Amicus Curiae Brief — IMS Health Health, Inc. v. Ayotte (No. 08-1202)

Supreme Court. U.S.

FILED

uN (5) APR 27 2009

\ OFFICE OF THE CLERK

No. 08-1202

IN THE

Supreme Court of the Wnited States

IMS HEALTH, INC., ET AL.,

PETITIONERS

Lo

KELLY A. AYOTTE, ATTORNEY GENERAL OF NEW

HAMPSHIRE,

RESPONDENT

On Petition for Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF OF AMICUS CURIAE ASSOCIATION OF

NATIONAL ADVERTISERS, INC. INSUPPORT OF

PETITIONERS

Bruce Johnson Robert Corn-Revere

DAVIS WRIGHT TREMAINE LLP Counsel of Record

1201 Third Avenue DAVIS WRIGHT TREMAINE LLP

Suite 2200 1919 Pennsylvania Ave., NW

Seattle, WA 98101 Suite 200

Washington, DC 20006

Terri Keville (202) 973-4200

DAVIS WRIGHT TREMAINE LLP

865 South Figueroa Street

Suite 2400

Los Angeles, CA 90017

Counsel for Amicus

LEGAL PRINTERS LLC, Washington DC @ 202-747-2400 e legalprinters.com

1

CORPORATE DISCLOSURE STATEMENT

Although not strictly required by Rule 29.6 or

37.5, the instant Amicus submits the following

corporate disclosure statement:

Amicus is incorporated as a nonprofit trade

association, has no parent corporation, and has no

stock or other interest owned by a publicly held

company.

il

TABLE OF CONTENTS

CORPORATE DISCLOSURE

STATEMENT

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF THE ARGUMENT

I. THE DECISION BELOW BREAKS

SHARPLY WITH THE GENERAL

TREND RECOGNIZING GREATER

PROTECTION FOR COMMERCIAL

SPEECH

. THE CIRCUIT COURT DECISION

CONTAINS FUNDAMENTAL

DOCTRINAL ERRORS THAT

REQUIRE CORRECTION AND

CLARIFICATION BY THIS COURT

A. The First Circuit’s Finding That

The New Hampshire Law

Regulates Only Conduct Is

Patently Erroneous

B. The First Circuit’s Definition Of

Commercial Speech Is

EEE eee 16

CONCLUSION

lll

TABLE OF AUTHORITIES

CASES

44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996)

Adventure Commce'ns, Inc. v. Kentucky

Registry of Election Fin.,

191 F.3d 429 (4th Cir. 1999)

Bigelow v. Virginia,

421 U.S. 809 (1975)

Board of Trustees of the State Univ. of N_Y.

v. Fox,

492 U.S. 469 (1989)

Bolger v. Youngs Drug Prods. Corp.,

Oe a Me a Si vss cece skits x chav errcossvavsrsaoe Pa

Central Hudson Gas & Elec. Corp. v. Public

Serv. Comm'n,

447 U.S. 557 (1980) passim

CFTC v. Vartulr,

228 F.3d 94 (2d Cir. 2000)

City of Cincinnati v. Discovery Network,

Eee, BOT UB. GAO CRO onic covescecs...2s.... 7, 8, 16, 19

City of Lakewood v. Plain Dealer Publ'z

Co., 486 U.S. 750 (1988)

Edenfield v. Fane,

ae ee I i Socket ees cectkoniees . 7, 22

1V

Florida Bar v. Went For It, Inc.,

515 U.S. 618 (1995)

Greater New Orleans Broad. Ass'n v.

United States,

527 U.S. 173 (1999)

Grosjean v. American Press Co.,

297 U.S. 233 (1936)

Halter v. Nebraska,

205 U.S. 34 (1907)

Hoover v. Morales,

164 F.3d 221 (5th Cir. 1998)

Ibanez v. Florida Dep't of Bus. & Prof]

Regulation,

512 U.S. 136 (1994)

IMS Health Inc. v. Ayotte,

550 F.3d 42 (1st Cir. 2008)

Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952)

Kasky v. Nike, Inc.,

27 Cal. 4th 939, 119 Cal. Rptr. 2d 296,

45 P.3d 243 (2002)

Lanphere & Urbaniak v. Colorado,

21 F.3d 1508 (10th Cir. 1994)

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001)

Lovell v. City of Griffin,

303 U.S. 444 (1938)

Mason v. Florida Par,

208 F.3d 952 (11th Cir. 2000)

Mattel, Inc. v. MCA Records, Inc.,

296 F.3d 894 (9th Cir. 2002)

Minneapolis Star & Trib. Co. v. Minnesota

Comm 'r of Revenue,

460 U.S. 575 (1983)

Mutual Film Corp. v. Industrial Comm'n,

I ci cscccoiscsncvaceveceveonssésacevses 5, 14

NAACP v. Button,

371 U.S. 415 (1963)

NCTA v. FCC.

