Bolger v. Youngs Drug Products Corp.

delivered the opinion of the Court. Title 39 U. S. C. § 3001 (e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. The District Court held that, as applied to appellee’s mailings, the statute violates the First Amendment. We affirm.

Section 3001(e)(2) states that “[a]ny unsolicited advertisement of matter which is designed, adapted, or intended for preventing conception is nonmailable matter, shall not be carried or delivered by mail, and shall be disposed of as the Postal Service directs . . . ,”^[1] As interpreted by Postal

Appellee Youngs Drug Products Corp. (Youngs) is engaged in the manufacture, sale, and distribution of contraceptives. Youngs markets its products primarily through sales to chain warehouses and wholesale distributors, who in turn sell contraceptives to retail pharmacists, who then sell those products to individual customers. Appellee publicizes the availability and desirability of its products by various methods. This litigation resulted from Youngs’ decision to undertake a campaign of unsolicited mass mailings to members of the public. In conjunction with its wholesalers and retailers, Youngs seeks to mail to the public on an unsolicited basis three types of materials:

—multi-page, multi-item flyers promoting a large variety of products available at a drugstore, including prophylactics;

—flyers exclusively or substantially devoted to promoting prophylactics;

—informational pamphlets discussing the desirability and availability of prophylactics in general or Youngs’ products in particular.^[4]

Appellants brought this direct appeal pursuant to 28 U. S. C. § 1252 , see United States v. Darusmont, 449 U. S. 292 , 293 (1981), and we noted probable jurisdiction, 456 U. S. 970 (1982).

Beginning with Bigelow v. Virginia, 421 U. S. 809 (1975), this Court extended the protection of the First Amendment to commercial speech.^[6] Nonetheless, our decisions have recognized “the ‘common-sense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Ohralik v. Ohio State Bar Assn., 436 U. S. 447 , 455-456 (1978). Thus, we have held that the Constitution accords less protection to commercial speech than

For example, as a general matter, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Department of Chicago v. Mosley, 408 U. S. 92 , 95 (1972). With respect to noncommercial speech, this Court has sustained content-based restrictions only in the most extraordinary circumstances.^[7] See Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530 , 538-539 (1980); Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev. 81 , 82 (1978). By contrast, regulation of commercial speech based on content is less problematic. In light of the greater potential for deception or confusion in the context of certain advertising messages, see In re R. M. 455 U. S. 191 , 200 (1982), content-based restrictions on commercial speech may be permissible. See Friedman v. Rogers, 440 U. S. 1 (1979) (upholding prohibition on use of trade names by optometrists).

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 re

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).^[12] 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.^[13] See Associated Students for Univ. of Cal. at Riverside v. Attorney General,

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.^[14] The mailings constitute commercial speech notwithstanding the fact that they contain discussions

We conclude, therefore, that all of the mailings in this case are entitled to the qualified but nonetheless substantial protection accorded to commercial speech.

p-H I — I I — I

The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.” Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S., at 563. In Central Hudson we adopted a four-part analysis for assessing the validity of restrictions on commercial speech. First, we determine whether the expression is constitutionally protected. For commercial speech to receive such protection, “it at least must concern lawful activity and not be misleading.” Id., at 566. Second, we ask whether the governmental interest is

We turn first to the protection afforded by the First Amendment. The State may deal effectively with false, deceptive, or misleading sales techniques. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 771-772 . The State may also prohibit commercial speech related to illegal behavior. Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S., at 388 . In this case, however, appellants have never claimed that Youngs’ proposed mailings fall into any of these categories. To the contrary, advertising for contraceptives not only implicates “‘substantial individual and societal interests’” in the free flow of commercial information, but also relates to activity which is protected from unwarranted state interference. See Carey v. Population Services International, 431 U. S. 678 , 700-701 (1977), quoting Virginia Pharmacy Board, supra, at 760, 763-766 .^[17] Youngs’ proposed commercial speech is therefore clearly protected by the First Amendment. Indeed, where — as in this case — a speaker desires to convey truthful information relevant to important social issues such as family planning and the prevention of venereal disease, we have previously found the First Amendment interest served by such speech paramount. See Carey v. Population Services International, supra; Bigelow v. Virginia, supra.^[18]

In particular, appellants assert that the statute (1) shields recipients of mail from materials that they are likely to find offensive and (2) aids parents’ efforts to control the manner in which their children become informed about sensitive and important subjects such as birth control.^[22] The first of these interests carries little weight. In striking down a state prohibition of contraceptive advertisements in Carey v. Population Services International, supra, we stated that offensiveness was “classically not [a] justificatio[n] validating the suppression of expression protected by the First Amendment. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression.” 431 U. S., at 701 .^[23] We specifically declined to recognize a dis

