Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 96 S. Ct. 1817 ( 1976 )

Mr. Justice Rehnquist,

dissenting.

The logical consequences of the Court's decision in this case, a decision which elevates commercial intercourse between a seller hawking his wares and a buyer seeking to strike a bargain to the same plane as has been previously reserved for the free marketplace of ideas, are far reaching indeed. Under the Court’s opinion the way will be open not only for dissemination of price information but for active promotion of prescription drugs, liquor, cigarettes, and other products the use of which it has previously been thought desirable to discourage. Now, however, such promotion is protected by the First Amendment so long as it is not misleading or does not promote an illegal product or enterprise. In coming to this conclusion, the Court has overruled a legislative determination that such advertising should not be allowed and has done so on behalf of a consumer group which is not directly disadvantaged by the statute in question. This effort to reach a result which the Court obviously considers desirable is a troublesome one, for two reasons. It extends standing to raise First Amendment claims beyond the previous decisions of this Court. It also extends the protection of that Amendment to purely commercial endeavors which its most vigorous champions on this Court had thought to be beyond its pale.

I

I do not find the question of the appellees’ standing to urge the claim which the Court decides quite as easy as the Court does. The Court finds standing on the part of the consumer appellees based upon a “right to 'receive information.’ ” Ante, at 757. Yet it has been stipulated in this case that the challenged statute does not prohibit anyone from receiving this information either in person or by phone. Ante, at 752, and n. 6. The statute forbids “only publish [ing], advertís [ing] or promot[ing]” prescription drugs.

While it may be generally true that publication of information by its source is essential to effective communication, it is surely less true, where, as here, the potential recipients of the information have, in the Court’s own words, a “keen, if not keener by far,” interest in it than “in the day’s most urgent political debate.” Ante, at 763. Appellees who have felt so strongly about their right to receive information as to litigate the issue in this lawsuit must also have enough residual interest in the matter to call their pharmacy and inquire.

The statute, in addition, only forbids pharmacists to publish this price information. There is no prohibition against a consumer group, such as appellees, collecting and publishing comparative price information as to various pharmacies in an area. Indeed they have done as much in their briefs in this case. Yet, though appellees could both receive and publish the information in question the Court finds that they have standing to protest that pharmacists are not allowed to advertise. Thus, contrary to the assertion of the Court, appellees are not asserting their “right to receive information” at all but rather the right of some third party to publish. In the cases relied upon by the Court, ante, at 756-757, the plaintiffs asserted their right to receive information which would not be otherwise reasonably available to them.^* They did not seek to assert the right of a third party, not before the Court, to disseminate information. Here, the only group truly restricted by this statute, the pharmacists, have not even troubled to join in this litigation and may well feel that the expense and competition of advertising is not in their interest.

II

Thus the issue on the merits is not, as the Court phrases it, whether “[o]ur pharmacist” may communicate the fact that he “will sell you the X prescription drug at the Y price.” No pharmacist is asserting any such claim to so communicate. The issue is rather whether appellee consumers may override the legislative determination that pharmacists should not advertise even though the pharmacists themselves do not object. In deciding that they may do so, the Court necessarily adopts a rule which cannot be limited merely to dissemination of price alone, and which cannot possibly be confined to pharmacists but must likewise extend to lawyers, doctors, and all other professions.

The Court speaks of the consumer’s interest in the free flow of commercial information, particularly in the case of the poor, the sick, and the aged. It goes on to observe that “society also may have a strong interest in the free flow of commercial information.” Ante, at 764. One need not disagree with either of these statements in order to feel that they should presumptively be the concern of the Virginia Legislature, which sits to balance these and other claims in the process of making laws such as the one here under attack. The Court speaks of the importance in a “predominantly free enterprise economy” of intelligent and well-informed decisions as to allocation of resources. Ante, at 765. While there is again much to be said for the Court’s observation as a matter of desirable public policy, there is certainly nothing in the United States Constitution which requires the Virginia Legislature to hew to the teachings of Adam Smith in its legislative decisions regulating the pharmacy profession. E. g., Nebbia v. New York, 291 U. S. 502 (1934); Olsen v. Nebraska, 313 U. S. 236 (1941).