555 F.3d 996 (D.C. Cir. 2009) .................... 15

Nike, Inc. v. Kasky,

539 U.S. 654 (2003)

Pharmaceutical Care Mgmt. Ass‘n v. Rowe,

429 F.3d 294 (1st Cir. 2005)

Pittsburgh Press Co. v. Human Relations

Comm'n,

413 U.S. 376 (1973)

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992)

Randall v. Sorrell

te, SD ID ooo vce ccicccncccccscsiaccsnicscccens 13

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980)

vl

Rubin v. Coors Brewing Co.,

514 U.S. 476 (1995)

Rumsfeld v. Forum for Acad. & Inst.

Rights, Inc.,

547 U.S. 47 (2006)

SKF USA, Inc. v. U.S. Customs and Border

Prot.,

556 F.3d 1337 (Fed. Cir. 2009)

Smith v. California,

361 U.S. 147 (1959)

Thompson v. Western States Med. Ctr.,

535 U.S. 357 (2002)

U.S. West, Inc. v. FCC,

182 F.3d 1224 (10th Cir. 1999)

Universal City Studios, Inc. v. Corley,

Rae Pie oe Ce Com, DOOD)... .....6. 000000000055. 15

Valentine v. Chrestensen,

316 U.S. 52 (1942)

Virginia State Bd. of Pharmacy v. Virginia

Citizens Consumer Counctl, Inc.,

425 U.S. 748 (1976)

Yniguez v. Arizonans for Official English,

69 F.3d 920 (9th Cir. 1995) (en bano,

vacated as moot, 520 U.S. 43 (1997)

STATUTES

28 U.S.C. § 1257

N.f. Bev. Stat. Ann. § 318°47°T ..............0.0..0006 2, 17

Vll

OTHER AUTHORITIES

Frederick F. Schauer, The Aim and Target In

Free Speech Methodology, 83 Nw. U. L.

Ss ic a. 10

Harry Kalven, Jr., The Concept of the Public

Forum: Cox v. Louisiana, 1965 SuP. C7.

Laurence H. Tribe, AMERICAN

CONSTITUTIONAL LAW (2d ed. 1988).............. 12

Melville B. Nimmer, FREEDOM OF SPEECH

Ie ie saa cccawdaavcdassicsacesiecus 12

1

BRIEF OF AMICUS CURIAE ASSOCIATION OF

NATIONAL ADVERTISERS, INC. IN SUPPORT

OF PETITIONERS

Amicus Curiae, the Association of National

Advertisers, Inc. (“ANA”), respectfully requests that

this Court grant the petition for writ of certiorari.!

INTEREST OF AMICUS CURIAE

The ANA leads the marketing community by

providing insights, collaboration and advocacy to its

membership, which includes over 350 companies

with 9,000 brands that collectively spend over $100

billion in marketing communications and

advertising annually in the United States. The ANA

strives to communicate marketing best practices, to

lead industry initiatives, to influence industry

practices, to manage industry affairs, and to

advance, promote and protect advertisers and mar-

keters. The ANA also serves its members by

advocating clear and coherent legal standards

governing advertising, including this Court’s

commercial speech doctrine.

The decision in JMS Health Inc. v. Ayotte, 550

F.3d 42 (1st Cir. 2008) strikes at the heart of these

interests. The First Circuit upheld New

Hampshire’s Prescription Information Law (“PIL”),

which bans the communication or use of drug

prescribing histories for commercial purposes.2 To

! No counsel for a party authored this brief in whole or in

part and no such counsel or party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person, other than the amicus curiae or its

counsel, made a monetary contribution to its preparation or

submission. The parties have been given at least ten days

notice of the intention of amicus ANA to file, and have

consented to the filing of this brief.

2 Specifically, the PIL provides that “[rlecords relative to

prescription information .. . shall not be licensed, transferred,

used, or sold .. . for any commercial purpose,” which it defines

broadly to include “advertising, marketing, promotion, or any

2

reach this conclusion, the court below held that the

transfer of truthful, nonmisleading data could be

characterized as “conduct,” not speech, and thereby

avoid First Amendment scrutiny altogether. Jd. at

50°54. Alternatively, the court analyzed the law

under the commercial speech doctrine, sd. at 54-60,

and held that the statute’s expansive definition of

restricted activities, which extends far beyond

speech proposing a commercial transaction, justified

applying the lower level of constitutional protection

set forth in Central Hudson Gas & Elec. Corp. v.

Public Serv. Comm'n, 447 U.S. 557 (1980).

Both conclusions undermine the constitutional

protections guaranteed to ANA’s’~ members,

contradict this Court's commercial speech

jurisprudence, perpetuate confusion among _ the

circuit courts, and require correction by this Court.

SUMMARY OF THE ARGUMENT

ANA supports all of the arguments for review

raised in the Petition. Not only did the circuit court

below fail to apply correctly long-settled principles

under the commercial speech doctrine,? the opinion

activity that could be used to influence sales or market share of

a pharmaceutical product, influence or evaluate the prescribing

behavior of an individual health care professional, or evaluate

the effectiveness of a professional pharmaceutical detailing

sales force.” N.H. Rev. Stat. Ann. § 318:47-f.

