OPINION OF THE COURT SORRELL V. IMS HEALTH INC. 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 10-779 WILLIAM H. SORRELL, ATTORNEY GENERAL OF VERMONT,
et al., PETITIONERS v. IMS HEALTH INC.
et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[June 23, 2011]

															   Justice Kennedy delivered the
opinion of the Court.

															   Vermont law restricts the sale,
disclosure, and use of pharmacy records that reveal the prescribing
practices of individual doctors. Vt. Stat. Ann., Tit. 18, §4631
(Supp. 2010). Subject to certain exceptions, the information may
not be sold, disclosed by pharmacies for marketing purposes, or
used for marketing by pharmaceutical manufacturers. Vermont argues
that its prohibitions safeguard medical privacy and diminish the
likelihood that marketing will lead to prescription decisions not
in the best interests of patients or the State. It can be assumed
that these interests are significant. Speech in aid of
pharmaceutical marketing, however, is a form of expression
protected by the Free Speech Clause of the First Amendment. As a
consequence, Vermont’s statute must be subjected to heightened
judicial scrutiny. The law cannot satisfy that standard.

															I

															A

															   Pharmaceutical manufacturers
promote their drugs to doctors through a process called
“detailing.” This often in- volves a scheduled visit to a doctor’s
office to persuade the doctor to prescribe a particular
pharmaceutical. Detailers bring drug samples as well as medical
studies that explain the “details” and potential advantages of
various prescription drugs. Interested physicians listen, ask
questions, and receive followup data. Salespersons can be more
effective when they know the background and purchasing preferences
of their clientele, and pharmaceutical salespersons are no
exception. Knowledge of a physi- cian’s prescription
practices—called “prescriber-identifying information”—enables a
detailer better to ascertain which doctors are likely to be
interested in a particular drug and how best to present a
particular sales message. Detailing is an expensive undertaking, so
pharmaceutical companies most often use it to promote high-profit
brand-name drugs protected by patent. Once a brand-name drug’s
patent expires, less expensive bioequivalent generic alternatives
are manufactured and sold.

															   Pharmacies, as a matter of
business routine and federal law, receive prescriber-identifying
information when processing prescriptions. See 21 U. S. C.
§353(b); see also Vt. Bd. of Pharmacy Admin. Rule 9.1 (2009); Rule
9.2. Many pharmacies sell this information to “data miners,” firms
that analyze prescriber-identifying information and produce reports
on prescriber behavior. Data miners lease these reports to
pharmaceutical manufacturers subject to nondisclosure agreements.
Detailers, who represent the manufacturers, then use the reports to
refine their marketing tactics and increase sales.

															   In 2007, Vermont enacted the Prescription
Confidentiality Law. The measure is also referred to as Act 80. It
has several components. The central provision of the present case
is §4631(d).

															“A health insurer, a self-insured employer, an
electronic transmission intermediary, a pharmacy, or other similar
entity shall not sell, license, or exchange for value regulated
records containing prescriber-identifiable information, nor permit
the use of regulated records containing prescriber-identifiable
information for marketing or promoting a prescription drug, unless
the prescriber consents … . Pharmaceutical manufacturers
and pharmaceutical marketers shall not use prescriber-identifiable
information for marketing or promoting a prescription drug unless
the prescriber consents … .”

															The quoted provision has three component parts. The
provision begins by prohibiting pharmacies, health insurers, and
similar entities from selling prescriber-identifying information,
absent the prescriber’s consent. The parties here dispute whether
this clause applies to all sales or only to sales for marketing.
The provision then goes on to prohibit pharmacies, health insurers,
and similar enti- ties from allowing prescriber-identifying
information to be used for marketing, unless the prescriber
consents. This prohibition in effect bars pharmacies from
disclosing the information for marketing purposes. Finally, the
provision’s second sentence bars pharmaceutical manufacturers and
pharmaceutical marketers from using prescriber-identifying
information for marketing, again absent the prescriber’s consent.
The Vermont attorney general may pursue civil remedies against
violators. §4631(f).

															   Separate statutory provisions elaborate the
scope of the prohibitions set out in §4631(d). “Marketing” is
defined to include “advertising, promotion, or any activity” that
is “used to influence sales or the market share of a prescription
drug.” §4631(b)(5). Section 4631(c)(1) further provides that
Vermont’s Department of Health must allow “a prescriber to give
consent for his or her identifying information to be used for the
purposes” identified in §4631(d). Finally, the Act’s prohibitions
on sale, disclosure, and use are subject to a list of exceptions.
For example, prescriber-identifying information may be disseminated
or used for “health care research”; to enforce “compliance” with
health insurance formularies, or preferred drug lists; for “care
management educational communications provided to” patients on such
matters as “treatment options”; for law enforcement operations; and
for purposes “otherwise provided by law.” §4631(e).

															   Act 80 also authorized funds for an
“evidence-based pre-scription drug education program” designed to
provide doctors and others with “information and education on the
therapeutic and cost-effective utilization of prescription drugs.”
§4622(a)(1). An express aim of the program is to advise prescribers
“about commonly used brand-name drugs for which the patent has
expired” or will soon expire. §4622(a)(2). Similar efforts to
promote the use of generic pharmaceuticals are sometimes referred
to as “counter-detailing.” App. 211; see also IMS Health
Inc. v. Ayotte , 550 F. 3d 42, 91 (CA1 2008)
(Lipez, J., concurring and dissenting). The counterdetailer’s
recommended substitute may be an older, less expensive drug and not
a bioequivalent of the brand-name drug the physician might
otherwise prescribe. Like the pharmaceutical manufacturers whose
efforts they hope to resist, counterdetailers in some States use
prescriber-identifying information to increase their effectiveness.
States themselves may supply the prescriber-identifying information
used in these programs. See App. 313; id. , at 375 (“[W]e
use the data given to us by the State of Pennsylvania … to
figure out which physicians to talk to”); see also id ., at
427–429 (Director of the Office of Vermont Health Access explaining
that the office collects prescriber-identifying information but
“does not at this point in time have a counterdetailing or
detailing effort”). As first enacted, Act 80 also required
detailers to provide information about alternative treatment
options. The Vermont Legislature, however, later repealed that
provision. 2008 Vt. Laws No. 89, §3.

															   Act 80 was accompanied by legislative
findings. Vt. Acts No. 80, §1. Vermont found, for example, that the
“goals of marketing programs are often in conflict with the goals
of the state” and that the “marketplace for ideas on medicine
safety and effectiveness is frequently one-sided in that brand-name
companies invest in expensive pharmaceutical marketing campaigns to
doctors.” §§1(3), (4). Detailing, in the legislature’s view, caused
doctors to make decisions based on “incomplete and biased
information.” §1(4). Because they “are unable to take the time to
research the quickly changing pharmaceutical market,” Vermont
doctors “rely on information provided by pharmaceutical
representatives.” §1(13). The legislature further found that
detailing increases the cost of health care and health insurance,
§1(15); encourages hasty and excessive reliance on brand-name
drugs, before the profession has observed their effectiveness as
compared with older and less expensive generic alternatives, §1(7);
and fosters disruptive and repeated marketing visits tantamount to
harassment, §§1(27)–(28). The legislative findings further noted
that use of prescriber-identifying information “increase[s] the
effect of detailing programs” by allowing detailers to target their
visits to particular doctors. §§1(23)–(26). Use of
prescriber-identifying data also helps detailers shape their
messages by “tailoring” their “presentations to individual
prescriber styles, preferences, and attitudes.” §1(25).

															B

															   The present case involves two
consolidated suits. One was brought by three Vermont data miners,
the other by an association of pharmaceutical manufacturers that
produce brand-name drugs. These entities are the respondents here.
Contending that §4631(d) violates their First Amendment rights as
incorporated by the Fourteenth Amendment, the respondents sought
declaratory and injunctive relief against the petitioners, the
Attorney General and other officials of the State of Vermont.

															   After a bench trial, the United
States District Court for the District of Vermont denied relief.
631 F. Supp. 2d 434 (2009). The District Court found that
“[p]harmaceutical manufacturers are essentially the only paying
customers of the data vendor industry” and that, because detailing
unpatented generic drugs is not “cost-effective,” pharmaceutical
sales representatives “detail only branded drugs.” Id ., at
451, 442. As the District Court further con- cluded, “the
Legislature’s determination that [prescriber-identifying] data is
an effective marketing tool that enables detailers to increase
sales of new drugs is supported in the record.” Id ., at
451. The United States Court of Appeals for the Second Circuit
reversed and remanded. It held that §4631(d) violates the First
Amendment by burdening the speech of pharmaceutical marketers and
data miners without an adequate justification. 630 F. 3d 263.
Judge Livingston dissented.

															   The decision of the Second Circuit is in
conflict with de- cisions of the United States Court of Appeals for
the First Circuit concerning similar legislation enacted by Maine
and New Hampshire. See IMS Health Inc. v. Mills ,
616 F. 3d 7 (CA1 2010) (Maine); Ayotte , supra (New Hamp- shire). Recognizing a division of
authority regarding the constitutionality of state statutes, this
Court granted certiorari. 562 U. S. __ (2011).

															II

															   The beginning point is the text
of §4631(d). In the pro- ceedings below, Vermont stated that the
first sentence of §4631(d) prohibits pharmacies and other regulated
entities from selling or disseminating prescriber-identifying
information for marketing. The information, in other words, could
be sold or given away for purposes other than marketing. The
District Court and the Court of Appeals accepted the State’s
reading. See 630 F. 3d, at 276. At oral argument in this
Court, however, the State for the first time advanced an
alternative reading of §4631(d)—namely, that pharmacies, health
insurers, and similar entities may not sell prescriber-identifying
information for any purpose, subject to the statutory exceptions
set out at §4631(e). See Tr. of Oral Arg. 19–20. It might be argued
that the State’s newfound interpretation comes too late in the day.
See Sprietsma v. Mercury Marine , 537 U. S. 51 , 56,
n. 4 (2002) (waiver); New Hampshire v. Maine , 532
U. S. 742 , 749 (2001) (judicial estoppel). The respondents, the
District Court, and the Court of Appeals were entitled to rely on
the State’s plausible interpretation of the law it is charged with
enforcing. For the State to change its position is particularly
troubling in a First Amendment case, where plaintiffs have a
special interest in obtaining a prompt adjudication of their
rights, despite potential ambiguities of state law. See Houston v. Hill , 482 U. S. 451 , 467–468,
and n. 17 (1987); Zwickler v. Koota , 389 U. S. 241 ,
252 (1967).

