The War Against the First Amendment

By John McClaughry

John McClaughry

Gov. Peter Shumlin has cast himself in a new role: enemy of the First Amendment that protects everyone’s freedom of speech.

The occasion for this new Shumlin crusade was the June 24 ruling of the U.S. Supreme Court, invalidating Vermont’s pharmaceutical data mining legislation. That legislation, enacted while Shumlin was Senate president pro tem, sought to prohibit the collection and sale of data on physician’s prescription practices.

Data mining companies buy data from pharmacies to learn what doctors are prescribing for their patients. Pharmaceutical companies buy the reports to learn which doctors are prescribing their company products, and which are not. Then the company’s sales reps can make their pitches to the doctors to prescribe more of their product. No patient’s name or other identifying information is collected. The focus is on prescriptions, not patients.

The data mining companies also sell their reports to research institutions and governments. That didn’t concern the Shumlin-led Vermont legislature. Its real concern was that the availability of the prescription data eventually resulted in doctors prescribing more brand name drugs instead of lower priced generics.

Since the largest single item in the state’s general fund budget is Medicaid, the liberal legislature decided that by preventing data miners from selling prescription information to certain disfavored people – pharmaceutical companies – it could curb Medicaid’s drug expenditures.

Enactment of the law was accompanied by derisive attacks on the evil pharma companies. These bad boys are a “multi-billion dollar industry” (Shumlin, in his recent commentary on the case.) They are unworthy! The First Amendment protects only people with correct ideas (like us)!

The appeals court didn’t buy that, and neither did the Supremes. By a 6-3 vote, with liberal justice Sonia Sotomayor joining five conservatives, the Court once again held that legislatures cannot exclude certain parties from First Amendment protection just because a legislative majority disapproves of those parties’ opinions or use of information. “The fear that people would make bad decisions if given truthful information”, the Court held, “cannot justify content-based burdens on speech.”

Sens. Patrick Leahy and Bernie Sanders joined Shumlin in the liberal chorus of denunciation. Leahy charged that the Court was “using the First Amendment as a tool to bolster the rights of big business at the expense of individual Americans.” Sanders, with his usual flair for the ridiculous, said “it’s an absurd ruling”, and, falsely, “an invasion of my privacy and my relationship with my doctor.”

Contrary to the Shumlin theory, the legal issue is not whether the pharma companies are worthy, or whether their use of information increases the state’s Medicaid costs. The legal issue is governmental denial of access to information to certain individuals, companies, and associations disfavored by certain politicians. That is a constitutional no-no, and friends of the Bill of Rights should rejoice that a majority of the Court is its defender.

In his commentary Shumlin also indicts the Supreme Court for its ruling in another First Amendment case, Citizens United (2010). In that case a nonprofit corporation sought to publicly distribute a documentary film designed to cripple the presidential candidacy of Sen. Hillary Clinton. Congress had enacted a law in 2002 that made it a felony for a corporation, labor union, or citizen’s association to make independent expenditures to influence approaching elections. The Citizens United Court overturned that part of the law because it violated the First Amendment: “the government may not suppress political speech based on the speaker’s corporate identity.”

In Shumlin’s view, that sinister ruling “opened the door for corporations to manipulate our elections.” He neglected to observe that the ruling equally protects political speech by the Vermont-NEA, Planned Parenthood, the Sierra Club, Vermont Health Care for All, the Vermont Workers Center, and VPIRG. Those liberal organizations may now buy radio spots and send out mailings supporting the reelection of, say, Sen. Sanders, without fear of prosecution .

The Citizens United case left untouched the long-standing federal law prohibiting corporations from donating money to candidates’ campaigns for Congress or the Presidency. But it remains perfectly legal for candidates for state office in Vermont to receive contributions directly from corporations.

Surely Peter Shumlin is well aware of this, since his campaign finance reports list dozens of contributions from corporations bent on “manipulating elections” to his political benefit.

Today’s misnamed “liberals” are all too often willing to stifle speech that threatens their political interests. The First Amendment, fortunately, still stands in their way.

John McClaughry is vice president of the Ethan Allen Institute.