Bolger v. Youngs Drug Products Corp.

Eight justices affirmed the district court's decision, with Justice Marshall writing 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 simultaneously were 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 the constitutional 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."