Sorrell v. IMS Health, 564 U.S. __ (June 23, 2011). In a 6-3 decision written by Justice Kennedy, the Supreme Court affirmed the conclusion of the Second Circuit that Vermont’s law that restricts the sale, disclosure and use of pharmacy records containing prescriber-identifying information violates the First Amendment. The Vermont statute prohibits pharmacies, health insurers and similar entities from selling prescriber-identifying information, or allowing such information to be used for marketing without the consent of the prescriber. The statute also prohibits pharmaceutical companies and marketers from using such information for marketing without the consent of the prescriber. Focusing on certain findings that the legislature made, the majority concluded that these statutory restrictions constitute burdens on speech that are based on the content of the speech and are aimed at a particular viewpoint. Accordingly, the First Amendment (as incorporated into the Fourteenth Amendment and, thus, applicable to the States) requires that the Vermont statute be evaluated under heightened scrutiny. The Court concluded that the Vermont statute fails this test, but noted that it would also fail under the intermediate standard applied to commercial speech under Central Hudson Gas & Electric Corp. V. Public Service Commission of New York, 447 U.S. 557 (1980), and Thompson v. Western States Medical Center, 535 U.S. 373 (2002), that the statute directly advances a substantial government interest and that it is (narrowly) drawn to achieve that interest. In doing so, the Court compares the Vermont statute, which it views “mak[ing] prescriber-identifying information available to an almost limitless audience” (except for “a narrow class of disfavored speakers”) with the HIPAA Privacy Rule, which “allow[s] the information’s sale or disclosure in only a few narrow and well-justified circumstances.” See Slip Op. at 18. Justice Breyer dissented, joined by Justices Ginsburg and Kagan, contending that the statute should survive under the intermediate commercial speech standard. The dissent noted that never before had the Court found that the First Amendment prohibits the government from restricting the use of information gathered pursuant to a regulatory mandate. It also claimed that the Court’s decision threatens significant judicial interference with widely accepted regulatory activity, which the dissent noted often imposes rules that are speaker-based, i.e., are imposed on regulated entities.