Freedom Not to Speak

The Forum for Academic and Institutional Rights, Inc. (FAIR) is an association of law schools and law faculties whose members have adopted policies expressing opposition to discrimination based on sexual orientation. These members objected to the military's policy regarding homosexuals in the military and sought to restrict military recruiting on their campuses. In response to such restrictions by law schools, Congress enacted the Solomon Amendment, which denies specified federal funds to institutions of higher education that do not provide military recruiters access equal to that provided other recruiters. In 2003, FAIR filed suit against enforcement of the Solomon Amendment and sought a preliminary injunction. At that time, the statute prevented the Department of Defense from providing funds to institutions that prohibited or prevented military recruiters from gaining entry to campuses. After the September 11, 2001 attacks, the Department of Defense had adopted an informal policy requiring equal access in quality and scope to students. Some law schools had previously arranged for military recruiters to interview on the undergraduate campus to comply while maintaining their policies. The District Court for the District of New Jersey denied the preliminary injunction. The court concluded that FAIR had not established a likelihood of success on the merits of its claims. Congress subsequently amended the Solomon Amendment to codify the equal access requirement, specifying that military recruiters must receive access at least equal in quality and scope to that provided any other employer. FAIR appealed to the Court of Appeals for the Third Circuit. A divided panel of the Third Circuit reversed the District Court and remanded with instructions to enter a preliminary injunction against enforcement of the Solomon Amendment. The Supreme Court granted certiorari to review the Third Circuit's decision.

PruneYard Shopping Center is a privately owned shopping center in Campbell, California. It covers approximately 21 acres with 5 acres devoted to parking and 16 acres occupied by walkways, plazas, sidewalks, and buildings. These buildings contain more than 65 specialty shops, 10 restaurants, and a movie theater. The center is open to the public for the purpose of encouraging the patronizing of its commercial establishments. The center maintains a policy of not permitting any visitor or tenant to engage in any publicly expressive activity. This includes the circulation of petitions that is not directly related to its commercial purposes. The policy has been strictly enforced in a nondiscriminatory fashion by a security force. The center is owned by appellant Fred Sahadi. In December 1975, appellees who are high school students sought to solicit support for their opposition to a United Nations resolution against Zionism. On a Saturday afternoon they set up a card table in a corner of PruneYard's central courtyard. They distributed pamphlets and asked passersby to sign petitions that were to be sent to the President and Members of Congress. Their activity was peaceful and orderly and so far as the record indicates it was not objected to by PruneYard's patrons. Soon after the students had begun soliciting signatures a security guard informed them that they would have to leave because their activity violated PruneYard regulations. The guard suggested that they move to the public sidewalk at the PruneYard's perimeter. The students immediately left the premises and later filed this lawsuit in the California Superior Court of Santa Clara County. They sought to enjoin the shopping center owners from denying them access to the PruneYard for the purpose of circulating their petitions. The Superior Court held that the students were not entitled under either the Federal or California Constitution to exercise their asserted rights on the shopping center property. It concluded that there were adequate effective channels of communication available to them other than soliciting on the private property. The California Court of Appeal affirmed. The California Supreme Court reversed. It held that the California Constitution protects speech and petitioning reasonably exercised in shopping centers even when the centers are privately owned. It concluded that the students were entitled to conduct their activity on PruneYard property. The United States Supreme Court granted certiorari.

In 2007 Vermont enacted the Prescription Confidentiality Law, also known as Act 80, whose central provision appears at Vt. Stat. Ann., Tit. 18, §4631(d). The statute prohibits pharmacies, health insurers, electronic transmission intermediaries, and similar entities from selling, licensing, or exchanging prescriber-identifying information, and from permitting its use for marketing prescription drugs, unless the prescriber consents. It likewise bars pharmaceutical manufacturers and marketers from using such information for marketing absent consent. The prohibitions are subject to enumerated exceptions that permit dissemination and use for health-care research, enforcement of insurance formularies, patient care-management communications, law enforcement, and purposes otherwise provided by law. Pharmaceutical manufacturers promote brand-name drugs through a process called detailing, in which sales representatives visit physicians' offices to present information and samples. Pharmacies receive prescriber-identifying information when filling prescriptions pursuant to federal and state requirements and routinely sell that information to data-mining firms. The data miners analyze the records, produce reports on individual physicians' prescribing patterns, and lease the reports to pharmaceutical manufacturers under nondisclosure agreements so that detailers can tailor their presentations. Respondents are three Vermont data-mining companies and the Pharmaceutical Research and Manufacturers of America, an association of brand-name drug manufacturers. They filed two consolidated actions in the United States District Court for the District of Vermont. The suits named the Vermont Attorney General and other state officials as defendants. Respondents sought declaratory and injunctive relief on the ground that §4631(d) violates their First Amendment rights. After a bench trial the district court denied relief. The Court of Appeals for the Second Circuit reversed, holding that the statute unconstitutionally burdens protected speech. The Supreme Court granted certiorari to resolve the conflict with decisions of the First Circuit upholding similar statutes in Maine and New Hampshire. The Vermont Legislature accompanied the statute with formal findings. Detailing often conflicts with state public-health goals. Use of prescriber-identifying data increases the effectiveness of brand-name marketing. The resulting increase in prescriptions of newer, more expensive drugs raises healthcare costs. The Act also funded an evidence-based prescription-drug education program intended to promote therapeutic and cost-effective prescribing.