Parties: Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council
Date: 1976-05-24
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Paragraph: 12 - N235* Freedom of speech presupposes a willing speaker. But where a speaker exists, as is the case here, the protection afforded is to the communication, to its source and to its recipients both. This is clear from the decided cases. In Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965), the Court upheld the First Amendment rights of citizens to receive political publications sent from abroad. More recently, in Kleindienst v. Mandel, 408 U.S. 753, 762-763, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683, 691 (1972), we acknowledged that this Court has referredo a First Amendment right to "receive information and ideas," and that freedom of speech " 'necessarily protects the right to receive.' " And in
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Paragraph: 12 - If there is a right to advertise, there is a reciprocal right to receive the advertising, and it may be asserted by these appellees.
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Paragraph: 19 - If there is a kind of commercial speech that lacks all First Amendment protection, therefore, it must be distinguished by its content. Yet the speech whose content deprives it of protection cannot simply be speech on a commercial subject.
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Paragraph: 20 - Our question is whether speech which does N103* "no more than propose a commercial transaction," Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S., at 385, 93 S.Ct., at 2558, 37 L.Ed.2d, at 677, is so removed from any N104* "exposition of ideas," Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1035 (1942), and from N105* "'truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government,'" Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498, 1506 (1957), that it lacks all protection. Our answer is that it is not.
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Paragraph: 47 - In Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805, the Court concluded that N79* "there is no constitutional value in false statements of fact." As the Court had previously recognized in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, however, factual errors are inevitable in free debate, and the imposition of liability for erroneous factual assertions can N80* "dampe(n) the vigor and limi(t) the variety of public debate" by inducing "self-censorship." Id., at 279, 84 S.Ct., at 725, 11 L.Ed.2d, at 706. In order to provide ample N81* "breathing space" for free expression, the Constitution places substantial limitations on the discretion of government to permit recovery for libelous communications.
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Paragraph: 13 - The appellants contend that the advertisement of prescription drug prices is outside the protection of the First Amendment because it is "commercial speech." There can be no question that in past decisions the Court has given some indication that commercial speech is unprotected. In Valentine v. Chrestensen, supra, the Court upheld a New York statute that prohibited the distribution of any "handbill, circular . . . or other advertising matter whatsoever in or upon any street." The Court concluded that, although the First Amendment would forbid the banning of all communication by handbill in the public thoroughfares, it imposed "no such restraint on government as respects purely commercial advertising." 316 U.S., at 54, 62 S.Ct., at 921, 86 L.Ed., at 1265. Further support for a "commercial speech" exception to the First Amendment may perhaps be found in Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), where the Court upheld a conviction for violation of an ordinance prohibiting door-to-door solicitation of magazine subscriptions. The Court reasoned: "The selling . . . brings into the transaction a commercial feature," and it distinguished Martin v. Struthers, supra, where it had reversed a conviction for door-to-door distribution of leaflets publicizing a religious meeting, as a case involving "no element of the commercial." 341 U.S., at 642-643, 71 S.Ct., at 932-933, 95 L.Ed., at 1248-1249. Moreover, the Court several times has stressed that communications to which First Amendment protection was given were Not "purely commercial."
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Paragraph: 15 - Last Term, in Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), the notion of unprotected "commercial speech" all but passed from the scene. We reversed a conviction for violation of a Virginia statute that made the circulation of any publication to encourage or promote the processing of an abortion in Virginia a misdemeanor. The defendant had published in his newspaper the availability of abortions in New York. The advertisement in question, in addition to announcing that abortions were legal in New York, offered the services of a rerral agency in that State. We rejected the contention that the publication was unprotected because it was commercial. Chrestensen's continued validity was questioned and its holding was described as "distinctly a limited one" that merely upheld "a reasonable regulation of the manner in which commercial advertising could be distributed." 421 U.S., at 819, 95 S.Ct., at 2231, 44 L.Ed.2d, at 610. We concluded that N93* "the Virginia courts erred in their assumptions that advertising, as such, was entitled to no First Amendment protection," and we observed that the N94* "relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas."
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Paragraph: 18 - It is clear, for example, that speech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement of one form or another. Buckley v. Valeo, 424 U.S. 1, 35-59, 96 S.Ct. 612, 642-654, 46 L.Ed.2d 659 (1976); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S., at 384, 93 S.Ct., at 2558, 37 L.Ed.2d, at 676; New York Times Co. v. Sullivan, 376 U.S., at 266, 84 S.Ct., at 718-719, 11 L.Ed.2d, at 698. Speech likewise is protected even though it is carried in a form that is "sold" for profit,
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Paragraph: 31 - In concluding that commercial speech, like other varieties, is protected, we of course do not hold that it can never be regulated in any way.
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Paragraph: 33 - Untruthful speech, commercial or otherwise, has never been protected for its own sake.
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Paragraph: 67 - There are undoubted difficulties with an effort to draw a bright line between "commercial speech" on the one hand and "protected speech" on the other, and the Court does better to face up to these difficulties than to attempt to hide them under labels. In this case, however, the Court has unfortunately substituted for the wavering line previously thought to exist between commercial speech and protected speech a no more satisfactory line of its own that between "truthful" commercial speech, on the one hand, and that which is "false and misleading" on the other. The difficulty with this line is not that it wavers, but on the contrary that it is simply too Procrustean to take into account the congeries of factors which I believe could, quite consistently with the First and Fourteenth Amendments, properly influence a legislative decision with respect to commercial advertising.
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