Recognizing that their reliance on this interest is “problematic,”^[24] appellants attempt to avoid the clear import of Carey by emphasizing that § 3001(e)(2) is aimed at the mailing of materials to the home. We have, of course, recognized the important interest in allowing addressees to give notice to a mailer that they wish no further mailings which, in their sole discretion, they believe to be erotically arousing or sexually provocative. See Rowan v. Post Office Department, 397 U. S. 728 , 737 (1970) (upholding the constitutionality of 39 U. S. C. §3008 ).^[25] But we have never held that the Government itself can shut off the flow of mailings to protect those recipients who might potentially be offended. The First Amendment “does not permit the government to prohibit speech as intrusive unless the ‘captive’ audience cannot avoid objectionable speech.” Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S., at 542. Recipients of objectionable mailings, however, may “‘effectively avoid further bombardment of their sensibilities simply by averting their eyes.’” Ibid., quoting Cohen v. California, 403 U. S. 15 , 21 (1971). Consequently, the “short, though regular, journey from mail box to trash can ... is an acceptable burden, at least so far as the Constitution is concerned.” Lamont v. Commissioner of Motor Vehicles, 269 F. Supp. 880 , 883 (SDNY), summarily aff’d, 386 F. 2d 449 (CA2 1967), cert. denied, 391 U. S. 915 (1968).

To begin with, § 3001(e)(2) provides only the most limited incremental support for the interest asserted. We can reasonably assume that parents already exercise substantial control over the disposition of mail once it enters their mailboxes. Under 39 U. S. C. § 3008 , parents can also exercise control over information that flows into their mailboxes. And parents must already cope with the multitude of external stimuli that color their children’s perception of sensitive subjects.^[26] Under these circumstances, a ban on unsolicited advertisements serves only to assist those parents who desire to keep their children from confronting such mailings, who are otherwise unable to do so, and whose children have remained relatively free from such stimuli.

This marginal degree of protection is achieved by purging all mailboxes of unsolicited material that is entirely suitable for adults. We have previously made clear that a restriction of this scope is more extensive than the Constitution permits, for the government may not “reduce the adult population. . . to reading only what is fit for children.” Butler v. Michigan,

Section 3001(e)(2) is also defective because it denies to parents truthful information bearing on their ability to discuss birth control and to make informed decisions in this area.^[30]

The first of these interests is undoubtedly substantial. Contraception is an important and sensitive subject, and parents may well prefer that they provide their children with information on contraception in their own way. “[P]arents have an important ‘guiding role’ to play in the upbringing of their children . . . which presumptively includes counseling them on important decisions.” H. L. v. Matheson, 450 U. S. 398 , 410 (1981), quoting Bellotti v. Baird, 443 U. S. 622 , 637 (1979). For this reason, among others, “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. . . . The legislature could properly conclude that parents . . . , who have this primary responsibility for children’s well being are entitled to the support of laws designed to aid discharge of that responsibility.” Ginsberg v. New York, 390 U. S. 629 , 639 (1968).

The second interest advanced by the Postal Service is also substantial. We have often recognized that individuals have a legitimate “right to be left alone” “in the privacy of the home,” FCC v. Pacifica Foundation, 438 U. S. 726 , 748

The questions whether § 3001(e)(2) directly advances these interests, and whether it is more extensive than necessary, are more problematic. Under 39 U. S. C. § 3008 , an individual can have his name removed from Youngs’ mailing list if he so wishes. See Rowan v. Post Office Dept., supra (holding §3008 constitutional). Thus, individuals are able to avoid the information in Youngs’ advertisements after one exposure. Furthermore, as we noted in Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530 , 542 (1980), the recipient of Youngs’ advertising “may escape exposure to objectionable material simply by transferring [it] from envelope to wastebasket.”^[2] Therefore a mailed advertisement is significantly less intrusive than the daytime broadcast at issue in Pacifica or the sound truck at issue in Kovacs v. Cooper, 336 U. S. 77 (1949). See Consolidated Edison, 447 U. S., at 542-543. Where the recipients can “ ‘effectively avoid further bombardment of their sensibilities simply by averting their eyes,’” id., at 542, quoting Cohen v. California, 403 U. S. 15 , 21 (1971), a more substantial governmental interest is necessary to justify restrictions on speech.

