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U.S. Supreme Court

Justices to Consider if Ban on Sale of Computerized Prescription Records Violates First Amendment

Posted Apr 26, 2011 5:30 AM CDT
By Debra Cassens Weiss

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Does a law that bars pharmacies from selling prescription information to drug marketers violate a right to free speech?

The U.S. Supreme Court will consider that question in oral arguments Tuesday. Drugmakers use the information, which includes the patients’ age and sex but not their names, when their sales representatives call on doctors. The New York Times, USA Today and SCOTUSblog have previews of the case, Sorrell v. IMS Health.

Under the law, drug companies cannot obtain the information unless doctors consent.

Vermont argues the law keeps health care costs from rising because of sales pitches for more expensive drugs. The U.S. Justice Department backs the state, arguing there is no First Amendment right to obtain information that is in private hands as a result of government-regulated transactions.

The drug companies argue that the law inhibits truthful speech on a matter of public concern, and that their sales reps use the prescription information to tell doctors about new and better treatments for their patients. SCOTUSblog founder Thomas Goldstein represents those challenging the law.

News organizations that use data mining in journalism have filed briefs taking the side of the drug companies. “In today’s 21st Century information-driven democracy,” gathering and publishing computer-generated data “is a centerpiece of freedom of speech,” the journalists’ brief says.

Vermont is one of three states banning sales of the prescription information. The others are Maine and New Hampshire.

SCOTUSblog analyzes the case this way: “Both sides in the case have made energetic efforts to promote their very different visions of what this case is all about, at its core, and that will complicate the court’s task from the outset. Is this a case about access to nonpublic information, or is it a case about censorship of a disfavored message?”

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