The Central Hudson Zombie: For Better Or Worse, Intermediate Tier Review Survives Sorrell v. IMS HealthOleg ShikNOTE - Fordham Intellectual Property, Media & Entertainment Law Journal

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The Central Hudson Zombie: For Better Or Worse, Intermediate Tier Review Survives Sorrell v. IMS Health
Oleg Shik
NOTE

The full text of this Note may be found by clicking the PDF link on the right.

INTRODUCTION

[I]

n the recent and relatively unnoticed Sorrell v. IMS Health, Inc.,^[1] the Supreme Court altered a long-established^[2] standard of commercial speech^[3] jurisprudence. For more than three decades leading up to Sorrell, First Amendment^[4] challenges to state regulation of commercial speech were subject to “intermediate-tier” judicial scrutiny.^[5] The intermediate-tier standard acknowledged that forms of speech proposing a commercial transaction deserved at least some protection against state regulation, albeit secondary in value to core “personal” speech afforded to individuals.^[6] Partly because of its arguably higher “rank” in societal value, core “personal” speech is protected against governmental regulation on a stringent “strict-scrutiny” basis.^[7] The government needs to justify its restriction on personal speech by showing that the restriction has a compelling purpose, and that the regulation is narrowly tailored to achieve that purpose.^[8] Meanwhile, in order to regulate or restrict commercial speech, the government needs only to show that the restriction directly advanced a “substantial” purpose, and, more importantly, that the regulation was not “more extensive than necessary” to serve that purpose.^[9] In theory, this disparate judicial treatment of core and commercial speech persists even after Sorrell: while states seeking to restrict various marketing or advertising techniques need to have a “substantial” reason for doing so, it does not need to be “compelling.”

In practice, however, some have contended that the combination of Sorrell’s new “heightened judicial scrutiny” standard, along with the increasingly business-friendly^[10] ideological makeup of the Court, has pushed the standard towards a de facto strict scrutiny standard.^[11] Critics believe that this is a mistake—there are substantive and important differences between core and commercial speech, and a strict scrutiny standard would blur those differences, in effect demeaning the higher-value personal speech in the process.^[12] Others see no reason for a different standard of scrutiny at all.^[13] Yet the confusion surrounding the new Sorrell standard, along with Justice Kennedy’s own application of Central Hudson, has made lower courts very cautious in abandoning, or even altering, the established intermediate-tier analysis.^[14]

This Note argues that until the Court sets forth a clear standard of analysis for its “heightened judicial scrutiny” language, traditional intermediate-tier review will prevail. Although the court may have, over the years, established a de facto strict scrutiny standard, it has not done so explicitly. Nor have lower courts struck down public health regulations merely due to the fact that the regulations did not pass “heightened judicial scrutiny”; in fact, after Sorrell, the fate of almost every commercial speech restriction evaluated by a lower court has come down to whether it passed Central Hudson, not the new Sorrell standard.^[15] This makes sense. If the Sorrell Court wanted the constitutional inquiry to end upon a determination that a regulation was discriminatory based on content or speakership, it probably would have said so. Instead, Justice Kennedy opted to take a more familiar path and applied the intermediate-tier standard anyway.

Part I of this Note outlines the modern commercial speech doctrine, including the applicability of the Central Hudson standard to public health regulation. Part II will discuss the facts and relatively novel legal standards introduced in Sorrell, as well as provide an analysis of Justice Kennedy’s majority opinion. It will also discuss and analyze Justice Breyer’s intense dissent from Justice Kennedy’s opinion, including his sensitive accusation of the Court wading into Lochner^[16]-era jurisprudence. It will finally summarize how Sorrell has changed, if at all, the evaluation of various public health regulations within the lower courts. Part III will gauge the reaction to Sorrell, and any impact the majority decision may bring to future evaluation of commercial speech regulation. Finally, in Part IV, I will conclude by arguing that in the absence of a clear mandate for strict scrutiny, lower courts should not treat Sorrell’s new “heightened judicial scrutiny” standard as dispositive, and opt instead for the traditional and familiar intermediate-tier analysis.