3 For example, the First Circuit found that it “demand|[s]

too much” to require New Hampshire to document that the ban

on data mining would serve its asserted interest because “New

Hampshire was the first state to deny detailers access to

prescribing histories.” JMS Health Inc., 550 F.3d at 58. Such

deference to “legislative judgment” where “evidence simply

does not exist,” 1d, fires in the face of numerous decisions of

this Court holding that “a governmental body seeking to

sustain a restriction on commercial speech must demonstrate

that the harms it recites are real and that its restriction will in

fact alleviate them to a material degree.” Hdenfield v. Fane,

507 U.S. 761, 771 (1993); Thompson v. Western States Med.

Ctr., 535 U.S. 357, 373 (2002); Rubin v. Coors Brewing Co., 514

U.S. 476, 486-87 (1995). See 44 Liquormart, Inc. v. Rhode

3

further obscures important issues that have not yet

been fully resolved by this Court. Notwithstanding

our endorsement of the points raised in the Petition,

this brief focuses principally on two issues: (1)

whether the exchange of factual information can be

denied First Amendment protection simply by

characterizing it as “conduct,” and (2) whether the

standard for commercial speech articulated in

Central Hudson applies more broadly beyond speech

that does no more than propose a commercial

transaction. Regardless whether the test for

commercial or noncommercial speech is applied, the

court below erred in upholding the New Hampshire

law.

The First Circuit's conclusion that the PIL is

immune from First Amendment scrutiny because it

prohibits only “conduct” is unsupported by the

decisions of this Court and greatly confuses First

Amendment jurisprudence. To be sure, categories of

unprotected speech exist, but not because they are

considered to be conduct rather than expression.

Contrary to the reasoning of the court below, this

Court’s decisions have long extended First

Amendment protection to the entire communication

process, from the gathering and printing of

information through its dissemination. Such

protection is unaffected by the fact that

communication requires some form of “conduct” or

the information may be labeled a “commodity.”

The lower court’s conclusion that constitutional

protection may be withheld to parts of a

communicative enterprise that may be characterized

as “conduct” is profoundly dangerous for First

Island, 517 U.S. 484, 508-11 (1996) (rejecting “legislative

judgment” that a ban on alcohol price advertising would

promote temperance). Nothing in this Court’s cases supports

the conclusion that New MHampshire’s burden of proof

disappears or is lessened simply because it is the first state to

adopt such restrictions.

4d

Amendment law in general, and not just with

respect to commercial speech. All expression

requires conduct of some kind, and there is no logical

limit to the restrictions that may be imposed if the

government can freely restrict components of

expression it deems to be “conduct.” This Court has

long rejected the notion that the state is free from

constitutional constraints by claiming only to

regulate the process of communication or by calling

it business activity. The decision below is at odds

with this clear line of authority and conflicts with

decisions in other circuits that have recognized

protection for the collection and use of commercial

data.

The First Circuit decision also highlights an

unsettled question about the scope of the commercial

speech doctrine. This Court has long grappled with

whether to define commercial expression broadly, as

speech related to the commercial interests of the

speaker, or more narrowly, as speech that does no

more than propose a commercial transaction. The

question is of vital importance, because the answer

determines whether expression is accorded the

somewhat less rigorous constitutional protections

that historically have been applied to commercial

speech.

In this case, the First Circuit’s embrace of the

broader definition based on the speaker’s commercial

interests conflicts with the clear trend of this Court’s

decisions that have applied an increasing level of

protection for commercial speech. In doing so, it

exploited the fact that this Court has not explicitly

resolved the definitional question, even though the

prevailing logic of the cases supports the narrower

formulation. The decision below deepened a split

among the circuit courts on this question and

threatens to obscure the scope of the commercial

speech doctrine. Review by this Court is essential.

5

ARGUMENT

I. THE DECISION BELOW BREAKS

SHARPLY WITH THE GENERAL TREND

RECOGNIZING GREATER PROTECTION

FOR COMMERCIAL SPEECH

For more than three decades, this Court has

recognized that “a particular consumer’s interest in

the free flow of commercial information . .. may be

as keen, if not keener by far, than his interest in the

day’s most urgent political debate.” Virginia State

Bd. of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748, 763 (1976). See also

Bigelow v. Virginia, 421 U.S. 809, 818-20 (1975). In

addition to the needs of particular individuals,

“society also may have a strong interest in the free

flow of commercial information,” and a particular

advertisement, “though entirely ‘commercial,’ may

be of general public interest.” Virginia State Bd. of

Pharmacy, 425 U.S. at 764. These observations

and the legal doctrine that emerged from them — did

not limit First Amendment protection only to

advertising that related in some way to a “public”

issuc. This Court explained that the constitutional

interest in commercial speech is the “dissemination

of information as to who is producing and selling

what product, for what reason, and at what price” in

order to facilitate “numerous private economic

decisions.” /d. at 765. “To this end, the free flow of

commercial information is indispensable.” /d.