As Mr. Justice Black, writing for the Court, observed in Ferguson v. Skrupa, 372 U. S. 726, 730 (1963):

“The doctrine . . . that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely — has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies who are elected to pass laws.”

Similarly in Williamson v. Lee Optical Co., 348 U. S. 483 (1955), the Court, in dealing with a state prohibition against the advertisement of eyeglass frames, held: “We see no constitutional reason why a State may not treat all who deal with the human eye as members of a profession who should use no merchandising methods for obtaining customers.” Id., at 490.

The Court addresses itself to the valid justifications which may be found for the Virginia statute, and apparently discounts them because it feels they embody a “highly paternalistic approach.” Ante, at 770. It concludes that the First Amendment requires that channels of advertising communication with respect to prescription drugs must be opened, and that Virginia may not keep “the public in ignorance of the entirely lawful terms that competing pharmacists are offering.” Ibid.

The Court concedes that legislatures may prohibit false and misleading advertisements, and may likewise prohibit advertisements seeking to induce transactions which are themselves illegal. In a final footnote the opinion tosses a bone to the traditionalists in the legal and medical professions by suggesting that because they sell services rather than drugs the holding of this case is not automatically applicable to advertising in those professions. But if the sole limitation on permissible state proscription of advertising is that it may not be false or misleading, surely the difference between pharmacists' advertising and lawyers' and doctors’ advertising can be only one of degree and not of kind. I cannot distinguish between the public’s right to know the price of drugs and its right to know the price of title searches or physical examinations or other professional services for which standardized fees are charged. Nor is it apparent how the pharmacists in this case are less engaged in a regulatable profession than were the opticians in Williamson, supra.

Nor will the impact of the Court’s decision on existing commercial and industrial practice be limited to allowing advertising by the professions. The Court comments that in labor disputes “it has long been settled that both the employee and the employer are protected by the First Amendment when they express themselves on the merits of the dispute in order to influence its outcome.” Ante, at 762. But the first case cited by the Court in support of this proposition, NLRB v. Gissel Packing Co., 395 U. S. 575, 617-618 (1969), falls a good deal short of supporting this general statement. The Court there said that “an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’ ” Id., at 618. This carefully guarded language is scarcely a ringing endorsement of even the second-class First Amendment rights which the Court has today created in commercial speech.

It is hard to see why an employer’s right to publicize a promise of benefit may be prohibited by federal law, so long as the promise is neither false nor deceptive, if pharmacists’ price advertising may not be prohibited by the Virginia Legislature. Yet such a result would be wholly inconsistent with established labor law.

Both the Courts of Appeals and the National Labor Relations Board have not hesitated to set aside representation elections in which the employer made statements which were undoubtedly truthful but which were found to be implicitly coercive. For instance, in NLRB v. Realist, Inc., 328 F. 2d 840 (CA7 1964), an election was set aside when the employer, in a concededly nonthreatening manner, raised the specter of plant closings which would result from unionism. In Oak Mfg. Co., 141 N. L. R. B. 1323, 1328-1330 (1963), the Board set aside an election where the employer stated “categorically” that the union “cannot and will not obtain any wage increase for you,” and with respect to seniority said that it could “assure” the employees that the union’s program “will be worse” than the present system. In Freeman Mfg. Co., 148 N. L. R. B. 577 (1964), the employer sent letters to employees in which he urged that unionization might cause customers to cease buying the company’s product because of delays and higher prices. The Board found this to be ground for invalidating the election. Presumably all of these holdings will require re-evaluation in the fight of today’s decision with a view toward allowing the employer’s speech because it is now protected by the First Amendment, as expanded by this decision.

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.

