The obscenity conundrum, contingent harms, and constitutional consistency.

• Author: Huppin, Mark
• Position: D. When Can Government Permissibly Suppress Commercial Speech through Conclusion, with footnotes, p. 65-100

4. When Can Government Permissibly Suppress Commercial Speech?

   Two years after Virginia Pharmacy, in Ohralik v. Ohio State Bar Ass'n, the Court considered the constitutionality of state laws barring lawyers from direct, personal solicitation of potential clients. (200) In the time between these cases, the Court had rejected a statute seeking to bar lawyers from advertising the prices at which they conducted certain routine legal services, applying the rationale of Virginia Pharmacy. (201) But that was a case of simple advertising, and Ohralik raised more distasteful notions, including the image of the lawyer obnoxiously "ambulance chasing," i.e., meeting at hospital and home with accident victims, angling to represent them and exploiting their transitory vulnerability to undue influence. Given that solicitation under these circumstances threatened the worst of lawyerly overreaching including an elevated possibility of coercive harm, the Court distinguished the prior cases. (202) The law here validly protected the lay public from a potentially injurious commercial transaction, (203) even if, in any particular case, there was an absence of explicit proof or findings of harm or injury. (204)

   Some years later, in considering the constitutionality of a similar ban on direct, personal solicitation of prospective clients by Certified Public Accountants (CPAs), the Court was more revealing, clarifying its stance. (205) Ohralik was not typical; there you could single out beforehand a "substantial fraction" of in-person solicitations for their likely harmful potential. (206) Not all solicitation has enough to fill the mind with reasonable fear of harm and so warrant prohibition, however: "There are, no doubt, detrimental aspects to personal commercial solicitation in certain circumstances, but these detriments are not so inherent or ubiquitous that solicitation of this sort is removed from the ambit of First Amendment protection." (207) Foremost, the determination of harm, and thus the permissibility of regulation in solicitation scenarios, will turn on "the identities of the parties and the precise circumstances of the solicitation." (208) With CPA solicitation, the hazards were less than with lawyers, in part due to the presence of a prospective clientele presumably less typically vulnerable to coercion, and better able to grasp the importance of the choice to be made. (209) Because it didn't connect cause and harmful effect with the same degree of certainty as in Ohralik, the blanket prohibition on CPA solicitation didn't truly offend the Constitution. Under the circumstances there was too much fictional invention in the state's allegations of harm to justify the virtue of prophylactic protective measures.

   Most recently, in Sorrell v. IMS Health, Inc., (210) the Court applied "heightened scrutiny" to a Vermont regulation barring pharmacies from selling records containing a doctor's prescribing practices or disclosing the information for marketing purposes, absent a prescriber's consent. (211) The law likewise prohibited pharmaceutical companies from using the records for marketing without prescriber consent. (212) In explanation, the legislature had emphasized that when pharmaceutical companies market their products to doctors, they have a hard time avoiding capitalistic behavior, even if this means forgetting to communicate a comprehensive reality about different drugs. (213) Under this assumption, pharmaceutical marketers' motivation, their main motivation, is to promote the virtues of expensive name-brand drugs, which are more profitable than their generic equivalents. But name-brand drugs, so the argument proceeded, are not only more profitable but also potentially less beneficial (because newer and therefore less well-tested). Therefore, to the extent that a drug's value acquires meaning for doctors in the biased light of pharmaceutical marketing discussions, and only more profoundly so when these include targeted information about individual doctors' prescribing habits, the restrictions were designed to inhibit "prescription decisions not in the best interests of the patients or the state." (214) Revisiting the logic of Virginia Pharmacy, the Court nonetheless struck down the law. Absent far different circumstances, the Court noted, the "fear that people would make bad decisions if given truthful information" doesn't justify suppressing speech, (215) stating that this logic applies "with full force when the audience, in this case prescribing physicians, consists of 'sophisticated and experienced' consumers." (216)