															   In any event, §4631(d) cannot be
sustained even under the interpretation the State now adopts. As a
consequence this Court can assume that the opening clause of
§4631(d) prohibits pharmacies, health insurers, and similar
entities from selling prescriber-identifying information, subject
to the statutory exceptions set out at §4631(e). Under that
reading, pharmacies may sell the information to private or academic
researchers, see §4631(e)(1), but not, for example, to
pharmaceutical marketers. There is no dispute as to the remainder
of §4631(d). It prohibits pharmacies, health insurers, and similar
entities from disclosing or otherwise allowing
prescriber-identifying information to be used for marketing. And it
bars pharmaceutical manufacturers and detailers from using the
information for marketing. The questions now are whether §4631(d)
must be tested by heightened judicial scrutiny and, if so, whether
the State can justify the law.

															A

															1

															   On its face, Vermont’s law enacts
content- and speaker-based restrictions on the sale, disclosure,
and use of prescriber-identifying information. The provision first
forbids sale subject to exceptions based in large part on the
content of a purchaser’s speech. For example, those who wish to
engage in certain “educational communications,” §4631(e)(4), may
purchase the information. The measure then bars any disclosure when
recipient speakers will use the information for marketing. Finally,
the provision’s second sentence prohibits pharmaceutical
manufacturers from using the information for marketing. The statute
thus disfavors marketing, that is, speech with a particular
content. More than that, the statute disfavors specific speakers,
namely pharmaceutical manufacturers. As a result of these content-
and speaker-based rules, detailers cannot obtain
prescriber-identifying information, even though the information may
be purchased or acquired by other speakers with diverse purposes
and viewpoints. Detailers are likewise barred from using the
information for marketing, even though the information may be used
by a wide range of other speakers. For example, it appears that
Vermont could supply academic organizations with
prescriber-identifying information to use in countering the
messages of brand-name pharmaceutical manufacturers and in
promoting the prescription of generic drugs. But §4631(d) leaves
detailers no means of purchasing, acquiring, or using
prescriber-identifying information. The law on its face burdens
disfavored speech by disfavored speakers.

															   Any doubt that §4631(d) imposes
an aimed, content-based burden on detailers is dispelled by the
record and by formal legislative findings. As the District Court
noted, “[p]harmaceutical manufacturers are essentially the only
paying customers of the data vendor industry”; and the almost
invariable rule is that detailing by pharmaceutical manufacturers
is in support of brand-name drugs. 631 F. Supp. 2d, at 451.
Vermont’s law thus has the effect of preventing detailers—and only
detailers—from communicating with physicians in an effective and
informative manner. Cf. Edenfield v. Fane , 507 U. S. 761 ,
766 (1993) (explaining the “considerable value” of in-person
solicitation). Formal legislative findings accompanying §4631(d)
confirm that the law’s express purpose and practical effect are to
diminish the effectiveness of marketing by manufacturers of
brand-name drugs. Just as the “inevitable effect of a statute on
its face may render it unconstitutional,” a statute’s stated
purposes may also be considered. United States v. O’Brien , 391 U. S. 367 , 384
(1968). Here, the Vermont Legislature explained that detailers, in
particular those who promote brand-name drugs, convey messages that
“are often in conflict with the goals of the state.” 2007 Vt. No.
80, §1(3). The legislature designed §4631(d) to target those
speakers and their messages for disfavored treatment. “In its
practical operation,” Vermont’s law “goes even beyond mere content
discrimination, to actual viewpoint discrimination.” R. A. V. v. St. Paul , 505 U. S. 377 ,
391 (1992). Given the legislature’s expressed statement of purpose,
it is apparent that §4631(d) imposes burdens that are based on the
content of speech and that are aimed at a particular viewpoint.

															   Act 80 is designed to impose a specific,
content-based burden on protected expression. It follows that
heightened judicial scrutiny is warranted. See Cincinnati v. Discovery Network, Inc. , 507 U. S. 410 , 418
(1993) (applying heightened scrutiny to “a categorical prohibition
on the use of newsracks to disseminate commercial messages”); id ., at 429 (“[T]he very basis for the regulation is the
difference in content between ordinary newspapers and commercial
speech” in the form of “commercial handbills … . Thus, by
any commonsense understanding of the term, the ban in this case is
‘content based’ ” (some internal quotation marks omitted));
see also Turner Broadcasting System, Inc. v. FCC , 512 U. S. 622 ,
658 (1994) (explaining that strict scrutiny applies to regulations
reflecting “aversion” to what “disfavored speakers” have to say).
The Court has recognized that the “distinction between laws
burdening and laws banning speech is but a matter of degree” and
that the “Government’s content-based burdens must satisfy the same
rigorous scrutiny as its content-based bans.” United
States v. Playboy Entertainment Group, Inc. , 529 U. S. 803 , 812
(2000). Lawmakers may no more silence unwanted speech by burdening
its utterance than by censoring its content. See Simon &
Schuster, Inc. v. Mem- bers of N. Y. State Crime Victims
Bd. , 502 U. S.
105 , 115 (1991) (content-based financial burden); Minneapolis Star & Tribune Co. v. Minnesota Comm’r
of Revenue , 460 U. S. 575 (1983) (speaker-based
financial burden).

															   The First Amendment requires heightened
scrutiny whenever the government creates “a regulation of speech
because of disagreement with the message it conveys.” Ward v. Rock Against Racism , 491 U. S. 781 , 791
(1989); see also Renton v. Playtime Theatres,
Inc. , 475 U. S.
41 , 48 (1986) (explaining that “ ‘content-neutral’ speech
regulations” are “those that are justified without
reference to the content of the regulated speech” (internal
quotation marks omitted)). A government bent on frustrating an
impending demonstration might pass a law demanding two years’
notice before the issuance of parade permits. Even if the
hypothetical measure on its face appeared neutral as to content and
speaker, its purpose to suppress speech and its unjustified burdens
on expression would render it unconstitutional. Ibid. Commercial speech is no exception. See Discovery Network , supra , at 429–430 (commercial speech restriction lacking a
“neutral justification” was not content neutral). A “consumer’s
concern for the free flow of commercial speech often may be far
keener than his concern for urgent political dialogue.” Bates v. State Bar of Ariz. , 433 U. S. 350 , 364
(1977). That reality has great relevance in the fields of medicine
and public health, where information can save lives.

															2

															   The State argues that heightened
judicial scrutiny is unwarranted because its law is a mere
commercial regulation. It is true that restrictions on protected
expression are distinct from restrictions on economic activity or,
more generally, on nonexpressive conduct. It is also true that the
First Amendment does not prevent restrictions directed at commerce
or conduct from imposing inciden- tal burdens on speech. That is
why a ban on race-based hiring may require employers to remove
“ ‘White Applicants Only’ ” signs, Rumsfeld v. Forum for Academic and Institutional Rights, Inc. , 547 U. S. 47 , 62
(2006); why “an ordinance against outdoor fires” might forbid
“burning a flag,” R. A. V. , supra , at
385; and why antitrust laws can prohibit “agreements in restraint
of trade,” Giboney v. Empire Storage & Ice
Co. , 336 U. S.
490 , 502 (1949).

															   But §4631(d) imposes more than an
incidental burden on protected expression. Both on its face and in
its practical operation, Vermont’s law imposes a burden based on
the content of speech and the identity of the speaker. See supra , at 8–11. While the burdened speech results from an
economic motive, so too does a great deal of vital expression. See Bigelow v. Virginia , 421 U. S. 809 , 818
(1975); New York Times Co. v. Sullivan , 376 U. S. 254 , 266
(1964); see also United States v. United Foods,
Inc. , 533 U. S.
405 , 410–411 (2001) (applying “First Amendment scrutiny” where
speech effects were not incidental and noting that “those whose
business and livelihood depend in some way upon the product
involved no doubt deem First Amendment protection to be just as
important for them as it is for other discrete, little noticed
groups”). Vermont’s law does not simply have an effect on speech,
but is directed at certain content and is aimed at particular
speakers. The Constitution “does not enact Mr. Herbert Spencer’s
Social Statics.” Lochner v. New York , 198 U. S. 45 , 75 (1905)
(Holmes, J., dissenting). It does enact the First Amendment.

