When lawyers talk about civil rights, they usually discuss protecting women and minorities against different forms of discrimination. When large U.S. corporations talk about civil rights, they have something quite different in mind.
Work in the civil rights field increasingly involves battles against the government regulation of businesses. How did this happen?
The Civil Rights Act of 1964 outlawed discrimination based on race, color, religion, sex, or national origin. Almost a century earlier, Congress passed the Civil Rights Act of 1871, which many referred to as the Ku Klux Klan Act because it was designed to stop state officials from depriving African-Americans of their federal rights.
Codified as 42 U.S.C. § 1983, the act stated that any person who, under color of any state law, deprived a U.S. citizen or any person in the United States of any federal right would be liable for damages and could be enjoined from committing future violations.
This was a powerful tool that became even more powerful with the enactment of the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, providing that one who prevails in a section 1983 action is entitled to recover attorney’s fees.
These laws certainly were not passed with corporate America in mind. Large businesses usually got their way through well-funded lobbying efforts and supporting candidates who would act in their interests.
But big business does come under attack by state officials from time to time. One example is a group of state laws that banned the sale of information for targeted marketing. The laws had been enacted in 2006 and 2007 after several big data companies found innovative ways to ensure that doctors knew about the most recent drug discoveries. The companies bought reams of data from large pharmacy chains, like CVS and Walgreens, and the data showed that many doctors weren’t prescribing the best drugs for their patients. The companies then sold this information to drug companies. States across the country became alarmed that this would drive up health care costs. Three states—New Hampshire, Maine, and Vermont—banned pharmacies from continuing to sell their information.
The Reconstruction Civil Rights Act of 1871 came to the rescue, since the laws violated the companies’ rights under the First Amendment of the U.S. Constitution to gather and sell information.
It took six years of hard-fought litigation, however, to persuade federal judges that the old law could be used to protect businesses. Lower court judges were also quite divided on this. Ultimately, the U.S. Supreme Court resolved the matter by a vote of six to three in Sorrell v. IMS Health, Inc., 564 US 552 (2011).
What is most exciting for civil rights lawyers is that Sorrell has opened the door to thousands of attacks on government regulations that limit the use of information, compel businesses to disclose data, or force businesses to advocate positions with which they disagree. Since 2011, Sorrell has been cited in more than 1,100 judicial opinions involving laws governing tobacco, meat, securities, credit cards, trademarks, guns, billboards, health care, and many other commercial activities.
Not every challenge has been successful because many judges still feel unsettled about seeing a Civil War-era law used to help big business.
However, many challenges have been encountered and many more will be successful as the judiciary comes to accept that the law protects everyone’s federal civil rights.