Spawning the development of the commercial

speech doctrine, Virginia State Board of Pharmacy

represented a sharp break with the Court’s prior

approach to such expression. For example, nascent

First Amendment jurisprudence denied

constitutional protection to cinema and allowed

states to ban films, reasoning that “(t]he exhibition

of moving pictures is a business, pure and simple,

originated and conducted for profit.” Mutual Film

Corp. v. Industrial Comm'n, 236 U.S. 230, 244

6

(1915). Among other things, the Court observed

that, while opinion is free, “conduct alone is

amenable to the law.” Jd. at 243 (emphasis added).

It likewise upheld a state law that banned the use of

images of the American flag “as an advertisement on

a bottle of beer.” Halter v. Nebraska, 205 U.S. 34, 42

(1907). Similarly, in Valentine v. Chrestensen, 316

U.S. 52, 53 (1942), the Court upheld a provision of

the New York Sanitary Code that prohibited the act

of “distributling] in the streets .. . commercial and

business advertising matter.” See id. at 54

(prohibiting “such activity” is a matter of legislative

judgment and does not violate the Constitution).

The “simpuistic approach” of Chrestensen and

prior commercial speech cases has been thoroughly

repudiated by this Court,‘ and a separate test was

fashioned for “speech which does ‘no more than

propose a commercial transaction.” Virginia State

Bd. of Pharmacy, 425 U.S. at 762 (quoting

Pittsburgh Press Co. v. Human Relations Comm'n,

413 U.S. 376, 385 (1973)). In Central Hudson, 447

U.S. at 562-63, 566, this Court established a four

part inquiry for determining the constitutionality of

restrictions on commercial speech, but also held that

the Constitution accords somewhat less (but still

substantial) protection in this area than it does for

non-commercial expression.

Decisions issued since then have increased

significantly the level of protection for commercial

speech, and in the past two decades the Court has

4 Virginia State Bd. of Pharmacy, 425 U.S. at 759 (“the

notion of unprotected ‘commercial speech’ [has] all but passed

from the scene”). See Bigelow, 421 U.S. at 818-20. For a

precursor to these decisions, see Joseph Burstyn, Inc. v.

Wilson, 343 U.S. 495, 501-02 (1952) (‘That books, newspapers,

and magazines are published and sold for profit does not

prevent them from being a form of expression whose liberty is

safeguarded by the First Amendment. We fail to see why

operation for profit should have any different effect in the case

of motion pictures.”).

7

invalidated: (1) an ordinance that regulated the

placement of commercial newsracks, City of

Cincinnati v. Discovery Network, Inc., 507 U.S. 410,

430-31 (1993); (2) a state ban on in-person

solicitation by CPAs, Edenfield, 507 U.S. at 777; (3)

a state ban on using the designations “CPA” and

“CFP” on law firm stationery, /banez v. Florida Dep't

of Bus. & Prof! Regulation, 512 U.S. 136 (1994); (4)

a restriction on listing alcohol content on beer labels,

Rubin, 514 U.S. at 491; (5) a state ban on advertising

alcohol prices, 44 Liquormart, 517 U.S. at 516; (6) a

federal ban on broadcasting casino advertising,

Greater New Orleans Broad. Assn v. United States,

527 U.S. 173 (1999); (7) state regulation of tobacco

advertising, Lorillard Tobacco Co. v. Reilly, 533 U.S.

525 (2001); and (8) FDA restrictions on advertising

the practice of drug compounding, Western States

Med. Ctr., 535 U.S. at 377.

Even as this Court has approved an increasing

level of protection for purely commercial messages, it

has stressed the importance of clarifying the

distinction between fully protected expression and

that which falls under the commercial speech

doctrine. The Central Hudson Court cautioned that

“special care” should be taken in the case of any ban

on speech, noting that “in recent years, this Court

has not approved a blanket ban on commercial

speech unless the expression itself was flawed in

some way, either because it was deceptive or related

to unlawful activity.” Central Hudson, 447 U.S. at

566 n.9. Clarity in drawing this line is essential “to

ensure that speech deserving of _ greater

constitutional protection is not inadvertently

suppressed.” Bolger v. Youngs Drug Prods. Corp.,

463 U.S. 60, 66 (1983); Discovery Network, 507 U.S.

at 422-23. See also id. at 423 n.19 (“[Tlhe

responsibility for distinguishing between the two

carries with it the potential for invidious

discrimination of disfavored subjects.”).

8

The search for predictable standards has

prompted continuing debate on the Court about the

breadth of the commercial speech doctrine and even

the propriety of maintaining a_ separate

constitutional standard at all. See, eg, 44

Liquormart, 517 U.S. at 501 (Stevens, J., plurality

op.) (The mere fact that messages propose

commercial transactions does not in and of itself

dictate the constitutional analysis that should apply

to decisions to suppress them.”); zd. at 523-24

(Thomas, J., concurring) (“I do not believe that such

a test should be applied to a restriction of

‘commercial’ speech, at least when, as here, the

asserted interest is one that is to be achieved

through keeping would-be recipients of the speech in

the dark.”); zd. at 517 (Scalia, J., concurring in part)

(“I share Justice Thomas’s discomfort with the

Central Hudson test, which seems to me to have

nothing more than policy intuition to support it.”).