															   Vermont further argues that §4631(d) regulates
not speech but simply access to information. Prescriber-identifying
information was generated in compliance with a legal mandate, the
State argues, and so could be considered a kind of governmental
information. This argument finds some support in Los Angeles
Police Dept. v. United Reporting Publishing Corp. , 528 U. S. 32 (1999), where the Court held that a plaintiff could not raise a
facial challenge to a content-based restriction on access to
government- held information. Because no private party faced a
threat of legal punishment, the Court characterized the law at
issue as “nothing more than a governmental denial of access to
information in its possession.” Id ., at 40. Under those
circumstances the special reasons for permitting First Amendment
plaintiffs to invoke the rights of others did not apply. Id. , at 38–39. Having found that the plaintiff could not
raise a facial challenge, the Court remanded for consideration of
an as-applied challenge. Id ., at 41. United
Reporting is thus a case about the availability of facial
challenges. The Court did not rule on the merits of any First
Amendment claim. United Reporting is distinguishable
in at least two respects. First, Vermont has imposed a restriction
on access to information in private hands. This confronts the Court
with a point reserved, and a situation not addressed, in United
Reporting . Here, unlike in United Reporting , we do
have “a case in which the government is prohibiting a speaker from
conveying information that the speaker already possesses.” Id ., at 40. The difference is significant. An individual’s
right to speak is implicated when information he or she possesses
is subjected to “restraints on the way in which the information
might be used” or disseminated. Seattle Times Co. v. Rhinehart , 467 U. S. 20 , 32 (1984);
see also Bartnicki v. Vopper , 532 U. S. 514 , 527
(2001); Florida Star v. B. J. F. , 491 U. S. 524 (1989); New York Times Co. v. United States , 403 U. S. 713 (1971) (per curiam) . In Seattle Times , this Court
applied heightened judicial scrutiny before sustaining a trial
court order prohibiting a newspaper’s disclosure of information it
learned through coercive discovery. It is true that the respondents
here, unlike the newspaper in Seattle Times , do not
themselves possess information whose disclosure has been curtailed.
That information, however, is in the hands of pharmacies and other
private entities. There is no question that the “threat of
prosecution … hangs over their heads.” United Reporting ,
528 U. S., at 41. For that reason United Reporting does
not bar respondents’ facial challenge. United Reporting is distinguishable
for a second and even more important reason. The plaintiff in United Reporting had neither “attempt[ed] to qualify” for
access to the government’s information nor presented an as-applied
claim in this Court. Id ., at 40. As a result, the Court
assumed that the plaintiff had not suffered a personal First
Amendment injury and could prevail only by invoking the rights of
others through a facial challenge. Here, by contrast, the
respondents claim—with good reason—that §4631(d) burdens their own
speech. That argument finds support in the separate writings in United Reporting , which were joined by eight Justices. All
of those writings recognized that restrictions on the disclosure of
government-held information can facilitate or burden the expression
of potential recipients and so transgress the First Amendment. See id ., at 42 (Scalia, J., concurring) (suggesting that “a
restriction upon access that allows access to the press …
but at the same time denies access to persons who wish to
use the information for certain speech purposes, is in reality a
restriction upon speech”); id. , at 43 (Ginsburg, J.,
concurring) (noting that “the provision of [government] information
is a kind of subsidy to people who wish to speak” about certain
subjects, “and once a State decides to make such a benefit
available to the public, there are no doubt limits to its freedom
to decide how that benefit will be distributed”); id ., at
46 (Stevens, J., dissenting) (concluding that, “because the State’s
discrimination is based on its desire to prevent the information
from being used for constitutionally protected purposes, [i]t must
assume the burden of justifying its conduct”). Vermont’s law
imposes a content- and speaker-based burden on respondents’ own
speech. That consideration provides a separate basis for
distinguishing United Reporting and requires heightened
judicial scrutiny.

															   The State also contends that heightened
judicial scrutiny is unwarranted in this case because sales,
transfer, and use of prescriber-identifying information are
conduct, not speech. Consistent with that submission, the United
States Court of Appeals for the First Circuit has characterized
prescriber-identifying information as a mere “commodity” with no
greater entitlement to First Amend- ment protection than “beef
jerky.” Ayotte , 550 F. 3d, at 52–53. In contrast the
courts below concluded that a prohibition on the sale of
prescriber-identifying information is a content-based rule akin to
a ban on the sale of cookbooks, laboratory results, or train
schedules. See 630 F. 3d, at 271–272 (“The First Amendment
protects even dry information, devoid of advocacy, political
relevance, or artistic expression” (internal quotation marks and
alteration omitted)); 631 F. Supp. 2d, at 445 (“A restriction
on disclosure is a regulation of speech, and the ‘sale’ of
[information] is simply disclosure for profit”).

															   This Court has held that the creation and
dissemination of information are speech within the meaning of the
First Amendment. See, e.g. , Bartnicki , supra , at 527 (“[I]f the acts of ‘disclosing’ and
‘publishing’ information do not constitute speech, it is hard to
imagine what does fall within that category, as distinct from the
category of expressive conduct” (some internal quotation marks
omitted)); Rubin v. Coors Brewing Co. , 514 U. S. 476 , 481
(1995) (“information on beer labels” is speech); Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc. , 472 U. S. 749 ,
759 (1985) (plurality opinion) (credit report is “speech”). Facts,
after all, are the beginning point for much of the speech that is
most essential to advance human knowledge and to conduct human
affairs. There is thus a strong argument that
prescriber-identifying information is speech for First Amendment
purposes.

															   The State asks for an exception to the rule
that information is speech, but there is no need to consider that
request in this case. The State has imposed content- and
speaker-based restrictions on the availability and use of
prescriber-identifying information. So long as they do not engage
in marketing, many speakers can obtain and use the information. But
detailers cannot. Vermont’s statute could be compared with a law
prohibiting trade magazines from purchasing or using ink. Cf. Minneapolis Star , 460 U. S. 575 . Like that hypothetical
law, §4631(d) imposes a speaker- and content-based burden on
protected expression, and that circumstance is sufficient to
justify application of heightened scrutiny. As a consequence, this
case can be resolved even assuming, as the State argues, that
prescriber-identifying information is a mere commodity.

															B

															   In the ordinary case it is all
but dispositive to conclude that a law is content-based and, in
practice, viewpoint-discriminatory. See R. A. V. , 505 U. S., at 382 (“Content-based
regulations are presumptively invalid”); id. , at 391–392.
The State argues that a different analysis applies here because,
assuming §4631(d) burdens speech at all, it at most burdens only
commercial speech. As in previous cases, however, the outcome is
the same whether a special commercial speech inquiry or a stricter
form of judicial scrutiny is applied. See, e.g. , Greater New Orleans Broadcasting Assn., Inc. v. United
States , 527 U.
S. 173 , 184 (1999). For the same reason there is no need to
determine whether all speech hampered by §4631(d) is commercial, as
our cases have used that term. Cf. Board of Trustees of State
Univ. of N. Y. v. Fox , 492 U. S. 469 , 474
(1989) (discussing whether “pure speech and commercial speech” were
inextricably intertwined, so that “the entirety must … be
classified as noncommercial”).

															   Under a commercial speech
inquiry, it is the State’s burden to justify its content-based law
as consistent with the First Amendment. Thompson v. Western States Medical Center , 535 U. S. 357 , 373
(2002). To sustain the targeted, content-based burden §4631(d)
imposes on protected expression, the State must show at least that
the statute directly advances a substantial governmental interest
and that the measure is drawn to achieve that interest. See Fox , supra , at 480–481; Central Hudson Gas
& Elec. Corp. v. Public Serv. Comm’n of
N. Y. , 447
U. S. 557 , 566 (1980). There must be a “fit between the
legislature’s ends and the means chosen to accomplish those ends.” Fox , supra , at 480 (internal quotation marks
omitted). As in other contexts, these standards ensure not only
that the State’s interests are proportional to the result- ing
burdens placed on speech but also that the law does not seek to
suppress a disfavored message. See Turner Broadcasting ,
512 U. S., at 662–663.

															   The State’s asserted justifications for
§4631(d) come under two general headings. First, the State contends
that its law is necessary to protect medical privacy, including
physician confidentiality, avoidance of harassment, and the
integrity of the doctor-patient relationship. Second, the State
argues that §4631(d) is integral to the achievement of policy
objectives—namely, improved public health and reduced healthcare
costs. Neither justification withstands scrutiny.

															1

															   Vermont argues that its
physicians have a “reasonable expectation” that their
prescriber-identifying information “will not be used for purposes
other than … filling and processing” prescriptions. See 2007 Vt.
Laws No. 80, §1(29). It may be assumed that, for many reasons,
physicians have an interest in keeping their prescription decisions
confidential. But §4631(d) is not drawn to serve that interest.
Under Vermont’s law, pharmacies may share prescriber-identifying
information with anyone for any rea- son save one: They must not
allow the information to be used for marketing. Exceptions further
allow pharmacies to sell prescriber-identifying information for
certain purposes, including “health care research.” §4631(e). And
the measure permits insurers, researchers, journalists, the State
itself, and others to use the information. See §4631(d); cf. App.
370–372; id ., at 211. All but conceding that §4631(d) does
not in itself advance confidentiality interests, the State suggests
that other laws might impose separate bars on the disclosure of
prescriber-identifying information. See Vt. Bd. of Pharmacy Admin.
Rule 20.1. But the potential effectiveness of other measures cannot
justify the distinctive set of prohibitions and sanctions imposed
by §4631(d).

															   Perhaps the State could have
addressed physician confidentiality through “a more coherent
policy.” Greater New Orleans Broadcasting , supra ,
at 195; see also Discovery Network , 507 U. S., at 428. For
instance, the State might have advanced its asserted privacy
interest by allowing the information’s sale or disclosure in only a
few narrow and well-justified circumstances. See, e.g. ,
Health Insurance Portability and Accountability Act of 1996, 42 U.
S. C. §1320d–2; 45 CFR pts. 160 and 164 (2010). A statute of
that type would present quite a different case than the one
presented here. But the State did not enact a statute with that
purpose or design. Instead, Vermont made prescriber-identifying
information available to an almost limitless audience. The explicit
structure of the statute allows the information to be studied and
used by all but a narrow class of disfavored speakers. Given the
information’s widespread availability and many permissible uses,
the State’s asserted interest in physician confidentiality does not
justify the burden that §4631(d) places on protected
expression.

															   The State points out that it allows doctors to
forgo the advantages of §4631(d) by consenting to the sale,
disclosure, and use of their prescriber-identifying information.
See §4631(c)(1). It is true that private decisionmaking can avoid
governmental partiality and thus insulate privacy measures from
First Amendment challenge. See Rowan v. Post Office
Dept. , 397 U.
S. 728 (1970); cf. Bolger v. Youngs Drug Products
Corp. , 463 U. S.
60 , 72 (1983). But that principle is inapposite here. Vermont
has given its doctors a contrived choice: Either consent, which
will allow your prescriber-identifying information to be
disseminated and used without constraint; or, withhold consent,
which will allow your information to be used by those speakers
whose message the State supports. Section 4631(d) may offer a
limited degree of privacy, but only on terms favorable to the
speech the State prefers. Cf. Rowan , supra , at
734, 737, 739, n. 6 (sustaining a law that allowed private
parties to make “unfettered,” “unlimited,” and “unreviewable”
choices regarding their own privacy). This is not to say that all
privacy measures must avoid content-based rules. Here, however, the
State has conditioned privacy on acceptance of a content-based rule
that is not drawn to serve the State’s asserted interest. To obtain
the limited privacy allowed by §4631(d), Vermont physicians are
forced to acquiesce in the State’s goal of burdening disfavored
speech by disfavored speakers.

