In May 2012, the Federal Trade Commission, the Department of Justice, and the Consumer Financial Protection Bureau intervened and filed a memorandum in support of the constitutionality of the Fair Credit Reporting Act (FCRA). The issue arose in Shamara King v. General Information Services, Inc. when the defendant, General Information Services (GIS), moved to dismiss the case; claiming that the FCRA was unconstitutional based upon the recent Supreme Court ruling in Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011). As the dissent in Sorrell noted, the ruling would potentially open a Pandora’s Box of First Amendment challenges pertaining to the disclosure of public information. The issue of disclosing public information is the very issue at the heart of a class action lawsuit which was filed in the U.S. District Court for the Eastern District of Pennsylvania against the credit reporting agency, GIS. The complaint was filed on behalf of thousands of similarly situated employment applicants who have been the subject of misleading, detrimental, and illegal background reports performed by GIS and then sold to employers. The central claim in this lawsuit is centered on FCRA, 15 U.S.C. § 1681c. This provision prohibits consumer reporting agencies from disclosing public information about an individual’s criminal record (excluding criminal convictions) if the information is more than seven years old.
GIS claims that Sorrell marks a substantial shift in the protection afforded to commercial speech, because a prohibition on disclosure of truthful information regarding an individual’s criminal record falls squarely within Sorrell’s holding. On the contrary, Plaintiffs argue that Sorrell does not purport to overrule the Supreme Court’s commercial speech theory of law. Nor does it break any new ground suggesting that, after forty years, § 1681c is now unconstitutional. It will be interesting to see how the opening of Pandora’s Box will affect the Supreme Court’s well-established commercial speech jurisprudence.