* Notes and Articles Editor, Fordham Intellectual Property, Media & Entertainment Law Journal, Volume XXV; J.D. Candidate, Fordham University School of Law, 2015; B.A., Johns Hopkins University, 2009. I would like to thank Professor Andrew Sims for his advice and guidance in writing this Note, as well as teaching me everything I know about the First Amendment. I would also like to thank my family and friends for their constant support.

Footnotes[+]

Footnotes
1	131 S. Ct. 2653 (2011).
2	See Jennifer L. Pomeranz, No Need To Break New Ground: A Response To The Supreme Court’s Threat To Overhaul The Commercial Speech Doctrine, 45 Loy. L.A. L. Rev. 389, 394 (2012) (“[I]t would be dangerous to depart from well-established precedent applying intermediate protection to commercial speech . . . .”).
3	Famously defined as speech that does “no more than propose a commercial transaction.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 776 (1976) (Stewart, J., concurring).
4	U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech. . . .”).
5	See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996); Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 475 (1989); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 564 (1980).
6	See generally Pomeranz, supra note 2, at 395. (“[A]t the core of the First Amendment is the protection of ideas and most often takes the form of political and religious speech.”). Professor Pomeranz quotes Justice Breyer: “Because virtually all human interaction takes place through speech, the First Amendment cannot offer all speech the same degree of protection. Rather, judges must apply different protective presumptions in different contexts, scrutinizing government’s speech-related restrictions differently depending upon the general category of activity.” Garcetti v. Ceballos, 547 U.S. 410, 444 (Breyer, J., dissenting); see also Sorrell, 131 S. Ct. at 2674 (Breyer, J., dissenting) (“[O]ur cases make clear that the First Amendment offers considerably less protection to the maintenance of a free marketplace for goods and services.”).
7	The Court’s “strict scrutiny” analysis of governmental action is often heralded as “strict in theory, fatal in fact.” See, e.g., Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for Newer Equal Protection, 81 Harv. L. Rev. 1, 8 (1972).
8	See, e.g., Texas v. Johnson, 491 U.S. 397, 407 (1989) (striking down Texas statute criminalizing the desecration of the American Flag); Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969) (holding that racist political speech by Ku Klux Klan member is protected under the First Amendment).
9	See, e.g., Cent. Hudson, 447 U.S. at 564–66.
10	See Adam Liptak, Pro-Business Decisions Are Defining This Supreme Court, N.Y. Times (May 4, 2013), http://www.nytimes.com/2013/05/05/business/pro-business-decisions-are-defining-this-supreme-court.html?pagewanted=all&_r=0 [http://perma.cc/JU35-WZEX].
11	See, e.g., Samantha Rauer, When The First Amendment and Public Health Collide: The Court’s Increasingly Strict Constitutional Scrutiny of Health Regulations That Restrict Commercial Speech, 38 Am. J. L. & Med. 690, 691 (2012) (“Despite the conceptualization of Central Hudson as an intermediate standard, when examining public health regulations, the Court has been increasingly strict in its level of scrutiny.”)
12	See Pomeranz, supra note 2, at 391–412.
13	See generally Alex Kozinski & Stuart Banner, Who’s Afraid of Commercial Speech?, 76 Va. L. Rev. 627 (1990) (arguing that the distinction between commercial and noncommercial speech does not warrant divergent levels of constitutional protection).
14	See infra notes 100–04.
15	Id.
16	See Lochner v. New York, 198 U.S. 45 (1905).

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The Central Hudson Zombie: For Better Or Worse, Intermediate Tier Review Survives Sorrell v. IMS Health
Oleg Shik
NOTE

INTRODUCTION

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Vol 25 Book 2

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