In IMS Health the Court struck down a Vermont statute that banned the sale or disclosure by pharmacies of information regarding the prescribing habits of physicians, if that information was going to be used for the purposes of marketing by pharmaceutical manufacturers.
Bhagwat indicates that
I consider here an important issue that was raised, discussed, but ultimately avoided in IMS Health: what restrictions does the First Amendment place on the government’s ability to limit or prohibit the disclosure of pure data, in order to protect personal privacy. The issue could be avoided in IMS Health because the specific Vermont statute at issue in that case did not, as it happens, impose a general restriction on data disclosure for privacy reasons, it rather only restricted specific uses of regulated data, in order to advance state interests quite distinct from privacy concerns. The broader question of data regulation, however, is lurking in the wings of this and other litigation, and is likely to pose difficult challenges for courts in coming years, as the spread of the Internet drives legislatures to adopt increasingly stringent privacy laws.
While the IMS Health majority did not decide the data-disclosure issue posed in the case, it did address it in ways that strongly suggest the six justices in the majority would treat such disclosures as fully protected speech. Moreover, the analysis provided in this article demonstrates that the majority’s hints are fully justified by current Supreme Court doctrine. As currently interpreted by the Court, the First Amendment provides full constitutional protection to disclosures of even personal data, and so restrictions on such disclosures must survive strict scrutiny, a standard that has proven almost impossible to satisfy in the First Amendment context. As a consequence, under current law most statutes seeking to protect privacy by prohibiting data disclosure are likely to be invalidated.
In the balance of the article, I suggest that this result reflects a serious weakness in current doctrine, which is the failure to recognize that factual speech is distinct from, and requires different constitutional analysis than, the sorts of political and cultural speech that have traditionally been the mainstay of First Amendment litigation. In particular, drawing on a number of areas of developed law, I argue that speech consisting purely of specific factual data regarding individuals should be considered to be fully protected under the First Amendment only if the speech meaningfully contributes to the process of democratic self-governance. Other data should remain protected, but under a lower standard of scrutiny, perhaps an intermediate standard incorporating an element of balancing. I also briefly explore how different kinds of privacy laws might fare under such an approach.