See also Rubin, 514 U.S. at 493 (Stevens, J.,

concurring) (“The Court’s continued reliance on the

misguided approach adopted in Central Hudson

makes this case appear more difficult than it is.”);

Discovery Network, 507 U.S. at 438 (Blackmun, J.,

concurring) (“I hope the Court ultimately will come

to abandon Centra/ Hudson's analysis entirely in

favor of one that affords full protection for truthful,

noncoercive commercial speech about lawful

activities.”). In short, this Court’s commercial

speech jurisprudence has never fully resolved some

fundamental issues regarding the scope of the

doctrine and its application to particular situations.

The decision below does not raise a challenge to

the continuing validity of Central Hudson, but it

presents fundamental questions about the

government’s ability to avoid First Amendment

scrutiny altogether when it bans the exchange of

truthful information, as well as the proper definition

of commercial speech. It constitutes a sharp break

with the general trend of commercial speech cases

9

that have recognized greater protection for the free

flow of commercial information, and it adds to

confusion among the circuit courts.

Il. THE CIRCUIT COURT DECISION

CONTAINS FUNDAMENTAL DOCTRINAL

ERRORS THAT REQUIRE CORRECTION

AND CLARIFICATION BY THIS COURT

A. The First Circuit’s Finding That The New

Hampshire Law Regulates Only Conduct Is

Patently Erroneous

The central premise of the circuit court decision

is that the dissemination of prescribing histories for

commercial purposes may be banned without any

First Amendment scrutiny at al/ so long as the

information is characterized as a “commodity.” JMS

Health Inc., 550 F.3d at 53. Describing the PIL asa

regulation of “conduct, not expression,” the court’s

analysis is summed up thusly:

The plaintiffs, who are in the business

of harvesting, refining, and selling this

commodity, ask us in essence to rule

that because their’ product is

information instead of, say beef jerky,

any regulation constitutes a restriction

of speech. We think that such an

interpretation stretches the fabric of

the First Amendment beyond any

rational measure.

Id. This bizarre analogy is wrong, if for no other

reason because the State of New Hampshire is not

regulating beef jerky — it is banning the flow of

information because it may be used to persuade.

Calling the information used to engage in protected

speech a “commodity” does not make it chopped

liver, or, to parrot the lower court’s strained

metaphor, dried beef. Nor is there any support in

5 Judge Lipez dissented in part, correctly reasoning that

the court may not “insulate this expression-based intention [of

10

this Court’s opinions for such constitutional sleight

of hand. See, e.g., Smith v. California, 361 U.S. 147,

152 (1959) (rejecting an analogy between regulating

speech and regulating food); NAACP v. Button, 371

U.S. 415, 429 (1963) (“[A] State cannot foreclose the

exercise of constitutional rights by mere labels.”).

Judge Selya’s majority opinion begins with the

unexceptional observation that “it has never been

deemed an abridgment of freedom of speech or press

to make a course of conduct illegal merely because

the conduct was in part initiated, evidenced, or

carried out by means of language, either spoken,

written, or printed.” JMS Health Inc., 550 F.3d at 51

(quoting Rumsfeld v. Forum for Acad. & Inst. Rights,

Inc., 547 U.S. 47, 62 (2006) (citation omitted). From

this basic premise, he leaps to the indefensible

conclusion that the “course of conduct” that may be

banned without constitutional implications is the

gathering and use of truthful, nonmisleading

information for purposes of “advertising, marketing,

promotion, or any activity that could be used to

influence sales or market share of a pharmaceutical

product,” and other related communications.

It is no doubt true that the use of language or

information is not an absolute litmus test for First

Amendment protection. Certain types of expression,

such as extortion, perjury, bomb threats, price fixing

agreements, or publication of state secrets,

traditionally have been held to be unprotected,

notwithstanding the fact that they necessarily

involve the use of “speech.” See, e.g., Frederick F.

Schauer, The Aim and Target in Free Speech

Methodology, 83 Nw. U. L. REV. 562, 563 (1989). The

First Circuit majority purports to identify “a

doctrinal mystery” by citing examples of other laws

the PIL] from First Amendment scrutiny by directing its

legislation to an earlier step in the communicative process.”

IMS Health Inc., 550 F.3d at 80 (Lipez, J., concurring and

dissenting).

