Since the mid-1970s, it has been clear that commercial speech can be protected free speech under the First Amendment. However, it is typically accorded lesser protection than noncommercial speech. Thus, classifying a particular message as commercial or noncommercial is important. In Bolger, the Supreme Court developed principles relevant to such classification.
Youngs Drug Products Corporation (‘‘Youngs’’) manufactured, sold, and distributed contraceptives. It publicized its products by various means, including unsolicited mass mailings to the public. The Postal Service notified Youngs that its mailings violated then existing federal statutes prohibiting the mailing of unsolicited advertisements for contraceptives. Youngs brought suit, challenging the constitutionality of the statute.
Applying its decision in Virginia State Board of Pharmacy, the Supreme Court held that most of the Youngs mailings were commercial speech because they were ‘‘speech which does no more than propose a commercial transaction.’’ However, some of the Youngs materials contained discussions of important public issues such as family planning and venereal disease and so presented a closer classification question.
The Bolger Court offered no bright line but discussed a number of considerations. The mere fact that the pamphlets were advertising did not compel the conclusion that they were commercial speech, nor did the fact that they referred to a specific product, nor did the fact that Youngs had an economic motivation. However, the combination of all of those facts strongly supported the commercial nature of the speech. The Court stated that advertising is not noncommercial speech simply because it ‘‘links a product to a current public debate.’’
Despite characterizing Youngs’s advertising as commercial speech, the Court held that the statute was unconstitutional as applied. The Court applied the Central Hudson four-part analysis: (1) whether the speech concerns a lawful activity and is not misleading, (2) whether the government has a substantial interest, (3) whether the regulation directly advances that interest, and (4) whether the regulation is more extensive than necessary to serve that interest.
Under this analysis, Youngs’s advertising was protected. The Court noted that advertising for contraceptives entails ‘‘substantial individual and societal interests’’ and relates to activity that is protected from unwarranted governmental interference. Further, neither of the two interests asserted by the government justified sweeping prohibition of mailing unsolicited contraceptive advertising. First, the fact that some recipients may find the material offensive was insufficient, especially since the recipients could simply avert their eyes or dispose of the mailings. Second, aiding parents’ efforts to control the manner in which their children become informed about birth control is a substantial interest. However, the marginal benefit provided by the statute in that regard came at the cost of suppressing material entirely suitable for adults. Moreover, the statute denied parents truthful information bearing on their ability to discuss birth control and to make informed decisions about it.
JANET W. STEVERSON and STEVE R. JOHNSON
References and Further Reading
Cases and Statutes Cited
See also Free Speech in Private Corporations; Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980); Commercial Speech; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)