SCOTUS to Look at Data Mining and Conflict-of-Interest Laws


The Supreme Court will hear two arguments that may have implications for transparency and open government in this last week of oral arguments for the Term. The scope of constitutional protection for data-mining and commercial speech is at issue in Sorrell v. IMS Health, which will be heard on Tuesday, April 26. The constitutionality of a Nevada conflict-of-interest law is at issue in Nevada Commission on Ethics v. Carrigan, which will be heard on April 27.

Sorrell v. IMS Health

This case concerns the constitutionality of restricting the use of information obtained through data mining for drug marketing purposes.

On one side is the state of Vermont, which, with the support of the Deputy U.S. Solicitor General, will argue in defense of a law that limits the commercial use of data obtained through data mining. Vermont will argue that drug manufacturers and data-mining companies do not have a constitutional right to access or use non-public prescription information.

On the other side is data mining companies and pharmaceutical manufacturers, who will argue that their right to freely use this data is protected under First Amendment guarantees of free speech and free press. They contend that commercial speech should be entitled to strict First Amendment protection equal to that of political speech.

Nevada Commission on Ethics v. Carrigan

This case concerns the constitutionality of a state statute that requires public officials to recuse themselves from voting when there may be a conflict of interest. At issue is whether City Council member Michael Carrigan violated state ethics rules when he voted on an application for a new casino – after his close friend and volunteer campaign manager was hired by the developer.

The Commission seeks to uphold the conflict-of-interest rules, and sees Carrigan’s position as threatening “bedrock conflict-of-interest rules in virtually every state,” including basic laws “that have been an accepted and necessary part of representative self-government since before the ratification of the First Amendment.”

Carrigan will argue that limiting his ability to vote is a violation of First Amendment political speech protections. He views Nevada’s conflict-of-interest laws as unreasonable and unconstitutional if they are so expansive that they prevent a City Council member from representing his or her constituents even when he or she has no financial or familial ties to an issue under consideration.