Bolger v. Youngs Drug Products Corp, No. 81-1590

• Court: United States Supreme Court
• Writing for the Court: MARSHALL
• Citation: 77 L.Ed.2d 469,463 U.S. 60,103 S.Ct. 2875
• Parties: William F. BOLGER, et al., Appellants v. YOUNGS DRUG PRODUCTS CORP
• Docket Number: No. 81-1590
• Decision Date: 24 June 1983

463 U.S. 60 103 S.Ct. 2875 77 L.Ed.2d 469 William F. BOLGER, et al., Appellants

v.

YOUNGS DRUG PRODUCTS CORP.

No. 81-1590. Argued Jan. 12, 1983. Decided June 24, 1983. Syllabus

Title 39 U.S.C. § 3001(e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. When appellee manufacturer of contraceptives proposed to mail to the public unsolicited advertisements including informational pamphlets promoting its products but also discussing venereal disease and family planning, the Postal Service notified appellee that the proposed mailings would violate § 3001(e)(2). Appellee then brought an action for declaratory and injunctive relief in Federal District Court, which held that the statute, as applied to the proposed mailings, violated the First Amendment.

Held: As applied to appellee's proposed mailings, § 3001(e)(2) is unconstitutional. Pp. 64-75.

(a) The mailings, which are concededly advertisements, refer to specific products, and are economically motivated, constitute commercial speech notwithstanding the fact that they contain discussions of important public issues such as the prevention of venereal disease and family planning. Pp. 64-68.

(b) Advertising for contraceptives not only im licates "substantial individual and societal interests" in the free flow of commercial information, but also relates to activity that is protected from unwarranted governmental interference. Thus, appellee's proposed commercial speech is clearly protected by the First Amendment. Pp. 69.

(c) Neither of the interests asserted by the Government—that § 3001(e)(2) shields recipients of mail from materials that they are likely to find offensive and aids parents' efforts to control the manner in which their children become informed about birth control—is sufficient to justify the sweeping prohibition on the mailing of unsolicited contraceptive advertisements. The fact that protected speech may be offensive to some persons does not justify its suppression, and, in any event, recipients of objectionable mailings can avoid further offensiveness simply by averting their eyes or disposing of the mailings in a trash can. While the second asserted interest is substantial, § 3001(e)(2) as a means of effectuating this interest fails to withstand scrutiny. The statute's marginal degree of protection afforded those parents who desire to keep their children from confronting such mailings is improperly achieved by purging all mailboxes of unsolicited material that is entirely suitable for adults. Section 3001(e)(2) is also defective because it denies parents

Page 61

truthful information bearing on their ability to discuss birth control and to make informed decisions in this area. Pp. 70-75.

526 F.Supp. 823 (1981), affirmed.

David A. Strauss, Washington, D.C., for appellants.

Jerold S. Solovy, Chicago, Ill., for appellee; Robert L. Graham and Laura A. Kaster, Chicago, Ill., with him on the brief.

Justice MARSHALL delivered the opinion of the Court.

Title 39 U.S.C. § 3001(e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. The District Court held that, as applied to appellee's mailings, the statute violates the First Amendment. We affirm.

I

Section 3001(e)(2) states that "[a]ny unsolicited advertisement of matter which is designed, adapted, or intended for preventing conception is nonmailable matter, shall not be carried or delivered by mail, and shall be disposed of as the Postal Service directs . . . ." ¹ As interpreted by Postal

Page 62

Service regulations,² the statutory provision does not apply to unsolicited advertisements in which the mailer has no commercial interest. In addition to the civil consequences of a violation of § 3001(e)(2), 18 U.S.C. § 1461 makes it a crime knowingly to use the mails for anything declared by § 3001(e) to be nonmailable.³

Appellee Youngs Drug Products C rporation (Youngs) is engaged in the manufacture, sale and distribution of contraceptives. Youngs markets its products primarily through sales to chain warehouses and wholesale distributors, who in turn sell contraceptives to retail pharmacists, who then sell those products to individual customers. Appellee publicizes the availability and desirability of its products by various methods. This litigation resulted from Youngs' decision to undertake a campaign of unsolicited mass mailings to members of the public. In conjunction with its wholesalers and retailers, Youngs seeks to mail to the public on an unsolicited basis three types of materials:

