Va. Pharmacy Bd. v. Va. Consumer Council
425 U.S. 748 (1976)

Annotate this Case

U.S. Supreme Court

Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748 (1976)

Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Council, Inc.

No. 74-895

Argued November 11, 1975

Decided May 24, 1976

425 U.S. 748

Syllabus

Appellees, as consumers of prescription drugs, brought suit against the Virginia State Board of Pharmacy and its individual members, appellants herein, challenging the validity under the First and Fourteenth Amendments of a Virginia statute declaring it unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs. A three-judge District Court declared the statute void and enjoined appellants from enforcing it.

Held:

1. Any First Amendment protection enjoyed by advertisers seeking to disseminate prescription drug price information is also enjoyed, and thus may be asserted, by appellees as recipients of such information. Pp. 425 U. S. 756-757.

2. "Commercial speech" is not wholly outside the protection of the First and Fourteenth Amendments, and the Virginia statute is therefore invalid. Pp. 425 U. S. 761-773.

(a) That the advertiser's interest in a commercial advertisement is purely economic does not disqualify him from protection under the First and Fourteenth Amendments. Both the individual consumer and society in general may have strong interests in the free flow of commercial information. Pp. 425 U. S. 762-765.

(b) The ban on advertising prescription drug prices cannot be justified on the basis of the State's interest in maintaining the professionalism of its licensed pharmacists; the State is free to require whatever professional standards it wishes of its pharmacists, and may subsidize them or protect them from competition in other ways, but it may not do so by keeping the public in ignorance of the lawful terms that competing pharmacists are offering. Pp. 425 U. S. 766-770.

(c) Whatever may be the bounds of time, place, and manner restrictions on commercial speech, they are plainly exceeded by

Page 425 U. S. 749

the Virginia statute, which singles out speech of a particular content and seeks to prevent its dissemination completely. Pp. 425 U. S. 770-771.

(d) No claim is made that the prohibited prescription drug advertisements are false, misleading, or propose illegal transactions, and a State may not suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients. Pp. 425 U. S. 771-773.

373 F.Supp. 683, affirmed.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, and POWELL, JJ., joined. BURGER, C.J., post, p. 425 U. S. 773, and STEWART, J., post, p. 425 U. S. 775, filed concurring opinions. REHNQUIST, J., filed a dissenting opinion, post, p. 425 U. S. 781. STEVENS, J., took no part in the consideration or decision of the case.

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Primary Holding

The First Amendment is intended to protect the hearers as well as the speakers of protected speech, so it protects commercial speech because consumers have an interest in the free flow of advertising information.

Facts

Consumer Council was an organization of Virginia residents who require prescription drugs. Statistics suggested that drugs sold in the state varied dramatically in price depending on the store. Consumer Council thus brought an action to challenge a Virginia law that prohibited licensed pharmacists from advertising the prices of prescription drugs. They argued that the law violated their First Amendment rights and prevailed in the lower courts. However, the Pharmacy Board argued on appeal that this type of commercial speech is not covered by the First Amendment.

Opinions

Majority

  • Harry Andrew Blackmun (Author)
  • Warren Earl Burger
  • William Joseph Brennan, Jr.
  • Potter Stewart
  • Byron Raymond White
  • Thurgood Marshall
  • Lewis Franklin Powell, Jr.

The time has come to abandon the traditional rule that commercial speech is not protected by the First Amendment. It still may be regulated according to the time, place, and manner of its dissemination, while states also may prohibit illegal or misleading forms of speech. However, speech may be subject to constitutional deference as long as it is information, even if it is not an elevated form of discourse.

Dissent

  • William Hubbs Rehnquist (Author)

This case presents a problematic standing issue because the law is being challenged by a group asserting the right of a third party to publish certain information rather than their own right to receive it. The legislature also should be allowed to regulate advertising in the health care area under the state police powers, rather than being restricted to prohibiting commercial speech that is misleading or illegal.

Concurrence

  • Warren Earl Burger (Author)

Concurrence

  • Potter Stewart (Author)

Recused

  • John Paul Stevens (Author)

Case Commentary

Regulations of commercial speech receive a lesser degree of scrutiny than regulations of political speech, as long as a legitimate government interest is involved. The government is more likely to have a substantial interest in this area than in political speech, so a broader range of regulations will be found valid. Still, it has the burden of proof in showing that the interest exists and that it has not overly burdened speech in protecting it.

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