   While it's too soon to estimate the long-term impact of Sorrell, we'd note several distinguishing points. First, while conceding that government in the proper case can and should protect consumers from "commercial harms" (explaining "why commercial speech can be subject to greater governmental regulation than noncommercial speech"), (217) Vermont's justification for regulation was far from substantial, "turn[ing] on nothing more than a difference of opinion." (218) Indeed, at oral argument before the Court, Vermont backed away from its legislature's contention, declining to support that the regulatory effect would be to alter doctors' prescription drug choices. (219) As the Court remarked: "The State's reluctance to embrace its own legislature's rationale reflects the vulnerability of its position." (220) For its part, the United States, which had appeared in support of Vermont for other reasons (related to perceived legitimate interests in reducing healthcare costs and safeguarding privacy), (221) took care to dispute the legislature's "unwarranted view" that the regulation would advance public health, noting that "[i]ntroduction of a new drug requires approval by the FDA, which in turn requires a showing by the manufacturer that the drug is safe and effective for its intended uses...." (222) Where, as here, disagreement on the wisdom of regulation comes from all sides, certainly it's uncontroversial that courts should be skeptical to accept that a more harmful world will be upon us unless we shutter channels of communication. (223)

   Second, Sorrell reinforces the feeling that in the commercial speech area, permissibility of regulation will turn on "the identity of the parties and the precise circumstances" of the commercial discussion. (224) Because doctors receiving prescription drug information shouldn't have any particular vulnerability to harmful influence, Vermont's regulation represented an especially blatant strain of paternalism. As the Court pointed out, given doctors' professional training, their hearing of a targeted message might as likely prove enriching as deluding to decision-making. (225) In other contexts as well, the Court has disclaimed the notion that physicians might be persuaded into poor prescribing decisions. (226) In this sense Sorrell's doctors should compare favorably to the adept business owner audience for CPA solicitation, each in their own area more than capable of comprehending the details past the shine. They hardly belong to the world of Ohralik's more manipulable accident victims.

   Third, in terms of purpose and effect there are differing degrees of troublesomeness with content-based laws, some more pernicious to First Amendment values than others. (227) The law here matched the depths of the worst kind: "In its practical operation, Vermont's law goes even beyond mere content discrimination, to actual viewpoint discrimination." (228) And that circumstance, the Court concluded, "is sufficient to justify application of heightened scrutiny." (229) Whether the Court ultimately applied some unspecified measure of "heightened judicial scrutiny" or garden-variety intermediate scrutiny isn't clear. (230) More certain is the analytical significance to the result of the law's viewpoint discriminatory effect. Almost as if trying to communicate an essential but underappreciated truth that might otherwise remain hidden from view, the Court reached its conclusion through repeating that Vermont had imposed both a "speaker- and content-based burden on protected expression." (231)

   It remains to be seen whether Sorrell's perhaps "unforgiving brand" of intermediate scrutiny (232) will be confined to its circumstances or might extend beyond these to some combination of conditions where a law imposes subject matter restrictions not based on viewpoint, where those allegedly threatening harm (even as in Sorrell third-party harm, generally a more defensible reason for regulation than concerns that we might hurt only ourselves) aren't sophisticated information consumers, where restriction doesn't suppress substantial amounts of potentially beneficial speech, (233) and where the argument to harm is more defensible and is actually defended. Notably, however, whereas the Court faulted Vermont's law for lacking a "neutral justification," (234) in juxtaposition to this it cited Virginia Pharmacy for the proposition that a state may selectively regulate advertising based on its view of where the greater harms reside. (235) This may suggest the functional import of Sorrell as providing that we may best distinguish good from bad not simply by dividing whether we're in the realm of commercial speech, but more fundamentally by governmental purposes. The Court has previously expressed similar feelings. (236)

   On this view, where government can show little more than policy intuition to support a law's relation to any acceptably important goal, the opportunity is greatest to mistake speech for a harmful object. Further, to the extent that this suggests greater concern with getting your way than with getting there by constitutionally appropriate means, it's more likely that government will have regulated too broadly, even if some commercial speech is deemed legitimately harmful. For the same reason, it's less likely that government here should comprehend the scope of threat to public...