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36 Vt. L. Rev. 855 (2011-2012)
Sorrell v. IMS Health: Details, Detailing, and the Death of Privacy

handle is hein.journals/vlr36 and id is 863 raw text is: SORRELL V IMS HEALTH: DETAILS, DETAILING, AND THE DEATH OF PRIVACY Ashutosh Bhagwat*t INTRODUCTION In Sorrell v. IMS Health Inc., the Supreme Court struck down a Vermont statute that banned the sale or disclosure by pharmacies of information regarding the prescribing habits of physicians, if that information was going to be used for the purposes of marketing by pharmaceutical manufacturers.' The majority's application of the commercial speech doctrine in Sorrell confirms the modem vigor of that doctrine, and some of the language used by the majority may portend a further strengthening of constitutional protections for commercial speech in the future. If the Court does move in this direction, this might have profound implications for a host of modem regulatory schemes from regulation of prescription drugs to securities regulation. In short, Sorrell is an important commercial speech case, and it may turn out to be an extraordinarily important one. I, however, do not intend to focus on the commercial speech aspects of the Sorrell decision in this Article. My thesis is that an even more significant First Amendment issue lurks within this case: the proper analysis of laws that limit the disclosure of information in order to protect privacy. While protecting privacy was not the only, or even the primary, policy underlying the Vermont legislation, it was undoubtedly one factor that contributed to the passage of the legislation (and was invoked by the State as a justification for the statute during litigation).2 The Court, however, managed to largely avoid specifically addressing the larger issues regarding disclosures and privacy that might have been raised in this case by focusing on the fact that Vermont prohibited disclosure here only for the purposes of marketing-i.e., that Vermont targeted commercial speech. The broader, fundamental question touched on, but ultimately avoided by the Court, is whether a flat restriction on data disclosure constitutes an abridgement of free speech, raising serious First Amendment issues. Though it did not decide this question, the Court was not entirely silent on * Professor of Law, University of California at Davis School of Law. Contact: aabhagwat@ucdavis.edu. t Thanks to the University of New Hampshire Law Review and the Vermont Law Review for organizing this Symposium. 1. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2659 (2011). 2. Id. at 2668-69.