Excerpt From Bolger v. Youngs Drugs Products Corp., 463 U.S. 60 (1983), discussed on page 172 in the caseboook.

“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.