11

that may be enforced without violating the First

Amendment notwithstanding the “speech”

component of the offense (e.g, antitrust laws,

prohibitions against creating a hostile work

environment, laws governing union elections), and

concludes, based on its “felt sense” of the matter,

that the information banned by the PIL falls within

the same “complex of de facto exceptions” to

constitutional protection. JMS Health Inc., 550 F.3d

at 52 (collecting cases). But none of those examples

support the result below — that the communication of

data may be suppressed simply because it may be

used to persuade people to make what the

government believes are “unwise” choices.®

In sleuthing out what it claims to be a mystery,

the First Circuit instead simply miusstates the

question. The issue in the cases it cites is not that

there is a tangible distinction between “speech” and

“conduct;” it is whether the expression at issue may

itself be considered a crime. The lower court’s error

is evident from its reference to obscenity, fighting

words, and false commercial speech as the “proof of

this pudding [ ] that entire categories of speech

receive no protection at all from the First

Amendment.” /d. at 51-52. The existence of certain

types of unprotected speech may be undeniable, but

such categories are not identified by “conduct.” See

R.A.V. v. City of St. Paul, 505 U.S. 377, 383-84

(1992) (“[Tlhese areas of speech can, consistently

6 See 44 Liquormart, 517 U.S. at 503 (The First

Amendment directs us to be especially skeptical of regulations

that seek to keep people in the dark for what the government

perceives to be their own good.”). The court below seeks to

bolster its conclusion by asserting that the speech banned by

the PIL “is of scant societal value,” MS Health Inc., 550 F.3d

at 52, but such an imperious observation ignores the teaching

of this Court that “the speaker and the audience, not the

government, assess the value of the information presented.”

Western States Med. Ctr., 535 U.S. at 367 (quoting Kdenfield,

507 U.S. at 767).

12

with the First Amendment, be regulated because of

their constitutionally proscribable content

(obscenity, defamation, etc.), not that they are

categories of speech entirely invisible to the

Constitution, so that they may be made the vehicles

for content discrimination unrelated to _ their

distinctively proscribable content.”) (emphasis in

original). No precedent supports making the

gathering and communication of truthful

information for commercial purposes a criminal act.

What does create a doctrinal mystery is finding a

stopping point if other courts were to accept the

First Circuit’s proposition that regulating or banning

a component of speech as “conduct” requires no First

Amendment scrutiny. JMS Health Inc., 550 F.3d at

51-52. This is because all expression requires

conduct. The printing and circulation of newspapers

entails a great deal of physical activity, and, as more

than one commentator has noted, the same can be

said of speech “even if it only be the use of one’s

vocal chords.” Melville B. Nimmer, FREEDOM OF

SPEECH § 3.06[B] n.15 (1984); Laurence H. Tribe,

AMERICAN CONSTITUTIONAL LAW 827 (2d ed. 1988)

(‘[Alny particular course of conduct may be hung

almost randomly on the ‘speech’ peg or the ‘conduct’

peg as one sees fit.”); Harry Kalven, Jr., The Concept

of the Public Forum: Cox v. Louisiana, 1965 SUP. CT.

REV. 1, 23 (“{A]ll speech is necessarily ‘speech

plus.”). The Ninth Circuit has observed that “speech

in any language consists of the ‘expressive conduct’

of vibrating one’s vocal chords, moving one’s mouth

and thereby making sounds, or of putting pen to

paper, or hand to keyboard.” Yniguez v. Arizonans

for Official English, 69 F.3d 920, 934 (9th Cir. 1995)

(en bano, vacated as moot, 520 U.S. 43 (1997).

Consequently, if the First Circuit were correct that

the government could freely regulate any “conduct”

required _ for expression, then the only

communication that would be fully protected under

the First Amendment would be telepathy. See Tribe,

13

supra at 827 (“[A]ll communication except perhaps

the extrasensory variety involves conduct.”).

The First Circuit's erroneous analysis is not

limited to commercial speech. As its citation of cases

on other subjects suggests, its reasoning would

permit the government to ban any _ discrete

component of the communications process, so long as

that activity could be characterized as “conduct.”

However, as this Court has made quite clear in

numerous cases, the government runs afoul of the

Constitution when it attempts to single out and

restrict any particular part of a communicative

enterprise under the rubric of regulating action and

not speech.

Thus, the First Amendment has been held to

protect the materials necessary for printing,

Minneapolis Star & Trib. Co. v. Minnesota Comm'r

of Revenue, 460 U.S. 575 (1983) (striking down tax

on newsprint and ink); newsgathering activities,

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

(1980) (First Amendment requires right of access to

criminal trials); and circulation of publications,

including the physical placement of newsboxes. City

of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750

(1988). See Lovell v. City of Griffin, 303 U.S. 444,

452 (1938) (“Liberty of circulating is as essential to

thle] freedom [of the press] as liberty of publishing:

indeed, without the circulation, the publication

would be of little value.”) (citation omitted). It has

also held that the First Amendment protects

campaign expenditures and contributions, since

restricting such actions necessarily reduces the

quantity of expression in political campaigns by

restricting the number of issues discussed, the depth

of their exploration, and the size of the audience

reached. Aandal/ v. Sorrell 548 U.S. 230, 246

(2006). Such precedents foreclose the First Circuit’s

conclusion.

14

This clear line of authority is unaffected by the

fact that the communication New Hampshire has

banned has a commercial purpose, re. that

information is used as “a commodity.” JMS Health

Inc., 550 F.3d at 53. As this Court pointed out in

Bigelow, 421 U.S. at 818, “fo]ur cases .. . clearly

establish that speech is not stripped of First

Amendment protection merely because it appears in

[commercial] form.” It explained further that First

Amendment protections for commercial speech

extend to the entire communication process, which

includes the communication, its source and its

recipients. Virginia State Bd. of Pharmacy, 425 U.S.

