Frank Pasquale has a lengthy, but informative piece on how promoting information privacy can in fact promote First Amendment values. As such, he hopes the Supreme Court will affirm in Sorrell. While his arguments about the First Amendment are interesting, ultimately it boils down to an interest-balancing test:
While IMS v. Sorrell is often characterized as a direct clash between privacy and the First Amendment, it is better characterized as a more complex struggle over the ethical conduct of commerce, medicine, and marketing. There are First Amendment values that favor Vermont’s enterprise, and those which support the efforts of IMS Health to gather physician-identified data. But only one side in the case is serious about constructing a balanced and thoughtful reconciliation of the interests of patient, physician, pharma, and marketing stakeholders here. Vermont’s statute may not be perfect, but it at least tries to promote that balance. A victory for the plaintiffs would only accelerate our current trend toward an information environment where powerful corporations create unaccountable databases about individuals and their communities, while cloaking their own practices in trade secrecy.
He rejects Eugene Volokh’s concern that “the difficulty [with regulations] is that the right to information privacy—my right to control your communication of personally identifiable information about me—is a right to have the government stop you from speaking about me” as “Lochneresque.”
I have not followed Sorrell carefully, so I won’t opine on the merits. I would note that I have a somewhat complicated view here, as I have written at some length about information privacy law in the context of Google Street View, though am generally opposed to courts inhibiting communication in derogation of First Amendment values. I will follow oral arguments in this case closely.