Last week’s Supreme Court decision in Sorrell v. IMS Health Inc. signified a subtle yet important shift in commercial speech interpretation that may precede increased corporate strength in the legal arena. The opinion, by Justice Kennedy, argues that Vermont did not have grounds to ban pharmaceutical data-mining as it is a form of non-deceptive commercial information-sharing that is protected by the First Amendment. Certain to affect similar cases in Maine and New Hampshire, the decision holds that states will now need to broaden such claims in order to effectively challenge corporations. Within the dynamics of the court, however, the 6-3 ruling, with Justice Sotomayer’s surprising vote, means the fading legal distinction between commercial and noncommercial free speech is losing its political connotation.
The first mentions of commercial speech surfaced when a man named Chrestenson was denied the ability to advertise tours of his boat in New York through the use of handbills even after making a political statement on the reverse side. That was 1942. Since then and gaining frequency in the 70s, the Court chipped away at the ability of states to regulate corporations’ methods of communication. Proving invaluable in the Sorrell opinion, the 1980 four-prong “Central Hudson test” is the key mechanism to distinguish a case of commercial speech that warrants protection. However, the application of the “heightened scrutiny” afforded First Amendment debates to the Sorrell case provides grounds that the Test is losing significance.
The most recent Court strengthening of commercial speech protection fits into yet another trend: a pro-business Court. Led by Chief Justice Roberts, the decisions emerging at the end of the term increasingly yield to the interests of large corporations. For example, both decisions in Wal-Mart v. Dukes and AT&T v. Concepcion will make it harder for individuals to challenge such giant companies through class-action lawsuits. While the expanding First Amendment protection of commercial free speech is a definite victory, I am wary of its manipulation to blast big business out of reach of public accountability when examined in the context of other Court decisions.
The Sorrell opinion, wedged between two important trends dominating the current legal climate, is likely to lead to corporations fighting further government regulations. For example, online advertisers will fight privacy complaints using the same argument that accessing individuals’ information for marketing is protected commercial speech. Even tobacco companies may find grounds to protest new FDA half-box-sized warning labels that restrict brand communication.
Affording commercial speech protection allows these corporations to defend their marketing. With this promotion of commercial speech, however, I argue it is important to maintain the avenues of free speech afforded to noncommercial interests. Only in this way will these two types of free speech be able to merge and exist in harmony.