Bolger v. Youngs Drug Products Corp.

Marshall advanced two criteria for determining whether commercial speech enjoys First Amendment protection. One must ask if the statements were illegal or deceptive. They must also ask if banning the speech serves any substantial governmental interest.

In the case of commercial speech, the government can forbid advertising which promotes illegal and criminal acts. It also may outlaw "false, deceptive, or misleading 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 ban on 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 to some 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 have an 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 parents who 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 "truthful information bearing upon their ability to discuss birth control and to make informed decisions."