756-57. Cf Grosjean v. American Press Co., 297

U.S. 233, 240, 244-45 (1936) (invalidating tax

imposed on any person or corporation “engaged in

the business of selling .. . advertising or for

advertisements, whether printed or published”). To

hold otherwise — as the First Circuit did below —

threatens to return First Amendment jurisprudence

to the era in which films could be banned because

“[tlhe exhibition of moving pictures is a business,

pure and simple, originated and conducted for

profit,” Mutual Film Corp., 236 U.S. at 244, and:

commercial handbills could be outlawed because

“distributling] . . . commercial and_ business

advertising matter’ could result in litter.

Ch. estensen, 316 U.S. at 53°54.

“che majority opinion below attempts to minimize

the drastic implications of its logic by claiming that

“detailing,” using drug prescription data, is just part

of the “art of marketing” that is used “[iJn the service

of maximizing drug sales [whereby] detailers use

prescribing histories as a means of targeting

potential customers more precisely and as a tool for

tipping the balance of bargaining power in their

favor.” IMS Health Inc., 550 F.3d at 54. However,

the lower court’s flurry of words distinguishing

“targeted marketing” from protected speech lacks

any logical or legal support. The value of advertising

15

depends on the ability to get the message to the right

audience, and this Court has held that a restriction

on targeted marketing efforts necessarily implicates

the First Amendment. £.g., Florida Bar v. Went For

It, Inc., 515 U.S. 618 (1995). As the Tenth Circuit

noted in striking down a ban on the use of customer

data to make targeted solicitations, “a restriction on

speech tailored to a particular audience, ‘targeted

speech,’ cannot be cured simply by the fact that a

speaker can speak to a larger indiscriminate

audience, ‘broadcast speech.” U.S. West, Inc. v.

FCC, 182 F.3d 1224, 1232 (10th Cir. 1999).

At the very least, review by this Court is

essential to correct the doctrinal confusion

engendered by the First Circuit’s decision and to

clarify a division among the circuit courts about the

First Amendment protection accorded’ such

commercial data. Contrary to the lower court’s

finding that the compilation and communication of

information on_ prescribing histories may be

regulated as conduct because the “putative speech

comprises items of nugatory informational value,”

IMS Health Inc., 550 F.3d at 52, at least two other

circuits have held that the distribution of purely

factual information for a commercial purpose is

constitutionally protected. As noted above, the

Tenth Circuit in U.S. West, Inc., 182 F.3d at 1232,

held that prohibiting the use of customer proprietary

network information (“CPNI”) to make targeted

sales presentations violates the First Amendment.

See also Lanphere & Urbaniak v. Colorado, 21 ¥.3d

1508, 1513 (10th Cir. 1994). The D.C. Circuit has

reached the same conclusion. NCTA v. FCC, 555

F.3d 996, 1000 (D.C. Cir. 2009). Under

circumstances analogous to the facts of this case,

these circuits have applied the widely understood

principle that “lelven dry information, devoid of

advocacy, political relevance, or artistic expression,”

merits First Amendment protection. E.g., Universal

City Studios, Inc. v. Corley, 273 F.3d 429, 446-47 (2d

16

Cir. 2001). The anomalous decision in this case thus

has split the circuits and requires review.

B. The First Circuit’s Definition Of Commercial

Speech Is Excessively Broad

This Court has struggled for years to devise a

uniform definition of commercial speech, recognizing

that crafting a coherent definition is a critical

threshold question that determines the level of First

Amendment protection that will apply in a given

case. It has described “the test for identifying

commercial speech,” as speech that does no more

than propose a commercial transaction, Discovery

Network, 507 U.S. at 423 (quoting Board of Trustees

of State Univ. of N.Y. v. Fox, 492 U.S. 469, 473-74

(1989)) (emphasis in original]), but has also referred

more generally to “expression related solely to the

economic interests of the speaker and its audience.”

Central Hudson, 447 U.S. at 561. This case

underscores the pressing need for the Court to

clarify the proper application of the commercial

speech doctrine.

Without a definitive word from this Court as to

whether the broader or narrower formulation should

control, the circuits have become deeply divided, and

the decision below only makes matters worse. In

addition to the First Circuit below, three circuits

have adopted the broader definition, which subjects

more speech to a lesser degree of First Amendment

protection. See SKF USA, Inc. v. U.S. Customs and

Border Prot., 556 F.3d 1337, 1355 (Fed. Cir. 2009);

Mason v. Florida Bar, 208 F.3d 952, 955 (11th Cir.

2000); Hoover v. Morales, 164 F.3d 221, 225 (5th Cir.

