the expression at issue is prescription-drug data — specifically,
“prescriber-identifiable data” that can be used to identify which doctors are
prescribing which drugs, and how much.

Pharmacies are required to gather the data under federal and state
regulations, and in recent years have begun selling the information to “data
miners,” who in turn sell it to drug companies that use it to guide their
marketing efforts toward physicians. Is it speech, or is it merely commercial
information that does not have First Amendment value?

In the name of privacy, Vermont and other states passed legislation to
restrict access to the information by requiring doctors to give permission
before their data can be sold for marketing purposes. IMS, a data-mining
company, challenged the law as a First Amendment violation, claiming that it
restricts publication of the information and stifles pharmaceutical companies’
speech rights to communicate with prescribers about better drugs.

The 2nd U.S. Circuit Court of Appeals agreed with the First Amendment
argument and struck down Vermont’s law. The neighboring 1st Circuit had upheld
similar laws in Maine and New Hampshire that had been challenged by the same
company, setting up a clear conflict between the circuits.

Vermont appealed to the high court, arguing that the law did not restrict
speech at all, but merely limits access to commercial information. IMS agreed
that the issue warranted high court review, but reiterated its opposition to the
law. If Vermont’s justification for the law stands, IMS argued, then “the state
is free to prohibit the Wall Street Journal from publishing stock prices.”

Both cases are likely to be argued in April.