Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)

Supreme Court decisions before the mid-1970s seemed to indicate that Commercial Speech does not receive First Amendment protection. The 1975 Bigelow case and the Virginia State Board case put those earlier decisions to rest. On First Amendment grounds, as applied to the states through the Fourteenth Amendment, the Court invalidated a state statute declaring it unprofessional conduct for a licensed pharmacist to advertise prices of prescription drugs.

The Court rejected a variety of proffered justifications for the statute. The justifications involved ‘‘the State’s protectiveness of its citizens [which] rests in large measure on the advantages of their being kept in ignorance.’’ The Court rejected this ‘‘highly paternalistic approach.’’

Virginia State Board did not precisely define the differences between commercial and nonCommercial Speech. Nor did it delineate precisely how much First Amendment protection Commercial Speech receives. Subsequent cases, such as Ohralik and Central Hudson, established that Commercial Speech receives an intermediate degree of First Amendment protection, tested under a four-part analysis: (1) whether the speech relates to a legal activity and is not misleading, (2) whether the government has a substantial interest in restricting the speech, (3) whether the restriction effectively advances that interest, and (4) whether the restriction is broader than required to advance that interest.

Many subsequent decisions, such as the Posadas, Fox, 44 Liquormart, Greater New Orleans Broadcasting, and Lorillard cases, have applied Virginia State Board—not always consistently. The precise contours of the Commercial Speech doctrine are not fully settled.

STEVE R. JOHNSON

References and Further Reading

• Annotation, Protection of Commercial Speech under First Amendment—Supreme Court Cases, 164 American Law Reports Federal 1.
• Symposium, Nike v. Kasky and the Modern Commercial Speech Doctrine, Case Western Reserve Law Review 54 (2004): 4: 965–1299.
• Tribe, Laurence H. American Constitutional Law. 2nd ed., Mineola, NY: Foundation, 1988, pp. 890–904.

Cases and Statutes Cited

• Bigelow v. Virginia, 421 U.S. 809 (1975)
• Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978)
• Central Hudson Gas & Electric Corp v. Public Service Commission, 447 U.S. 557 (1980)
• Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986)
• Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989)
• 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)
• Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173 (1999)
• Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001)

See also Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983)