Excerpt From Bolger v. Youngs
Drugs Products Corp., 463 U.S. 60 (1983), discussed on page 172 in the
“Because the degree of protection afforded by the First Amendment
depends on whether the activity sought to be regulated constitutes
commercial or noncommercial speech, we must first determine the proper
classification of the mailings at issue here. Appellee contends that
its proposed mailings constitute "fully protected" speech, so that
3001(e)(2) amounts to an impermissible content-based restriction on
such expression. Appellants argue, and the District Court held, that
the proposed mailings are all commercial speech. The application of
3001(e)(2) to appellee's proposed mailings must be examined carefully
to ensure that speech deserving of greater constitutional protection is
not inadvertently suppressed.
Most of appellee's mailings fall within the core notion of commercial
speech - "speech which does `no more than propose a commercial
transaction.'" Virginia Pharmacy Board v. Virginia Citizens Consumer
Council, Inc., supra, at 762, quoting Pittsburgh Press Co. v. Human
Relations Comm'n, 413 U.S. 376, 385 (1973). Youngs' informational
pamphlets, however, cannot be characterized merely as proposals to
engage in commercial transactions. Their proper classification as
commercial or noncommercial 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 Co. v. Sullivan, 376 U.S. 254, 265 -266 (1964).
Similarly, the reference to a specific product does not by itself
render the pamphlets commercial speech. See Associated Students for
Univ. of Cal. at Riverside v. Attorney General, 368 F. Supp. 11, 24
(C.D. 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, 421 U.S., at 818 ; Ginzburg v. United States, 383 U.S. 463,
474 (1966); Thornhill v. Alabama, 310 U.S. 88 (1940).
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. Central Hudson
Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S.
at 563 n. 5. A company has the full panoply of protections available to
its direct comments on public issues, so there is no reason for
providing similar constitutional protection when such statements are
made in the context of commercial transactions. Advertisers should not
be permitted to immunize false or misleading product information from
government regulation simply by including references to public issues.
We conclude, therefore, that all of the mailings in this case are
entitled to the qualified but nonetheless substantial protection
accorded to commercial speech.