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Bolger v. Youngs Drug Products Corp.

Supreme Court of the United States · 1983 · Constitutional Law

Constitutional LawFirst AmendmentCommercial Speechcommercial speechunsolicited mailcontraceptive advertisingFirst Amendmentcontent-based restriction

Facts

39 U.S.C. § 3001(e)(2) barred the mailing of unsolicited advertisements for contraceptives, and Postal Service regulations interpreted the statute not to apply to unsolicited advertisements in which the mailer had no commercial interest. Youngs, a manufacturer and distributor of contraceptives, proposed unsolicited mass mailings consisting of multi-item drugstore flyers including prophylactics, flyers devoted mainly or entirely to prophylactics, and informational pamphlets discussing condoms, venereal disease, family planning, and Youngs' products. After the Postal Service notified Youngs that these proposed mailings would violate the statute, Youngs sued, alleging the statute violated the First Amendment as applied to its mailings. The District Court found all three categories to be commercial speech and held the statute's absolute ban unconstitutional as applied.

Issue

Whether 39 U.S.C. § 3001(e)(2), which prohibits mailing unsolicited advertisements for contraceptives, violates the First Amendment as applied to Youngs' proposed unsolicited mailings. A threshold question was whether Youngs' flyers and informational pamphlets were commercial speech.

Rule

Speech may be treated as commercial speech when, taken together, it is advertising, refers to a specific product, and is economically motivated, even if no single factor alone is sufficient and even if the communication discusses important public issues. Restrictions on commercial speech are evaluated under Central Hudson: the speech must concern lawful activity and not be misleading; the government interest must be substantial; the regulation must directly advance that interest; and it must not be more extensive than necessary.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, Desert Harbor Wellness sells over-the-counter nicotine patches. It mails an unsolicited pamphlet titled "Smoking and Your Lungs" that discusses addiction risks, identifies several of its patch products by name, and was created to boost sales through local pharmacies.

How should a court most likely classify the pamphlet for First Amendment analysis?

Explanation. The majority held that no single factor alone is sufficient, but the combination of advertising format, product reference, and economic motivation strongly supports classifying speech as commercial. The inclusion of discussion about important public issues does not take the material out of the commercial-speech category. That reasoning applies here.