															   Respondents suggest that a further defect of
§4631(d) lies in its presumption of applicability absent a
physician’s election to the contrary. Vermont’s law might burden
less speech if it came into operation only after an individual
choice, but a revision to that effect would not necessarily save
§4631(d). Even reliance on a prior election would not suffice, for
instance, if available categories of coverage by design favored
speakers of one political persuasion over another. Rules that
burden protected expression may not be sustained when the options
provided by the State are too narrow to advance legitimate
interests or too broad to protect speech. As already explained,
§4631(d) permits extensive use of prescriber-identifying
information and so does not advance the State’s asserted interest
in physician confidentiality. The limited range of available
privacy options instead reflects the State’s impermissible purpose
to burden disfavored speech. Vermont’s argument accordingly fails,
even if the availability and scope of private election might be
relevant in other contexts, as when the statute’s design is
unrelated to any purpose to advance a preferred message.

															   The State also contends that §4631(d) protects
doctors from “harassing sales behaviors.” 2007 Vt. Laws No. 80,
§1(28). “Some doctors in Vermont are experiencing an undesired
increase in the aggressiveness of pharmaceutical sales
representatives,” the Vermont Legislature found, “and a few have
reported that they felt coerced and harassed.” §1(20). It is
doubtful that concern for “a few” physicians who may have “felt
coerced and harassed” by pharmaceutical marketers can sustain a
broad content-based rule like §4631(d). Many are those who must
endure speech they do not like, but that is a necessary cost of
freedom. See Erznoznik v. Jacksonville , 422 U. S. 205 , 210–211
(1975); Cohen v. California , 403 U. S. 15 , 21 (1971).
In any event the State offers no explanation why remedies other
than content-based rules would be inadequate. See 44
Liquormart, Inc. v. Rhode Island , 517 U. S. 484 , 503
(1996) (opinion of Stevens, J.). Physicians can, and often do,
simply decline to meet with detailers, including detailers who use
prescriber-identifying information. See, e.g. , App. 180,
333–334. Doctors who wish to forgo detailing altogether are free to
give “No Solicitation” or “No Detailing” instructions to their
office managers or to receptionists at their places of work.
Personal privacy even in one’s own home receives “ample protection”
from the “resident’s unquestioned right to refuse to engage in
conversation with unwelcome visitors.” Watchtower Bible &
Tract Soc. of N. Y., Inc. v. Village of
Stratton , 536
U. S. 150 , 168 (2002); see also Bolger , supra , at 72. A physician’s office is no more private and
is entitled to no greater protection.

															   Vermont argues that detailers’ use of
prescriber-identifying information undermines the doctor-patient
relationship by allowing detailers to influence treatment
decisions. According to the State, “unwanted pressure occurs” when
doctors learn that their prescription decisions are being
“monitored” by detailers. 2007 Vt. Laws No. 80, §1(27). Some
physicians accuse detailers of “spying” or of engaging in
“underhanded” conduct in order to “subvert” prescription decisions.
App. 336, 380, 407–408; see also id. , at 326–328. And
Vermont claims that detailing makes people “anxious” about whether
doctors have their patients’ best interests at heart. Id .,
at 327. But the State does not explain why detailers’ use of
prescriber-identifying information is more likely to prompt these
objections than many other uses permitted by §4631(d). In any
event, this asserted interest is contrary to basic First Amendment
principles. Speech remains protected even when it may “stir people
to action,” “move them to tears,” or “inflict great pain.” Snyder v. Phelps , 562 U. S. ___, ___ (2011) (slip
op., at 15). The more benign and, many would say, beneficial speech
of pharmaceutical marketing is also entitled to the protection of
the First Amendment. If pharmaceutical marketing affects treatment
decisions, it does so because doctors find it persuasive. Absent
circumstances far from those presented here, the fear that speech
might persuade provides no lawful basis for quieting it. Brandenburg v. Ohio , 395 U. S. 444 , 447
(1969) (per curiam) .

															2

															   The State contends that §4631(d)
advances impor- tant public policy goals by lowering the costs of
medical services and promoting public health. If
prescriber-identifying information were available for use by
detailers, the State contends, then detailing would be effective in
promoting brand-name drugs that are more expensive and less safe
than generic alternatives. This logic is set out at length in the
legislative findings accompanying §4631(d). Yet at oral argument
here, the State declined to acknowledge that §4631(d)’s objective
purpose and practical effect were to inhibit detailing and alter
doctors’ prescription decisions. See Tr. of Oral Arg. 5–6. The
State’s reluctance to embrace its own legislature’s rationale
reflects the vulnerability of its position.

															   While Vermont’s stated policy
goals may be proper, §4631(d) does not advance them in a
permissible way. As the Court of Appeals noted, the “state’s own
explanation of how” §4631(d) “advances its interests cannot be said
to be direct.” 630 F. 3d, at 277. The State seeks to achieve
its policy objectives through the indirect means of restraining
certain speech by certain speakers—that is, by diminishing
detailers’ ability to influence prescription decisions. Those who
seek to censor or burden free expression often assert that
disfavored speech has adverse effects. But the “fear that people
would make bad decisions if given truthful information” cannot
justify content-based burdens on speech. Thompson , 535 U.
S., at 374; see also Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U. S. 748 , 769–770
(1976). “The First Amendment directs us to be especially skeptical
of regulations that seek to keep people in the dark for what the
government perceives to be their own good.” 44 Liquormart , supra , at 503 (opinion of Stevens, J.); see also Linmark Associates, Inc. v. Willingboro , 431 U. S. 85 , 97 (1977).
These precepts apply with full force when the audience, in this
case prescribing physicians, consists of “sophisticated and
experienced” consumers. Edenfield , 507 U. S., at 775.

															   As Vermont’s legislative findings acknowledge,
the prem- ise of §4631(d) is that the force of speech can justify
the government’s attempts to stifle it. Indeed the State defends
the law by insisting that “pharmaceutical marketing has a strong
influence on doctors’ prescribing practices.” Brief for Petitioners
49–50. This reasoning is incompatible with the First Amendment. In
an attempt to reverse a disfavored trend in public opinion, a State
could not ban campaigning with slogans, picketing with signs, or
marching during the daytime. Likewise the State may not seek to
remove a popular but disfavored product from the marketplace by
prohibiting truthful, nonmisleading advertisements that contain
impressive endorsements or catchy jingles. That the State finds
expression too persuasive does not permit it to quiet the speech or
to burden its messengers.

															   The defect in Vermont’s law is made clear by
the fact that many listeners find detailing instructive. Indeed the
record demonstrates that some Vermont doctors view targeted
detailing based on prescriber-identifying information as “very
helpful” because it allows detailers to shape their messages to
each doctor’s practice. App. 274; see also id. , at 181,
218, 271–272. Even the United States, which appeared here in
support of Vermont, took care to dispute the State’s “unwarranted
view that the dangers of [n]ew drugs outweigh their benefits to
patients.” Brief for United States as Amicus Curiae 24,
n. 4. There are divergent views regarding detailing and the
prescription of brand-name drugs. Under the Constitution,
resolution of that debate must result from free and uninhibited
speech. As one Vermont physician put it: “We have a saying in
medicine, information is power. And the more you know, or anyone
knows, the better decisions can be made.” App. 279. There are
similar sayings in law, including that “information is not in
itself harmful, that people will perceive their own best interests
if only they are well enough informed, and that the best means to
that end is to open the channels of communication rather than to
close them.” Virginia Bd. , 425 U. S., at 770. The choice
“between the dangers of suppressing information, and the dangers of
its misuse if it is freely available” is one that “the First
Amendment makes for us.” Ibid .

															   Vermont may be displeased that detailers who
use prescriber-identifying information are effective in promoting
brand-name drugs. The State can express that view through its own
speech. See Linmark , 431 U. S., at 97; cf. §4622(a)(1)
(establishing a prescription drug educational program). But a
State’s failure to persuade does not allow it to hamstring the
opposition. The State may not burden the speech of others in order
to tilt public debate in a preferred direction. “The commercial
marketplace, like other spheres of our social and cultural life,
provides a forum where ideas and information flourish. Some of the
ideas and information are vital, some of slight worth. But the
general rule is that the speaker and the audience, not the
government, assess the value of the information presented.” Edenfield , supra , at 767.

															   It is true that content-based restrictions on
protected expression are sometimes permissible, and that principle
applies to commercial speech. Indeed the government’s legitimate
interest in protecting consumers from “commercial harms” explains
“why commercial speech can be subject to greater governmental
regulation than noncommercial speech.” Discovery Network ,
507 U. S., at 426; see also 44 Liquormart , 517 U. S., 502
(opinion of Stevens, J.). The Court has noted, for example, that “a
State may choose to regulate price advertising in one industry but
not in others, because the risk of fraud … is in its view greater
there.” R. A. V. , 505 U. S., at 388–389 (citing Virginia Bd. , supra , at 771–772). Here, however,
Vermont has not shown that its law has a neutral justification.

															   The State nowhere contends that detailing is
false or misleading within the meaning of this Court’s First
Amendment precedents. See Thompson , 535 U. S., at 373. Nor
does the State argue that the provision challenged here will
prevent false or misleading speech. Cf. post , at 10–11
(Breyer, J., dissenting) (collecting regulations that the
government might defend on this ground). The State’s interest in
burdening the speech of detailers instead turns on nothing more
than a difference of opinion. See Bolger , 463 U. S., at
69; Thompson , supra , at 376.

															*  *  *

															   The capacity of technology to
find and publish personal information, including records required
by the government, presents serious and unresolved issues with
respect to personal privacy and the dignity it seeks to secure. In
considering how to protect those interests, however, the State
cannot engage in content-based discrimination to advance its own
side of a debate.

															   If Vermont’s statute provided
that prescriber-identifying information could not be sold or
disclosed except in narrow circumstances then the State might have
a stronger position. Here, however, the State gives possessors of
the information broad discretion and wide latitude in disclosing
the information, while at the same time restricting the
information’s use by some speakers and for some purposes, even
while the State itself can use the information to counter the
speech it seeks to suppress. Privacy is a concept too integral to
the person and a right too essential to freedom to allow its
manipulation to support just those ideas the government
prefers.