1998). The opinion below “rejectled)” the narrower

test set forth in Fox and Discovery Network in favor

of the more encompassing definition applied in other

First Circuit cases. JMS Health Inc., 550 F.3d at 54-

05. See, e.g., Pharmaceutical Care Mgmt. Ass'n v.

Rowe, 429 F.3d 294, 309 (lst Cir. 2005). The

analysis of the court below was then picked up by a

17

divided Federal Circuit in SKF’ USA, JInc., 556 F.3d

at 1355. But see id. at 1371 n.5 (Linn, J., dissenting)

(narrower definition should apply and “JMS was

incorrectly decided”). At the same time, three other

circuits apply the narrower definition set forth by

this Court as speech that does no more than propose

a commercial transaction. Mattel, Inc. v. MCA

Records, Inc., 296 F.3d 894, 906 (9th Cir. 2002);

CFTC v. Vartuli, 228 F.3d 94, 110 n.8 (2d Cir. 2000);

Adventure Comme’ns, Inc. v. Kentucky Registry of

Election Fin., 191 F.3d 429, 440 (4th Cir. 1999).

In this case, the decision below is erroneous

regardless whether Central Hudson or the test

governing restrictions on noncommercial speech

applies. See supra nn.3, 6. But the breadth of

speech covered by the PIL highlights the importance

of defining commercial speech precisely. The law

prohibits the collection or use of prescriber data for

“any commercial purpose,” which goes far beyond

advertising or proposing a commercial transaction to

include “any activity that could be used to influence

sales or market share of a pharmaceutical product,”

any evaluation of “the prescribing behavior of an

individual health care _ professional,” or any

assessment of “the effectiveness of a professional

pharmaceutical detailing sales force.” N.H. Rev.

Stat. Ann. § 318:47°f. In this connection, the

Petition notes the array of non-marketing uses of

such data, including “trackling] patterns of disease

and treatment, conductling] research and clinical

trials, implementling] best practices, and engagling]

in economic analyses.” Pet. at 17. Given the state’s

expansive conception of commercial speech and the

lower court's analysis, the Court should grant review

to ensure that fully-protected speech is not

“inadvertently suppressed.” Bo/ger, 463 U.S. at 66.

Finally, clarification by this Court of the

definition of commercial speech is long overdue.

Granting review on this issue would address a key

question left open in Nike, Inc. v. Kasky, 539 U.S.

18

654 (2003) (per curiam). The California Supreme

Court had applied the broader definition based on

the speaker's commercial interest, and rejected

Nike’s argument that full First Amendment

protection should have been applied because the

speech at issue directly addressed a matter of public

controversy. Kasky v. Nike, Inc., 27 Cal. 4th 939,

946, 964-68, 119 Cal. Rptr. 2d 296, 45 P.3d 243

(2002). This Court initially granted review to

consider the proper definition of commercial speech

under Central Hudson, but after briefing and

argument, dismissed certiorari as improvidently

granted.’ Nevertheless, no one has ever disputed

the importance of the issue that was left unresolved.

Over thirty amicus briefs were filed in the case, and

a majority agreed that the breadth of the commercial

speech definition and the proper scope of Central

Hudson were important doctrinal issues. that

warranted the Court’s review in a proper case.®

The proper case has now arrived. There is no

question but that the decision below, after a full trial

on the merits, is final. Unfortunately, the ongoing

dispute about the definition of commercial speech,

coupled with the missed opportunity in Nike to

7 In an opinion concurring in the dismissal, Justice

Stevens, joined by Justices Ginsburg and Souter, wrote that

the decision below lacked finality because the California

Supreme Court never entered a final judgment as required

under 28 U.S.C. § 1257, and that the parties lacked standing to

proceed in federal court. Nike, Inc. v. Kasky, 539 U.S. at 657-

63 (Stevens, J., concurring).

8 Justice Stevens wrote that, under the doctrine of

constitutional avoidance, the Court should not decide the

matter prematurely because of “the novelty and importance of

the constitutional questions.” Mike, /nc. v. Kasky, 539 US. at

657-63 (Stevens, J., concurring) (Justice Souter did not join this

part of the opinion). Justice Kennedy dissented from the

dismissal without opinion. /d. at 665. Justice Breyer, joined by

Justice O'Connor, also dissented, and wrote that he “would

apply a form of heightened scrutiny to the speech reguiations

in question.” /d. at 676 (Breyer, J., dissenting)

19

resolve the issue, permitted the First Circuit to add

to the confusion among the circuits. As Justice

Blackmun wrote in another context, “Centra/

Hudson's chickens have come home to roost.”

Discovery Network, 507 U.S. at 436 (Blackmun, J.,

concurring). The Court should use this occasion to

clarify this important area of the law.

CONCLUSION

For the foregoing reasons, amicus ANA

respectfully requests that the Court grant the

petition for certiorari.

Respectfully submitted,

Robert Corn:-Revere

Counsel of Record

DAVIS WRIGHT TREMAINE LLP

1919 Pennsylvania Avenue, NW

Suite 200

Washington, DC 20006

(202) 973-4200

Bruce Johnson

DAVIS WRIGHT TREMAINE LLP

1201 Third Avenue

Suite 2200

Seattle, WA 98101

Terri Keville

DAVIS WRIGHT TREMAINE LLP

865 South Figueroa Street

Suite 2400

Los Angeles, CA 90017

Counsel for Amicus