Anticompetitive data dissemination in the medical profession: the conflict between the Sherman act and the First Amendment.

The antitrust prohibitions of the Sherman Act' in many ways have a "unique relationship ' 2 with the free speech guarantees of the first amendment. 3 By protecting the free flow of information between buyers and sellers, 4 the Sherman Act protects first amendment rights to disseminate and receive information. 5 By defining competition as the goal of its prohibitions, 6 the Sherman Act, like the first amendment, Act provides: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States,.. . is hereby declared to be illegal." Id. § 1. Interpreting the broad language of the Sherman Act as congressional permission to establish a federal common law against trade restraints, the Supreme Court has established, under section 1, prohibitions against a variety of forms of anticompetitive agreements, including data dissemination, see, e. 4. "The courts that have considered the issue construe commercial advertising prohibitions as unlawful restraints on trade under the Sherman Act. 5. See note 4 supra and note 8 infra. 6. The Supreme Court has maintained that the Sherman Act prohibition of "restraints of trade," 15 U.S.C. § 1 (1976), should be interpreted as essentially prohibiting restrictions on competition. [W]hile the principles concerning contracts in restraint of trade, that is, voluntary restraint put by a person on his right to pursue his calling, hence only operating subjectively , came generally [in the United States] to be recognized in accordance with the 1142