Section 3001(e)(2) is also broader than is necessary because it completely bans from the mail unsolicited materials that are suitable for adults. The Government may not “reduce the adult population ... to reading only what is fit for children.” Butler v. Michigan, 352 U. S. 380 , 383 (1957). Narrower restrictions, such as the provisions of 39 U. S. C. §3008 and restrictions of the kind suggested by the District Court in this case, can fully serve the Government’s interests.

The Postal Service argues that Youngs can obtain permission to send its advertisements by conducting a “premailing.” Youngs could send letters to the general public, asking whether they would be willing to receive information about contraceptives, and send advertisements only to those who respond. In a similar vein, the Postal Service argues that Youngs can communicate with the public otherwise than through the mail.^[3] Both of these arguments fall wide of the

Thus, under this Court’s cases the intrusion generated by Youngs’ proposed advertising is relatively small, and the restriction imposed by § 3001(e)(2) is relatively large. Although this restriction directly advances weighty governmental interests, it is somewhat more extensive than is necessary to serve those interests. On balance I conclude that this restriction on Youngs’ commercial speech^[4] has not been adequately justified. Section 3001(e)(2) therefore violates the First Amendment as applied to Youngs and to material of the type Youngs has indicated that it plans to send, and I agree that the judgment of the District Court should be affirmed.

concurring in the judgment.

Two aspects of the Court’s opinion merit further comment: (1) its conclusion that all of the communications at issue are properly classified as “commercial speech” (ante, at 68); and (2) its virtually complete rejection of offensiveness as a possi

Even if it may not intend to do so, the Court’s opinion creates the impression that “commercial speech” is a fairly definite category of communication that is protected by a fairly definite set of rules that differ from those protecting other categories of speech. That impression may not be wholly warranted. Moreover, as I have previously suggested, we must be wary of unnecessary insistence on rigid classifications, lest speech entitled to “constitutional protection be inadvertently suppressed.” Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557 , 579 (1980) (Stevens, J., concurring in judgment).

I agree, of course, that the commercial aspects of a message may provide a justification for regulation that is not present when the communication has no commercial character. The interest in protecting consumers from commercial harm justifies a requirement that advertising be truthful; no such interest applies to fairy tales or soap operas. But advertisements may be complex mixtures of commercial and noncommercial elements: the noncommercial message does not obviate the need for appropriate commercial regulation (see ante, at 68); conversely, the commercial element does not necessarily provide a valid basis for noncommercial censorship.

Appellee’s pamphlet entitled “Plain Talk about Venereal Disease” highlights the classification problem. On the one hand, the pamphlet includes statements that implicitly extol the quality of the appellee’s products.^[1] A law that protects

I have not yet been persuaded that the commercial motivation of an author is sufficient to alter the state’s power to regulate speech. Anthony Comstock surely had a constitutional right to speak out against the use of contraceptives in his day. Like Comstock, many persons today are morally opposed to contraception, and the First Amendment commands the government to allow them to express their views in appropriate ways and in appropriate places. I believe that Amendment affords the same protection to this appellee’s views regarding the hygienic and family planning advantages of its contraceptive products.

Because significant speech so often comprises both commercial and noncommercial elements, it may be more fruitful to focus on the nature of the challenged regulation rather

Assuming that this case deals only with commercial speech, the Court implies, if it does not actually hold, that the fact that protected speech may be offensive to some persons is not a “sufficient justification for a prohibition of commercial speech.” Ante, at 72. I think it essential to emphasize once again, however, that

“a communication may be offensive in two different ways. Independently of the message the speaker intends to convey, the form of his communication may be offensive — perhaps because it is too loud or too ugly in a particular setting. Other speeches, even though elegantly phrased in dulcet tones, are offensive simply because the listener disagrees with the speaker’s message.” Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530 , 546-548 (1980) (Stevens, J., concurring in judgment) (footnotes omitted).

“The fact that the advertising of a particular subject matter is sometimes offensive does not deprive all such advertising of First Amendment protection; but it is equally clear to me that the existence of such protection does not deprive the State of all power to regulate such advertising in order to minimize its offensiveness. A picture which may appropriately be included in an instruction book may be excluded from a billboard.” Carey v. Population Services International, 431 U. S. 678 , 717 (1977) (opinion of Stevens, J.).

The statute at issue in this case censors ideas, not style. It prohibits appellee from mailing any unsolicited advertisement of contraceptives, no matter how unobtrusive and tactful; yet it permits anyone to mail unsolicited advertisements of devices intended to facilitate conception, no matter how coarse or grotesque. It thus excludes one advocate from a forum to which adversaries have unlimited access. I concur in the Court’s judgment that the First Amendment prohibits the application of the statute to these materials.