															   When it enacted §4631(d), the Vermont
Legislature found that the “marketplace for ideas on medicine
safety and effectiveness is frequently one-sided in that brand-name
companies invest in expensive pharmaceutical marketing campaigns to
doctors.” 2007 Vt. Laws No. 80, §1(4). “The goals of marketing
programs,” the legislature said, “are often in conflict with the
goals of the state.” §1(3). The text of §4631(d), associated
legislative findings, and the record developed in the District
Court establish that Vermont enacted its law for this end. 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.

															   The judgment of the Court of Appeals is
affirmed.

															It is so ordered. BREYER, J., DISSENTING SORRELL V. IMS HEALTH INC. 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 10-779 WILLIAM H. SORRELL, ATTORNEY GENERAL OF VERMONT,
et al., PETITIONERS v. IMS HEALTH INC.
et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[June 23, 2011]

															   Justice Breyer, with whom Justice
Ginsburg and Justice Kagan join, dissenting.

															   The Vermont statute before us
adversely affects expression in one, and only one, way. It deprives
pharmaceutical and data-mining companies of data, collected
pursuant to the government’s regulatory mandate, that could help
pharmaceutical companies create better sales messages. In my view,
this effect on expression is inextricably related to a lawful
governmental effort to regulate a commercial enterprise. The First
Amendment does not require courts to apply a special “heightened”
standard of review when reviewing such an effort. And, in any
event, the statute meets the First Amendment standard this Court
has previously applied when the government seeks to regulate
commercial speech. For any or all of these reasons, the Court
should uphold the statute as constitutional.

															I

															   The Vermont statute before us
says pharmacies and certain other entities

															“shall not [1] sell … regulated records containing
prescriber-identifiable information, nor [2] permit the use of
[such] records … for marketing or promoting a prescription drug,
unless the prescriber consents.” Vt. Stat. Ann., Tit. 18, §4631(d)
(Supp. 2010).

															It also says that

															“[3] [p]harmaceutical manufacturers and
pharmaceutical marketers shall not use prescriber-identifiable
information for marketing or promoting a prescription drug unless
the prescriber consents.” Ibid. For the most part, I shall focus upon the first
and second of these prohibitions. In Part IV, I shall explain why
the third prohibition makes no difference to the result. II In Glickman v. Wileman Brothers & Elliott, Inc. , 521 U. S. 457 (1997),
this Court considered the First Amendment’s application to federal
agricultural commodity mar-keting regulations that required growers
of fruit to make compulsory contributions to pay for collective
adver- tising. The Court reviewed the lawfulness of the
regulation’s negative impact on the growers’ freedom voluntarily to
choose their own commercial messages “under the standard
appropriate for the review of economic regulation.” Id. ,
at 469.

															   In this case I would ask whether
Vermont’s regulatory provisions work harm to First Amendment
interests that is disproportionate to their furtherance of
legitimate regulatory objectives. And in doing so, I would give
significant weight to legitimate commercial regulatory
objectives—as this Court did in Glickman . The far
stricter, specially “heightened” First Amendment standards that the
majority would apply to this instance of commercial regulation are
out of place here. Ante , at 1, 8, 9, 10, 11, 13, 14,
15.

															A

															   Because many, perhaps most,
activities of human beings living together in communities take
place through speech, and because speech-related risks and
offsetting justifications differ depending upon context, this Court
has distinguished for First Amendment purposes among different
contexts in which speech takes place. See, e.g., Snyder v. Phelps , 562 U. S. ___, ___–___ (2011)
(slip op., at 5–6). Thus, the First Amendment imposes tight
constraints upon government efforts to restrict, e.g., “core” political speech, while imposing looser constraints when the
government seeks to restrict, e.g., commercial speech, the
speech of its own employees, or the regulation-related speech of a
firm subject to a traditional regulatory program. Compare Boos v. Barry , 485 U. S. 312 , 321
(1988) (political speech), with Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm’n of N. Y. , 447 U. S. 557 (1980)
(commercial speech), Pickering v. Board of Ed. of
Township High School Dist. 205, Will Cty. , 391 U. S. 563 (1968)
(government employees), and Glickman , supra (economic regulation).

															   These test-related distinctions
reflect the constitutional importance of maintaining a free
marketplace of ideas, a marketplace that provides access to
“social, political, esthetic, moral, and other ideas and
experiences.” Red Lion Broadcasting Co. v. FCC , 395 U. S. 367 ,
390 (1969); see Abrams v. United States , 250 U. S. 616 , 630
(1919) (Holmes, J., dissenting). Without such a marketplace, the
public could not freely choose a government pledged to implement
policies that reflect the people’s informed will.

															   At the same time, our cases make clear that
the First Amendment offers considerably less protection to the
maintenance of a free marketplace for goods and services. See Florida Bar v. Went For It, Inc. , 515 U. S. 618 , 623
(1995) (“We have always been careful to distinguish commercial
speech from speech at the First Amendment’s core”). And they also
reflect the democratic importance of permitting an elected
government to implement through effective programs policy choices
for which the people’s elected representatives have voted.

															   Thus this Court has recognized that commercial
speech including advertising has an “informational function” and is
not “valueless in the marketplace of ideas.” Central
Hudson , supra , at 563; Bigelow v. Virginia , 421 U. S. 809 , 826
(1975). But at the same time it has applied a less than strict,
“intermediate” First Amendment test when the government directly
restricts commercial speech. Under that test, government laws and
regulations may significantly restrict speech, as long as they also
“directly advance” a “substantial” government interest that could
not “be served as well by a more limited restriction.” Central
Hudson , supra , at 564. Moreover, the Court has found
that “sales practices” that are “misleading, deceptive, or
aggressive” lack the protection of even this “intermediate”
standard. 44 Liquormart, Inc. v. Rhode Island , 517 U. S. 484 ,
501 (1996) (opinion of Stevens, J.); see also Central
Hudson , supra , at 563; Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U. S. 748 ,
772 (1976). And the Court has emphasized the need, in applying an
“intermediate” test, to maintain the

															“ ‘commonsense’ distinction between speech
proposing a commercial transaction, which occurs in an area
traditionally subject to government regulation , and other
varieties of speech.” Ohralik v. Ohio State Bar
Assn. , 436 U.
S. 447 , 455–456 (1978) (quoting Virginia Bd. of
Pharmacy , supra , at 771, n. 24; emphasis
added).

															   The Court has also normally
applied a yet more lenient approach to ordinary commercial or
regulatory legislation that affects speech in less direct ways. In
doing so, the Court has taken account of the need in this area of
law to defer significantly to legislative judgment—as the Court has
done in cases involving the Commerce Clause or the Due Process
Clause. See Glickman , supra , at 475–476. “Our
function” in such cases, Justice Brandeis said, “is only to
determine the reasonableness of the legislature’s belief in the
existence of evils and in the effectiveness of the remedy
provided.” New State Ice Co. v. Liebmann , 285 U. S. 262 ,
286–287 (1932) (dissenting opinion); Williamson v. Lee
Optical of Okla., Inc. , 348 U. S. 483 , 488
(1955) (“It is enough that there is an evil at hand for correction,
and that it might be thought that the particular legisla-tive
measure was a rational way to correct it”); United States v. Carolene Products Co. , 304 U. S. 144 , 152
(1938) (“[R]egulatory legislation affecting ordinary commercial
transactions is not to be pronounced unconstitutional” if it rests
“upon some rational basis within the knowledge and experience of
the legislators”).

															   To apply a strict First Amendment standard
virtually as a matter of course when a court reviews ordinary
economic regulatory programs (even if that program has a modest
impact upon a firm’s ability to shape a commercial message) would
work at cross-purposes with this more basic constitutional
approach. Since ordinary regulatory programs can affect speech,
particularly commercial speech, in myriad ways, to apply a
“heightened” First Amendment standard of review whenever such a
program burdens speech would transfer from legislatures to judges
the primary power to weigh ends and to choose means, threatening to
distort or undermine legitimate legislative ob-jectives. See Glickman , 521 U. S., at 476 (“Doubts concerning the policy
judgments that underlie” a program requiring fruit growers to pay
for advertising they disagree with does not “justify reliance on
the First Amendment as a basis for reviewing economic
regulations”). Cf. Johanns v. Livestock Marketing
Assn. , 544 U.
S. 550 , 560–562 (2005) (applying less scrutiny when the
compelled speech is made by the Government); United States v. United Foods, Inc. , 533 U. S. 405 , 411
(2001) (applying greater scrutiny where compelled speech was not
“ancillary to a more comprehensive program restricting marketing
autonomy”). To apply a “heightened” standard of review in such
cases as a matter of course would risk what then-Justice Rehnquist,
dissenting in Central Hudson , described as a

															“retur[n] to the bygone era of Lochner v. New York , 198 U. S. 45 (1905), in which it was
common practice for this Court to strike down economic regulations
adopted by a State based on the Court’s own notions of the most
appropriate means for the State to implement its considered
policies.” 447 U. S., at 589.

															B

															   There are several reasons why the
Court should review Vermont’s law “under the standard appropriate
for the review of economic regulation,” not “under a heightened
standard appropriate for the review of First Amendment issues.” Glickman , 521 U. S., at 469. For one thing, Vermont’s
statute neither forbids nor requires anyone to say anything, to
engage in any form of symbolic speech, or to endorse any particular
point of view, whether ideological or related to the sale of a
product. Cf. id. , at 469–470. (And I here assume that Central Hudson might otherwise apply. See Part III, infra .)

															   For another thing, the same First
Amendment standards that apply to Vermont here would apply to
similar regulatory actions taken by other States or by the Federal
Government acting, for example, through Food and Drug
Administration (FDA) regulation. (And the Federal Government’s
ability to pre-empt state laws that interfere with existing or
contemplated federal forms of regulation is here irrelevant.)

