Bolger v. Youngs Drug Products Corp.

Appellant
The United States Postal Service
Appellee
Youngs Drug Products Corporation
Appellant's Claim
The postal service should be allowed to ban the mailing of unsolicited advertisements about condoms.
Chief Lawyer for Appellant
David A. Strauss
Chief Lawyers for Appellee
Jerold S. Solovy, Robert L. Graham, Laura A. Kaster
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Thurgood Marshall (writing for the Court), Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist, John PaulStevens, Byron R. White
Justices Dissenting
None (William J. Brennan, Jr., did not participate)
Place
Washington, D.C.
Date of Decision
24 June 1983
Decision
The postal service could not ban unsolicited advertisements for contraceptives.
Significance
The Supreme Court provided a definition of "commercial speech." It identifiedcriteria providing commercial speech with "qualified but substantial protection" under the First Amendment.
The Supreme Court has placed political speech at the heart of the First Amendment, which exists to promote informed self government. In part, the Court has protected artistic expression because it can serve as a vehicle for commentary on public issues. With this understanding of the amendment's purpose, theCourt had held flatly in Valentine v. Chrestensen (1942) that the Constitution "imposes no . . . restraint on government." regarding the street distribution of "purely commercial advertising."
Bolger and other cases during the 1970s and 1980s modified earlier rulings, and the Court limited government interference with advertising. For thefirst time, the Court directly defined the difference between commercial andpolitical speech. Although still not according it the absolute protection provided to political and artistic expression, the Court granted commercial speech substantial First Amendment protection.
Teaching Americans to Use Condoms
Youngs Drug Products Corporation manufactured, distributed, and sold condomsunder various brand names. Youngs marketed its products primarily through sales to wholesalers. The latter in turn sold them to retailer pharmacists who then provided them to individual customers.
Youngs used different techniques to publicize and promote its products. In conjunction with its wholesalers and retailers, the company decided to undertake a campaign of unsolicited mass mailings to members of the public. It planned to send out fliers promoting condoms and other drugstore products. It alsoplanned to mail purely informational pamphlets discussing the ways in which condoms can help prevent disease and facilitate family planning. These informational pamphlets would mention Youngs only at the end and solely as their sponsor.
Since 1873, federal law had prohibited the mailing of unsolicited advertisements for contraceptives. The postal service warned Youngs that its proposed mailings would violate this law. At Youngs request, the district court issued an injunction voiding the law, because it violated the company's First Amendment rights. The postal service appealed directly to the Supreme Court.
Political Speech and Commercial Speech
Eight justices affirmed the district court's decision, with Justice Marshallwriting the Court's opinion. Marshall's opinion directly addressed the characteristics distinguishing commercial speech. If the pamphlets were a form of political speech, they were fully protected by the Constitution and not subject to governmental regulation. If they were commercial in nature, then they enjoyed only a lesser and "qualified" degree of protection.
Marshall agreed with the district court that Youngs' proposed mailings all involved commercial speech. The company conceded that the informational pamphlets were advertisements. They referred to a specific product, and Young was mailing them for commercial reasons.
In isolation, no one of these three factors necessarily turned Youngs' pamphlets into commercial speech. However, because all three factors simultaneouslywere present, the pamphlets clearly were commercial. They did not become political speech merely because they mentioned health issues. "Advertising which`links a product to a current public debate' is not thereby entitled to theconstitutional protection afforded noncommercial speech."
Youngs' proposed mailings "fall within the core notion of commercial speech--`speech which does no more than propose a commercial transaction.'" As such,Marshall stressed, the mailings were entitled to the "qualified but nonetheless substantial protection accorded to commercial speech."
When the Government May Regulate Commercial Speech
Marshall advanced two criteria for determining whether commercial speech enjoys First Amendment protection. One must ask if the statements were illegal ordeceptive. They must also ask if banning the speech serves any substantial governmental interest.
In the case of commercial speech, the government can forbid advertising whichpromotes illegal and criminal acts. It also may outlaw "false, deceptive, ormisleading sales techniques." Justice Marshall found no deception in the Youngs mailings. Thus they were entitled to First Amendment protection under criterion one.
Marshall then considered whether prohibiting the mailings served any "substantial governmental interest." According to the government's attorneys, the banon mailing would serve two interests. A ban would shield people from materials they would likely find offensive. It would also help parents control how their children learned about important subjects such as birth control.
Marshall rejected both of these government arguments. On the first issue of offensiveness, Marshall noted that an individual could still ask advertisers not to send mail that he found "erotically arousing or sexually provocative."But the government could not suppress speech just because it was offensive tosome persons. In any event, those who were offended could avert their eyes or dispose of the mailings in a trash can.
Marshall found the second government interest more substantial. "Parents havean important `guiding role' to play in the upbringing of their children . .. which presumptively includes counseling them on important decisions." However, a universal ban on mailings is not an effective way of achieving this limited objective.
By stopping Youngs' mailings, the government would assist only those parentswho could not otherwise keep innocent children from confronting Young's pamphlets. To achieve this "marginal degree of protection," the government seeks to purge every mailbox of materials "entirely suitable for adults." But the government may not "reduce the adult population . . . to reading only what is fit for children." In addition, a ban on mailings would deny parents "truthfulinformation bearing upon their ability to discuss birth control and to makeinformed decisions."
Related Cases

• Valentine v. Chrestensen, 316 U.S. 52 (1942).
  
• National Life Ins. Co. v. Phillips Publishing, Inc., 793 F.Supp. 627 (1992).
  
• Gordon and Breach Science Publishers S.A. v. American Institute of Physics, 859 F.Supp. 1521 (1994).