Sorrell & Dex Media

In 2011, the Supreme Court came tantalizingly close to addressing the issue of whether non-advertising material can ever be commercial speech in the case of Sorrell v. IMS Health.[ref]Sorrell v. IMS Health, 131 S. Ct. 2653 (2011).[/ref]

Sorrell involved a Vermont law that prohibited the sale, disclosure and use of pharmacy records reflecting the prescribing practices of physicians.  Such records enable pharmaceutical companies to more effectively target their marketing.

They also enable a level of suasion that the people of Vermont found unsettling.

But here’s the thing: the pharmacy records, unlike the marketing done by the drug companies, isn’t advertising.  It’s just dry compilations of facts – the names of doctors and the medications they prescribe.  Would the court treat such non-advertising material, when employed for business development purposes, as commercial speech?

Unfortunately, the court once again dodged the question, finding that Vermont’s law failed on first amendment grounds “whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied.”[ref]131 S.Ct. at 2667.[/ref]  

However, the Sorrell Court did offer two helpful new wrinkles when examining this type of speech regulation: First, if a speech regulation is both content- and speaker-based (meaning it restricts the expression of only a certain class of speakers) it is presumptively invalid.  And secondly, that attempts to regulate otherwise-truthful speech are particularly suspect. An increasing number of lower courts are taking this to mean that Sorrell stands for a heightened form of review somewhere between intermediate and strict scrutiny when this latter type of regulation is involved.[ref]See, e.g., Retail Digital Network v. Appelsmith ___ F.3rd ____ (9th Cir. 2016) – see discussion beginning on page 15.[/ref]

Questions such as those raised by Sorrell don’t reach the Supreme Court with a great degree of frequency, so it may be some time before we have another opportunity to address whether non-advertising communications can ever be commercial speech.   However, the Ninth Circuit recently grappled with this issue in some detail.

Dex Media v. City of of Seattle[ref]Dex Media v. City of Seattle, 696 F.3d 952 (9th Cir. 2012).[/ref] involved that bane of recyclers everywhere – the Yellow Pages.  After Seattle adopted an “opt out” program for residents, the Yellow Pages providers sued on First Amendment grounds.  The 9th Circuit, relying on the test from Bolger, found that the Yellow Pages were not commercial speech as they were not in an advertising format and did not promote a specific product.  While any ad within the directory would clearly be commercial speech, the directories themselves – featuring a compilation of advertisements and editorial pages such as community guides and lists of government services – were not.

The Ninth Circuit decision in Dex Media reinforces the concept that the lesser standard for commercial speech regulation is narrowly limited to out-and-out advertising.  But in California, at least, it conflicts with the more expansive test employed in Kasky v. Nike.