															   Further, the statute’s requirements form part
of a tra-ditional, comprehensive regulatory regime. Cf. United
Foods , supra , at 411. The pharmaceutical drug
industry has been heavily regulated at least since 1906. See Pure
Food and Drugs Act, 34 Stat. 768. Longstanding statutes and
regulations require pharmaceutical companies to engage in complex
drug testing to ensure that their drugs are both “safe” and
“effective.” 21 U. S. C. §§355(b)(1), 355(d). Only then can
the drugs be marketed, at which point drug companies are subject to
the FDA’s exhaustive regulation of the content of drug labels and
the manner in which drugs can be advertised and sold. §352(f)(2);
21 CFR pts. 201–203 (2010).

															   Finally, Vermont’s statute is directed toward
information that exists only by virtue of government regulation.
Under federal law, certain drugs can be dispensed only by a
pharmacist operating under the orders of a medical practitioner. 21
U. S. C. §353(b). Vermont regulates the qualifications, the
fitness, and the practices of pharmacists themselves, and requires
pharmacies to maintain a “patient record system” that, among other
things, tracks who prescribed which drugs. Vt. Stat. Ann., Tit. 26,
§§2041(a), 2022(14) (Supp. 2010); Vt. Bd. of Pharmacy Admin. Rules
(Pharmacy Rules) 9.1, 9.24(e) (2009). But for these regulations,
pharmacies would have no way to know who had told customers to buy
which drugs (as is the case when a doctor tells a patient to take a
daily dose of aspirin).

															   Regulators will often find it necessary to
create tailored restrictions on the use of information subject to
their regulatory jurisdiction. A car dealership that obtains credit
scores for customers who want car loans can be prohibited from
using credit data to search for new customers. See 15 U. S. C.
§1681b (2006 ed. and Supp. III); cf. Trans Union Corp. v. FTC , 245 F. 3d 809, reh’g denied, 267 F. 3d 1138
(CADC 2001). Medical specialists who obtain medical records for
their existing patients cannot purchase those records in order to
identify new patients. See 45 CFR §164.508(a)(3) (2010). Or,
speaking hypothetically, a public utilities commission that directs
local gas distributors to gather usage information for individual
customers might permit the distributors to share the data with
researchers (trying to lower energy costs) but forbid sales of the
data to appliance manufacturers seeking to sell gas stoves.

															   Such regulatory actions are subject to
judicial review, e.g., for compliance with applicable
statutes. And they would normally be subject to review under the
Administrative Procedure Act to make certain they are not
“arbitrary, capricious, [or] an abuse of discretion.” 5 U.
S. C. §706(2)(A) (2006 ed.). In an appropriate case, such
review might be informed by First Amendment considerations. But
regulatory actions of the kind present here have not previously
been thought to raise serious additional constitutional concerns
under the First Amendment. But cf. Trans Union LLC v. FTC , 536 U.
S. 915 (2002) (Kennedy, J., dissenting from denial of
certiorari) (questioning ban on use of consumer credit reports for
target marketing). The ease with which one can point to actual or
hypothet-ical examples with potentially adverse speech-related
effects at least roughly comparable to those at issue here
indicates the danger of applying a “heightened” or “intermediate”
standard of First Amendment review where typical regulatory actions
affect commercial speech (say, by withholding information that a
commercial speaker might use to shape the content of a
message).

															   Thus, it is not surprising that, until today,
this Court has never found that the First
Amendment prohibits the government from restricting the use of
information gathered pursuant to a regulatory mandate—whether the
information rests in government files or has remained in the hands
of the private firms that gathered it. But cf. ante , at
11–14. Nor has this Court ever previously applied any form
of “heightened” scrutiny in any even roughly similar case. See Los Angeles Police Dept. v. United Reporting
Publishing Corp. , 528 U. S. 32 (1999) (no
heightened scrutiny); compare Cincinnati v. Discovery
Network, Inc. , 507 U. S. 410 , 426
(1993) (“[C]ommercial speech can be subject to greater governmental
regulation than noncommercial speech” because of the government’s
“interest in preventing commercial harms”), with ante , at
9–10, 11, 17–18, 24 (suggesting that Discovery Network supports heightened scrutiny when regulations target commercial
speech).

															C

															   The Court (suggesting a standard
yet stricter than Central Hudson ) says that we must give content-based restrictions that burden speech “heightened”
scrutiny. It adds that “[c]ommercial speech is no exception.” Ante , at 10–11. And the Court then emphasizes that this is
a case involving both “content-based” and “speaker-based”
restrictions. See ante , at 8, 9, 10, 12, 14, 15, 16, 19,
20, 22, 24.

															   But neither of these
categories—“content-based” nor “speaker-based”—has ever before
justified greater scrutiny when regulatory activity affects
commercial speech. See, e.g., Capital Broadcasting
Co. v. Mitchell , 333 F. Supp. 582 (DC 1971)
(three-judge court), summarily aff’d sub nom . Capital Broadcasting Co. v. Acting Attorney
General , 405
U. S. 1000 (1972) (upholding ban on radio and television
marketing of tobacco). And the absence of any such precedent is
understandable.

															   Regulatory programs necessarily draw
distinctions on the basis of content. Virginia Bd. of
Pharmacy , 425 U. S., at 761, 762 (“If there is a kind of
commercial speech that lacks all First Amendment protection, … it
must be distinguished by its content”). Electricity regulators, for
example, oversee company statements, pronouncements, and proposals,
but only about electricity. See, e.g., Vt. Pub. Serv. Bd.
Rules 3.100 (1983), 4.200 (1986), 5.200 (2004). The Federal Reserve
Board regulates the content of statements, advertising, loan
proposals, and interest rate disclosures, but only when made by
financial institutions. See 12 CFR pts. 226, 230 (2011). And the
FDA oversees the form and content of labeling, advertising, and
sales proposals of drugs, but not of furniture. See 21 CFR pts.
201–203. Given the ubiquity of content-based regulatory categories,
why should the “content-based” nature of typical regulation require
courts (other things being equal) to grant legislators and
regulators less deference? Cf. Board of Trustees of
State Univ. of N. Y. v. Fox , 492 U. S. 469 , 481
(1989) (courts, in First Amendment area, should “provide the
Legislative and Executive Branches needed leeway” when regulated
industries are at issue).

															   Nor, in the context of a regulatory program,
is it unusual for particular rules to be “speaker-based,” affecting
only a class of entities, namely, the regulated firms. An energy
regulator, for example, might require the manu-facturers of home
appliances to publicize ways to reduce energy consumption, while
exempting producers of industrial equipment. See, e.g., 16
CFR pt. 305 (2011) (prescribing labeling requirements for certain
home appliances); Nev. Admin. Code §§704.804, 704.808 (2010)
(requiring utilities to provide consumers with information on
conservation). Or a trade regulator might forbid a particular firm
to make the true claim that its cosmetic product contains
“cleansing grains that scrub away dirt and ex-cess oil” unless it
substantiates that claim with detailed backup testing, even though
opponents of cosmetics use need not substantiate their claims.
Morris, F. T. C. Orders Data to Back Ad Claims,
N. Y. Times, Nov. 3, 1973, p. 32; Boys’ Life, Oct. 1973,
p. 64; see 36 Fed. Reg. 12058 (1971). Or the FDA might control in
detail just what a pharmaceutical firm can, and cannot, tell
potential purchasers about its products. Such a firm, for example,
could not suggest to a potential purchaser (say, a doctor) that he
or she might put a pharmaceutical drug to an “off label” use, even
if the manufacturer, in good faith and with considerable evidence,
believes the drug will help. All the while, a third party (say, a
researcher) is free to tell the doctor not to use the drug for that
purpose. See 21 CFR pt. 99; cf. Buckman Co. v. Plaintiffs’ Legal Comm ., 531 U. S. 341 , 350–351
(2001) (discussing effect of similar regulations in respect to
medical devices); see also Proposed Rule, Revised Effectiveness
Determination; Sunscreen Drug Products for Over-the-Counter Human
Use, 76 Fed. Reg. 35672 (2011) (proposing to prohibit marketing of
sunscreens with sun protection factor (SPF) of greater than 50 due
to insufficient data “to indicate that there is additional clinical
benefit”).

															   If the Court means to create constitutional
barriers to regulatory rules that might affect the content of a com-mercial message, it has embarked upon an unprecedented
task—a task that threatens significant judicial interference with
widely accepted regulatory activity. Cf., e.g., 21 CFR
pts. 201–203. Nor would it ease the task to limit its “heightened”
scrutiny to regulations that only affect certain speakers. As the
examples that I have set forth illustrate, many regulations affect
only messages sent by a small class of regulated speakers, for
example, electricity generators or natural gas pipelines.

															   The Court also uses the words “aimed” and
“targeted” when describing the relation of the statute to drug
manufacturers. Ante , at 8, 9, 12, 16. But, for the reasons
just set forth, to require “heightened” scrutiny on this basis is
to require its application early and often when the State seeks to
regulate industry. Any statutory initiative stems from a
legislative agenda. See, e.g., Message to Congress, May
24, 1937, H. R. Doc. No. 255, 75th Cong., 1st Sess., 4
(request from President Franklin Roosevelt for legislation to ease
the plight of factory workers). Any administrative initiative stems
from a regulatory agenda. See, e.g., Exec. Order No.
12866, 58 Fed. Reg. 51735 (1993) (specifying how to identify
regulatory priorities and requiring agencies to prepare agendas).
The related statutes, regulations, programs, and initiatives almost
always reflect a point of view, for example, of the Congress and
the administration that enacted them and ultimately the voters. And
they often aim at, and target, particular firms that engage in
practices about the merits of which the Government and the firms
may disagree. Section 2 of the Sherman Act, 15 U. S. C. §2,
for example, which limits the truthful, nonmisleading speech of
firms that, due to their market power, can affect the competitive
landscape, is directly aimed at, and targeted at, monopolists.

															   In short, the case law in this area reflects
the need to ensure that the First Amendment protects the
“marketplace of ideas,” thereby facilitating the democratic
creation of sound government policies without improperly hampering
the ability of government to introduce an agenda, to implement its
policies, and to favor them to the exclusion of contrary policies.
To apply “heightened” scrutiny when the regulation of commercial
activities (which often involve speech) is at issue is
unnecessarily to undercut the latter constitutional goal. The
majority’s view of this case presents that risk.