—multi-page, multi-item flyers promoting a large variety of products available at a drug store, including prophylactics;

—flyers exclusively or substantially devoted to promoting prophylactics;

—informational pamphlets discussing the desirability and availability of prophylactics in general or Youngs' products in particular.⁴

Page 63

In 1979 the Postal Service traced to a wholesaler of Youngs' products an allegation of an unsolicited mailing of contraceptive advertisements. The Service warned the wholesaler that the mailing violated 39 U.S.C. § 3001(e)(2). Subsequently, Youngs contacted the Service and furnished it with copies of Youngs' three types of proposed mailings, stating its view that the statute could not constitutionally restrict the mailings. The Service rejected Youngs' legal argument and notified the company that the proposed mailings would violate § 3001(e). Youngs then brought this action for declaratory and injunctive relief in the United States District Court for the District of Columbia. It claimed that the statute, as applied to its proposed mailings, violated the First Amendment and that Youngs and its wholesaler were refraining from distributing the advertisements because of the Service's warning.

The District Court determined that § 3001(e)(2), by its plain language, prohibited all three types of proposed mailings. The Court then addressed the constitutionality of the statute as applied to these mailings. Finding all three types of materials to be commercial solicitations, the Court considered the constitutionality of the statute within the framework established by this Court for analyzing restrictions imposed on commercial speech. The Court concluded that the statutory prohibition was more extensive than necessary to the interests asserted by the government, and

Page 64

it therefore held that the statute's absolute ban on the three type of mailings violated the First Amendment.⁵ Youngs Drug Products Corp. v. Bolger, 526 F.Supp. 823 (DDC 1981).

The Government brought this direct appeal pursuant to 28 U.S.C. § 1252, see United States v. Darusmont, 449 U.S. 292, 293, 101 S.Ct. 549, 550, 66 L.Ed.2d 513 (1981), and we noted probable jurisdiction, 456 U.S. 970, 102 S.Ct. 2231, 72 L.Ed.2d 843 (1982).

II

Beginning with Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), this Court extended the protection of the First Amendment to commercial speech.⁶ Nonetheless, our decisions have recognized "the 'commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456, 98 S.Ct. 1912, 1918-1919, 56 L.Ed.2d 444 (1978). Thus, we have held that the Constitution accords less protection to commercial speech than

Page 65

to other constitutionally safeguarded forms of expression. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 562-563, 100 S.Ct. 2343, 2349-2350, 65 L.Ed.2d 341 (1980); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-772, n. 24, 96 S.Ct. 1817, 1830-1831, n. 24, 48 L.Ed.2d 346 (1976).

For example, as a general matter, "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). With respect to noncommercial speech, this Court has sustained content-based restrictions only in the most extraordinary circumstances.⁷ See Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 538-539, 100 S.Ct. 2326, 2333-2334, 65 L.Ed.2d 319 (1980); Stone, Restrictions of Speech Because of its Content, 46 U.Chi. L.Rev. 81, 82 (1978). By contrast, regulation of commercial speech based on content is less problematic. In light of the greater potential for deception or confusion in the context of certain advertising messages, see In re R.M.J., 455 U.S. 191, 200, 102 S.Ct. 929, 936, 71 L.Ed.2d 64 (1982), content-based restrictions on commercial speech may be permissible. See Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979) (upholding prohibition on use of trade names by optometrists).

Because the degree of protection afforded by the First Amendment depends on whether the activity sought to be regulated constitutes commercial or non-commercial speech, we must first deter ine the proper classification of the mailings at issue here. Appellee contends that its proposed mailings constitute "fully protected" speech, so that § 3001(e)(2) amounts to an impermissible content-based re-

Page 66

striction on such expression.⁸ The Government argues,⁹ and the District Court held,¹⁰ that the proposed mailings are all commercial speech. The application of § 3001(e)(2) to appellee's proposed mailings must be examined carefully to ensure that speech deserving of greater constitutional protection is not inadvertently suppressed.¹¹

Most of appellee's mailings fall within the core notion of commercial speech—"speech which does 'no more than propose a commercial transaction.' " Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S., at 762, 96 S.Ct., at 1825, quoting Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376,...