Parties: Bolger v. Youngs Drug Prods. Corp.
Date: 1983-06-24
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Paragraph: 24 - Because the proscribed information N158* "may bear on one of the most important decisions" parents have a right to make, the restriction of "the free flow of truthful information" constitutes a "basic" constitutional defect regardless of the strength of the government's interest.
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Paragraph: 29 - N159* The right to use the mails is undoubtedly protected by the First Amendment, Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971). But because the home mailbox has features which distinguish it from a public hall or public park, where it may be assumed that all who are present wish to hear the views of the particular speaker then on the rostrum, it cannot be totally assimilated for purposes of analysis with these traditional public forums. Several people within a family or living group may have free access to a mailbox, including minor children; and obviously not every piece of mail received has been either expressly or impliedly solicited. It is the unsolicited mass mailings sent by respondents designed to promote the use of condoms that gives rise to this litigation.
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Phrase match: The right to use the mails
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Paragraph: 39 - N160* A prohibition on the use of the mails is a significant restriction of First Amendment rights. We have noted that N161* "[t]he United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues. . . ." Blount v. Rizzi, 400 U.S. 410, 416, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971), quoting Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437, 41 S.Ct. 352, 363, 65 L.Ed. 704 (1921) (Holmes, J., dissenting). And First Amendment freedoms would be of little value if speakers had to obtain permission of their audiences before advancing particular viewpoints.
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Phrase match: the right to use our tongues
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Paragraph: 46 - I have not yet been persuaded that the commercial motivation of an author is sufficient to alter the state's power to regulate speech. Anthony Comstock surely had a constitutional right to speak out against the use of contraceptives in his day. Like Comstock, many persons today are morally opposed to contraception, and the First Amendment commands the government to allow them to express their views in appropriate ways and in appropriate places.
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Paragraph: 50 - It matters whether a law regulates communications for their ideas or for their style. Governmental suppression of a specific point of view strikes at the core of First Amendment values. In contrast, regulations of form and context may strike a constitutionally appropriate balance between the advocate's right to convey a message and the recipient's interest in the quality of his environment:
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Paragraph: 10 - 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. Nonetheless, our decisions have recognized N72* "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 to other constitutionally safeguarded forms of expression.
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Paragraph: 11 - For example, as a general matter, N73* "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. 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.
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Paragraph: 13 - N74* >Youngs' informational pamphlets, however, cannot be characterized merely as proposals to engage in commercial transactions. Their proper classification as commercial or non-commercial speech thus presents a closer question. The mere fact that these pamphlets are conceded to be advertisements clearly does not compel the conclusion that they are commercial speech. See New York Times v. Sullivan, 376 U.S. 254, 265-266, 84 S.Ct. 710, 718-719, 11 L.Ed.2d 686 (1964). Similarly, the reference to a specific product does not by itself render the pamphlets commercial speech. See Associated Students v. Attorney General, 368 F.Supp. 11, 24 (CD Cal.1973). Finally, the fact that Youngs has an economic motivation for mailing the pamphlets would clearly be insufficient by itself to turn the materials into commercial speech. See Bigelow v. Virginia,
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Paragraph: 14 - The combination of all these characteristics, however, provides strong support for the District Court's conclusion that the informational pamphlets are properly characterized as commercial speech. The mailings constitute commercial speech notwithstanding the fact that they contain discussions of important public issues such as venereal disease and family planning. We have made clear that advertising which "links a product to a current public debate" is not thereby entitled to the constitutional protection afforded noncommercial speech.
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Paragraph: 16 - N43* "The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation." Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S., at 563, 100 S.Ct., at 2350. In Central Hudson we adopted a four-part analysis for assessing the validity of restrictions on commercial speech. First, we determine whether the expression is constitutionally protected. For commercial speech to receive such protection, N44* "it at least must concern lawful activity and not be misleading." Id., at 566, 100 S.Ct., at 2351. Second, we ask whether the governmental interest is substantial. If so, we must then determine whether the regulation directly advances the government interest asserted, and whether it is not more extensive than necessary to serve that interest. Ibid. Applying this analysis, we conclude that § 3001(e)(2) is unconstitutional as applied to appellee's mailings.
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Paragraph: 30 - Our earlier cases have developed an analytic framework for commercial speech cases. N144* "At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980).
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Paragraph: 17 - N145* Youngs' proposed commercial speech is therefore clearly protected by the First Amendment. Indeed, where—as in this case—a speaker desires to convey truthful information relevant to important social issues such as family planning and the prevention of venereal disease, we have previously found the First Amendment interest served by such speech paramount.
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Paragraph: 19 - In striking down a state prohibition of contraceptive advertisements in Carey v. Population Services International, supra, we stated that offensiveness was N146* "classically not [a] justificatio[n] validating the suppression of expression protected by the First Amendment. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression." 431 U.S., at 701, 97 S.Ct., at 2024. We specifically declined to recognize a distinction between commercial and noncommercial speech that would render this interest a sufficient justification for a prohibition of commercial speech.
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