															   Moreover, given the sheer quantity of
regulatory initiatives that touch upon commercial messages, the
Court’s vision of its reviewing task threatens to return us to a
happily bygone era when judges scrutinized legislation for its
interference with economic liberty. History shows that the power
was much abused and resulted in the constitutionalization of
economic theories preferred by individual jurists. See Lochner v. New York , 198 U. S. 45 , 75–76 (1905) (Holmes, J.,
dissenting). By inviting courts to scrutinize whether a State’s
legitimate regulatory interests can be achieved in less restrictive
ways whenever they touch (even indirectly) upon commercial speech,
today’s majority risks repeating the mistakes of the past in a
manner not anticipated by our precedents. See Central
Hudson , 447 U. S., at 589 (Rehnquist, J., dissenting); cf. Railroad Comm’n of Tex. v. Rowan & Nichols Oil
Co. , 310 U. S.
573 , 580–581 (1940) (“A controversy like this always calls for
fresh reminder that courts must not substitute their notions of
expediency and fairness for those which have guided the agencies to
whom the formulation and execution of policy have been
entrusted”).

															   Nothing in Vermont’s statute undermines the
ability of persons opposing the State’s policies to speak their
mind or to pursue a different set of policy objectives through the
democratic process. Whether Vermont’s regulatory statute “targets”
drug companies (as opposed to affecting them unintentionally) must
be beside the First Amendment point.

															   This does not mean that economic regulation
having some effect on speech is always lawful. Courts typically
review the lawfulness of statutes for rationality and of
regulations (if federal) to make certain they are not “arbitrary,
capricious, [or] an abuse of discretion.” 5 U. S. C.
§706(2)(A). And our valuable free-speech tradition may play an
important role in such review. But courts do not normally view
these matters as requiring “heightened” First Amendment
scrutiny—and particularly not the un-forgiving brand of
“intermediate” scrutiny employed by the majority. Because the
imposition of “heightened” scrutiny in such instances would
significantly change the legislative/judicial balance, in a way
that would significantly weaken the legislature’s authority to
regulate commerce and industry, I would not apply a “heightened”
First Amendment standard of review in this case.

															III

															   Turning to the constitutional
merits, I believe Vermont’s statute survives application of Central Hudson ’s “intermediate” commercial speech standard
as well as any more limited “economic regulation” test.

															A

															   The statute threatens only modest
harm to commercial speech. I agree that it withholds from
pharmaceutical companies information that would help those entities
create a more effective selling message. But I cannot agree with
the majority that the harm also involves unjustified discrimination
in that it permits “pharmacies” to “share prescriber-identifying
information with anyone for any reason” (but marketing). Ante , at 17. Whatever the First Amendment relevance of
such discrimination, there is no evidence that it exists in
Vermont. The record contains no evidence that
prescriber-identifying data is widely disseminated. See App. 248,
255. Cf. Burson v. Freeman , 504 U. S. 191 , 207
(1992) (plurality opinion) (“States adopt laws to address the
problems that confront them. The First Amendment does not require
States to regulate for problems that do not exist”); Bates v. State Bar of Ariz. , 433 U. S. 350 , 380
(1977) (“[T]he justification for the application of overbreadth
analysis applies weakly, if at all, in the ordinary commercial
context”).

															   The absence of any such evidence
likely reflects the presence of other legal rules that forbid
widespread release of prescriber-identifying information. Vermont’s
Pharmacy Rules, for example, define “unprofessional conduct” to
include “[d]ivulging or revealing to unauthorized persons patient or practitioner information or the nature of professional
pharmacy services rendered.” Rule 20.1(i) (emphasis added); see
also Reply Brief for Petitioners 21. The statute reinforces this
prohibition where pharmaceutical marketing is at issue. And the
exceptions that it creates are narrow and concern common and often
essential uses of prescription data. See Vt. Stat. Ann., Tit. 18,
§4631(e)(1) (pharmacy reimbursement, patient care management,
health care research); §4631(e)(2) (drug dispensing); §4631(e)(3)
(communications between prescriber and pharmacy); §4631(e)(4)
(information to patients); §§4631(e)(5)–(6) (as otherwise provided
by state or federal law). Cf. Trans Union Corp. , 245
F. 3d, at 819 (rejecting an underinclusiveness challenge
because an exception to the Fair Credit Reporting Act concerned
“ ‘exactly the sort of thing the Act seeks to promote’ ”
(quoting Trans Union Corp. v. FTC , 81 F. 3d
228, 234 (CADC 1996)).

															   Nor can the majority find record support for
its claim that the statute helps “favored” speech and imposes a
“burde[n]” upon “disfavored speech by disfavored speakers.” Ante , at 19. The Court apparently means that the statute
(1) prevents pharmaceutical companies from creating individualized
messages that would help them sell their drugs more effectively,
but (2) permits “counterdetailing” programs, which often promote
generic drugs, to create such messages using prescriber-identifying
data. I am willing to assume, for argument’s sake, that this
consequence would significantly increase the statute’s negative
impact upon commercial speech. But cf. 21 CFR §§202.1(e)(1),
202.1(e)(5)(ii) (FDA’s “fair balance” requirement); App. 193 (no
similar FDA requirement for nondrug manufacturers). The record
before us, however, contains no evidentiary basis for the
conclusion that any such individualized counterdetailing is
widespread, or exists at all, in Vermont.

															   The majority points out, ante , at 4,
that Act 80, of which §4631 was a part, also created an
“evidence-based prescription drug education program,” in which the
Vermont Department of Health, the Department of Vermont Health
Access, and the University of Vermont, among others, work together
“to provide information and education on the therapeutic and
cost-effective utilization of prescription drugs” to health
professionals responsible for prescribing and dispensing
prescription drugs, Vt. Stat. Ann., Tit. 18, §4622(a)(1). See
generally §§4621–4622. But that program does not make use
of prescriber-identifying data. Reply Brief for Petitioners 11.

															   The majority cites testimony by two witnesses
in support of its statement that “States themselves may supply the
prescriber-identifying information used in [counterdetailing]
programs.” Ante , at 4. One witness explained that academic
detailers in Pennsylvania work with state health officials
to identify physicians serving patients whose health care is
likewise state provided. App. 375. The other, an IMS Health
officer, observed that Vermont has its own multipayer database
containing prescriber-identifying data, which could be
used to talk to doctors about their prescription patterns and the
lower costs associated with generics. Id. , at 313. But
nothing in the record indicates that any “counterdetailing” of this
kind has ever taken place in fact in Vermont .
State-sponsored health care professionals sometimes meet with small
groups of doctors to discuss best practices and generic drugs
generally. See University of Vermont, College of Medicine, Office
of Primary Care, Vermont Academic Detailing Program (July 2010),
http://www.med.uvm.edu/ ahec/downloads/VTAD_overview_2010.07.08.pdf
(all Inter-net materials as visited June 21, 2011, and available in
Clerk of Court’s case file). Nothing in Vermont’s statute prohibits
brand-name manufacturers from undertaking a similar effort.

															   The upshot is that the only
commercial-speech-related harm that the record shows this statute
to have brought about is the one I have previously described: The
withholding of information collected through a regulatory program,
thereby preventing companies from shaping a commercial message they
believe maximally effective. The absence of precedent suggesting
that this kind of harm is serious reinforces the conclusion that
the harm here is modest at most.

															B

															   The legitimate state interests
that the statute serves are “substantial.” Central Hudson ,
447 U. S., at 564. Vermont enacted its statute

															“to advance the state’s interest in protecting the
public health of Vermonters, protecting the privacy of prescribers
and prescribing information, and to ensure costs are contained in
the private health care sector, as well as for state purchasers of
prescription drugs, through the promotion of less costly drugs and
ensuring prescribers receive unbiased information.” §4631(a).

															These objectives are important. And the interests
they embody all are “neutral” in respect to speech. Cf. ante , at 24.

															   The protection of public health falls within
the traditional scope of a State’s police powers. Hillsborough
County v. Automated Medical Laboratories, Inc. , 471 U. S. 707 ,
719 (1985). The fact that the Court normally exempts the regulation
of “misleading” and “deceptive” information even from the rigors of
its “intermediate” commercial speech scrutiny testifies to the
importance of securing “unbiased information,” see 44
Liquormart , 517 U. S., at 501 (opinion of Stevens, J.); Central Hudson , supra , at 563, as does the fact
that the FDA sets forth as a federal regulatory goal the need to
ensure a “fair balance” of information about marketed drugs, 21 CFR
§§202.1(e)(1), 202.1(e)(5)(ii). As major payers in the health care
system, health care spending is also of crucial state interest. And
this Court has affirmed the importance of maintaining “privacy” as
an important public policy goal—even in respect to information
already disclosed to the public for particular purposes (but not
others). See Department of Justice v. Reporters Comm.
for Freedom of Press , 489 U. S. 749 , 762–771
(1989); see also Solove, A Taxonomy of Privacy, 154 U. Pa.
L. Rev. 477, 520–522 (2006); cf. NASA v. Nelson , 562 U. S. ___, ___–___ (2011) (slip op., at 8–9)
(discussing privacy interests in nondisclosure).

															   At the same time, the record evidence is
sufficient to permit a legislature to conclude that the statute
“directly advances” each of these objectives. The statute helps to
focus sales discussions on an individual drug’s safety,
effectiveness, and cost, perhaps compared to other drugs (including
generics). These drug-related facts have everything to do with
general information that drug manufacturers likely possess. They
have little, if anything, to do with the name or prior prescription
practices of the particular doctor to whom a detailer is speaking.
Shaping a detailing message based on an individual doctor’s prior
prescription habits may help sell more of a particular
manufacturer’s particular drugs. But it does so by diverting
attention from scientific research about a drug’s safety and
effectiveness, as well as its cost. This diversion comes at the
expense of public health and the State’s fiscal interests.