The Court insists that the rule it lays down is consistent even with the view that the First Amendment is “primarily an instrument to enlighten public decisionmaking in a democracy.” Ante, at 765, I had understood this view to relate to public decisionmaking as to political, social, and other public issues, rather than the decision of a particular individual as to whether to purchase one or another kind of shampoo. It is undoubtedly arguable that many people in the country regard the choice of shampoo as just as important as who may be elected to local, state, or national political office, but that does not automatically bring information about competing shampoos within the protection of the First Amendment. It is one thing to say that the line between strictly ideological and political commentaries and other kinds of commentary is difficult to draw, and that the mere fact that the former may have in it an element of commercialism does not strip it of First Amendment protection. See New York Times Co. v. Sullivan, 376 U. S. 254 (1964). But it is another thing to say that because that line is difficult to draw, we will stand at the other end of the spectrum and reject out of hand the observation of so dedicated a champion of the First Amendment as Mr. Justice Black that the protections of that Amendment do not apply to a “ ‘merchant’ who goes from door to door ‘selling pots.’ ” Breard v. City of Alexandria, 341 U. S. 622, 650 (1951) (dissenting).

In the case of “our” hypothetical pharmacist, he may now presumably advertise not only the prices of prescription drugs, but may attempt to energetically promote their sale so long as he does so truthfully. Quite consistently with Virginia law requiring prescription drugs to be available only through a physician, “our” pharmacist might run any of the following representative advertisements in a local newspaper:

“Pain getting you down? Insist that your physician prescribe Demerol. You pay a little more than for aspirin, but you get a lot more relief.”

“Can’t shake the flu? Get a prescription for Tetracycline from your doctor today.”

“Don’t spend another sleepless night. Ask your doctor to prescribe Seconal without delay.”

Unless the State can show that these advertisements are either actually untruthful or misleading, it presumably is not free to restrict in any way commercial efforts on the part of those who profit from the sale of prescription drugs to put them in the widest possible circulation. But such a line simply makes no allowance whatever for what appears to have been a considered legislative judgment in most States that while prescription drugs are a necessary and vital part of medical care and treatment, there are sufficient dangers attending their widespread use that they simply may not be promoted in the same manner as hair creams, deodorants, and toothpaste. The very real dangers that general advertising for such drugs might create in terms of encouraging, even though not sanctioning, illicit use of them by individuals for whom they have not been prescribed, or by generating patient pressure upon physicians to prescribe them, are simply not dealt with in the Court's opinion. If prescription drugs may be advertised, they may be advertised on television during family viewing time. Nothing we know about the acquisitive instincts of those who inhabit every business and profession to a greater or lesser extent gives any reason to think that such persons will not do everything they can to generate demand for these products in much the same manner and to much the same degree as demand for other commodities has been generated.

Both Congress and state legislatures have by law sharply limited the permissible dissemination of information about some commodities because of the potential harm resulting from those commodities, even though they were not thought to be sufficiently demonstrably harmful to warrant outright prohibition of their sale. Current prohibitions on television advertising of liquor and cigarettes are prominent in this category, but apparently under the Court’s holding so long as the advertisements are not deceptive they may no longer be prohibited.

This case presents a fairly typical First Amendment problem — that of balancing interests in individual free speech against public welfare determinations embodied in a legislative enactment. As the Court noted in American Communications Assn. v. Douds, 339 U. S. 382, 399 (1950):

“[Ilegitímate attempts to protect the public, not from the remote possible effects of noxious ideologies, but from the present excesses of direct, active conduct, are not presumptively bad because they interfere with and, in some of its manifestations, restrain the exercise of First Amendment rights.”

Here the rights of the appellees seem to me to be marginal at best. There is no ideological content to the information which they seek and it is freely available to them — they may even publish it if they so desire. The only persons directly affected by this statute are not parties to this lawsuit. On the other hand, the societal interest against the promotion of drug use for every ill, real or imaginary, seems to me extremely strong. I do not believe that the First Amendment mandates the Court’s “open door policy” toward such commercial advertising.

* The Court contends, ante, at 757-758, n. 15, that this case is indistinguishable from Procunier, Kleindienst, and Lament, in that in all of those cases it was possible for the parties to obtain the information on their own. In Procunier this would have entailed traveling to a state prison; in Kleindienst and Lamont, traveling abroad. Obviously such measures would limit access to information in a way that the requirement of a phone call or a trip to the comer drag-store would not.