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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0336%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0336%3A07. Public record. Not legal advice.