															   Vermont compiled a substantial legislative
record to corroborate this line of reasoning. See Testimony of Sean
Flynn (Apr. 11, 2007), App. in No. 09–1913–cv(L) etc. (CA2), p.
A–1156 (hereinafter CA2 App.) (use of data mining helps drug
companies “to cover up information that is not in the best of light
of their drug and to highlight information that makes them look
good”); Volker & Outterson, New Legislative Trends Threaten the
Way Health Information Companies Operate, Pharmaceutical Pricing
& Reimbursement 2007, id. , at A–4235 (one former
detailer considered prescriber-identifying data the
“ ‘greatest tool in planning our approach to manipulating
doctors’ ” (quoting Whitney, Big (Brother) Pharma: How Drug
Reps Know Which Doctors to Target, New Republic, Aug. 29, 2006,
http://www.tnr.com/article/84056/health-care-eli-lilly-pfizer-ama);
Testimony of Paul Harrington (May 3, 2007), id. , at A–1437
(describing data mining practices as “secret and manipulative
activities by the marketers”); Testimony of Julie Brill (May 3,
2007), id. , at A–1445 (restrictions on data mining
“ensur[e] that the FDA’s requirement of doctors receiving fair and
balanced information actually occurs”); Written Statement of Jerry
Avorn & Aaron Kesselheim, id. , at A–4310 (citing
studies that “indicate that more physician-specific detailing will
lead to more prescriptions of brand-name agents, often with no
additional patient benefit but at much higher cost to patients and
to state-based insurance programs, which will continue to drive up
the cost of health care”); id. , at 4311 (“Making it more
difficult for manufacturers to tailor their marketing strategies to
the prescribing histories of individual physicians would actually
encourage detailers to present physicians with a more neutral
description of the product”); see also Record in No.
1:07–cv–00188–jgm (D Vt.), Doc. 414, pp. 53–57, 64 (hereinafter
Doc. 414) (summarizing record evidence).

															   These conclusions required the legislature to
make judgments about whether and how to ameliorate these problems.
And it is the job of regulatory agencies and legislatures to make
just these kinds of judgments. Vermont’s attempts to ensure a “fair
balance” of information is no different from the FDA’s similar
requirement, see 21 CFR §§202.1(e)(1), 202.1(e)(5)(ii). No one has
yet suggested that substantial portions of federal drug regulation
are unconstitutional. Why then should we treat Vermont’s law
differently?

															   The record also adequately supports the
State’s privacy objective. Regulatory rules in Vermont make clear
that the confidentiality of an individual doctor’s prescribing
practices remains the norm. See, e.g., Pharmacy Rule
8.7(c) (“Prescription and other patient health care information
shall be secure from access by the public, and the information
shall be kept confidential”); Pharmacy Rule 20.1(i) (forbidding
disclosure of patient or prescriber information to “unauthorized
persons” without consent). Exceptions to this norm are
comparatively few. See, e.g., ibid . (identifying
“authorized persons”); Vt. Stat. Ann., Tit. 18, §4631(e); App. 248,
255 (indicating that prescriber-identifying data is not widely
disseminated). There is no indication that the State of Vermont, or
others in the State, makes use of this information for
counterdetailing efforts. See supra , at 15.

															   Pharmaceutical manufacturers and the data
miners who sell information to those manufacturers would like to
create (and did create) an additional exception, which means
additional circulation of otherwise largely confi-dential
information. Vermont’s statute closes that door. At the same time,
the statute permits doctors who wish to permit use of their
prescribing practices to do so. §§4631(c)–(d). For purposes of Central Hudson , this would seem sufficiently to show that
the statute serves a meaningful interest in increasing the
protection given to prescriber privacy. See Fox , 492 U.
S., at 480 (in commercial speech area, First Amendment requires “a
fit that is not necessarily perfect, but reasonable; that
represents not necessarily the single best disposition but one
whose scope is in proportion to the interest served” (internal
quotation marks omitted)); see also United States v. Edge Broadcasting Co. , 509 U. S. 418 , 434
(1993) (The First Amendment does not “require that the Government
make progress on every front before it can make progress on any
front”); Burson , 504 U. S., at 207 (plurality
opinion).

															C

															   The majority cannot point to any
adequately supported, similarly effective “more limited
restriction.” Central Hudson , 447 U. S., at 564. It says
that doctors “can, and often do, simply decline to meet with
detailers.” Ante , at 20. This fact, while true, is beside
the point. Closing the office door entirely has no similar tendency
to lower costs (by focusing greater attention upon the comparative
advantages and disadvantages of generic drug alternatives). And it
would not protect the confidentiality of information already
released to, say, data miners. In any event, physicians are
unlikely to turn detailers away at the door, for those detailers,
whether delivering a balanced or imbalanced message, are
nonetheless providers of much useful information. See Manchanda
& Honka, The Effects and Role of Direct-to-Physician Marketing
in the Pharmaceutical Industry: An Integrative Review, 5 Yale J.
Health Pol’y L. & Ethics 785, 793–797, 815–816 (2005); Ziegler,
Lew, & Singer, The Accuracy of Drug Information from
Pharmaceutical Sales Representatives, 273 JAMA 1296 (1995). Forcing
doctors to choose between targeted detailing and no detailing at
all could therefore jeopardize the State’s interest in promoting
public health.

															   The majority also suggests that
if the “statute provided that prescriber-identifying information
could not be sold or disclosed except in narrow circumstances then
the State might have a stronger position.” Ante , at 24–25;
see also ante , at 17. But the disclosure-permitting
exceptions here are quite narrow, and they serve useful,
indeed essential purposes. See supra , at 14. Compare Vt.
Stat. Ann., Tit. 18, §4631(e) with note following 42 U. S. C.
§1320d–2, p. 1190, and 45 CFR §164.512 (uses and disclosures not
requiring consent under the Health Insurance Portability and
Accountability Act of 1996). Regardless, this alternative is not “a more limited restriction,” Central Hudson , supra , at 564 (emphasis added), for it would impose a greater , not a lesser , burden upon the
dissemination of information.

															   Respondents’ alternatives are no more helpful.
Respondents suggest that “Vermont can simply inform physicians that
pharmaceutical companies … use prescription history information to
communicate with doctors.” Brief for Respondent Pharmaceutical
Research and Manufacturers of America 48. But how would that help
serve the State’s basic purposes? It would not create the “fair
balance” of information in pharmaceutical marketing that the State,
like the FDA, seeks. Cf. Reno v. American Civil
Liberties Union , 521 U. S. 844 , 874
(1997) (alternative must be “at least as effective in achieving the
legitimate purpose that the statute was enacted to serve”).
Respondents also suggest policies requiring use of generic drugs or
educating doctors about their benefits. Brief for Respondent
Pharmaceutical Research and Manufacturers of America 54–55. Such
programs have been in effect for some time in Vermont or other
States, without indication that they have prevented the imbalanced
sales tactics at which Vermont’s statute takes aim. See, e.g., Written Statement of Jerry Avorn & Aaron
Kesselheim, CA2 App. 4310; Doc. 414, at 60–61. And in any event,
such laws do not help protect prescriber privacy.

															   Vermont has thus developed a record that
sufficiently shows that its statute meaningfully furthers
substantial state interests. Neither the majority nor respondents
suggests any equally effective “more limited” restriction. And the
First Amendment harm that Vermont’s statute works is, at most,
modest. I consequently conclude that, even if we apply an
“intermediate” test such as that in Central Hudson, this
statute is constitutional.

															IV

															   What about the statute’s third
restriction, providing that “[p]harmaceutical manufacturers and
pharmaceutical marketers” may not “ use prescriber-identifiable information for marketing or promoting a
prescription drug unless the prescriber consents”? Vt. Stat. Ann.,
Tit. 18, §4631(d) (emphasis added). In principle, I should not
reach this question. That is because respondent pharmaceutical
manufacturers, marketers, and data miners seek a declaratory
judgment and injunction prohibiting the enforcement of this
statute. See 28 U. S. C. §2201; App. 49–128. And they have
neither shown nor claimed that they could obtain significant
amounts of “prescriber-identifiable information” if the first two
prohibitions are valid. If, as I believe, the first two statutory
prohibitions (related to selling and disclosing the information)
are valid, then the dispute about the validity of the third
provision is not “ ‘real and substantial’ ” or
“ ‘definite and concrete.’ ” MedImmune, Inc. v. Genentech, Inc. , 549 U. S. 118 , 127
(2007) (quoting Aetna Life Ins. Co. v. Haworth , 300 U. S. 227 ,
240–241 (1937)) (Article III does not permit courts to entertain
such disputes).

															   The Court, however, strikes down
all three provisions, and so I add that I disagree with the
majority as to the constitutionality of the third restriction as
well—basically for the reasons I have already set out. The
prohibition against pharmaceutical firms using this
prescriber-identifying information works no more than modest First
Amendment harm; the prohibition is justified by the need to ensure
unbiased sales presentations, prevent unnecessarily high drug
costs, and protect the privacy of prescribing physicians. There is
no obvious equally effective, more limited alternative.

															V

															   In sum, I believe that the
statute before us satisfies the “intermediate” standards this Court
has applied to restrictions on commercial speech. A
fortiori it satisfies less demanding standards that are more
appropriately applied in this kind of commercial regulatory case—a
case where the government seeks typical regulatory ends (lower drug
prices, more balanced sales messages) through the use of ordinary
regulatory means (limiting the commercial use of data gathered
pursuant to a regulatory mandate). The speech-related consequences
here are indirect, incidental, and entirely commercial. See supra , at 6–9.

															   The Court reaches its conclusion
through the use of important First Amendment
categories—“content-based,” “speaker-based,” and “neutral”—but
without taking full account of the regulatory context, the nature
of the speech effects, the values these First Amendment categories
seek to promote, and prior precedent. See supra , at 2–6,
9–13, 17. At best the Court opens a Pandora’s Box of First
Amendment challenges to many ordinary regulatory practices that may
only incidentally affect a commercial message. See, e.g., supra , at 7–8, 9–11. At worst, it reawakens Lochner ’s pre-New Deal threat of substituting judicial for
democratic decisionmaking where ordinary economic regulation is at
issue. See Central Hudson , 447 U. S., at 589 (Rehnquist,
J., dissenting).

															   Regardless, whether we apply an ordinary
commercial speech standard or a less demanding standard, I believe
Vermont’s law is consistent with the First Amendment. And with
respect, I dissent.