Monday, June 27, 2011

Medical Prescription Data Mining Case Decided by US Supreme Court in Favor of Pharmaceutical Industry as Corporate Free Speech: Sorrell v. IMS Health

The pharmaceutical data-mining case Sorrell v. IMS Health Inc. has been decided by the U.S. Supreme Court 6-3 in favor of the pharmaceutical companies, and correctly so in our opinion.

We posted about this case thrice previously at LawPundit (see the links below), concluding that the corporate free speech issue was quite clear as a Constitutional matter, with some potential problems at the privacy rights level, which were, however, not the central legal issues before the Supremes.

The decision was 6-3 with Justice Kennedy writing the majority opinion for the six Roman Catholic Justices, with the three Jewish Justices Breyer, Ginsburg and Kagan dissenting.

Lyle Denniston at ScotusBlog wrote aptly that a comparison of the majority and minority points of view was "[l]ike ships passing in the night…", commenting:
Summing up, Kennedy said at the end of his opinion: “The state has burdened a form of protected expression that it found too persuasive.  At the same time, the state has left unburdened those speakers whose messages are in accord with its own views.  This the state cannot do.”

Along the way, the majority opinion did hint, briefly, at the possibility that new computer-based methods of gathering and sorting information — such as the process known as “data-mining” — present “serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure.”  But, without addressing itself any of those issues lurking in the background, Kennedy wrote: “In considering how to protect those interests,…the state cannot engage in content-based discrimination to advance its own side of a debate.”
See our previous LawPundit posts about this case at:

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