Bolger v. Youngs Drug Products Corp.,

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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No. 81-1590 Argued: January 12, 1983 --- Decided: June 24, 1983

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Title 39 U.S.C. § 3001(e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. When appellee manufacturer of contraceptives proposed to mail to the public unsolicited advertisements including informational pamphlets promoting its products but also discussing venereal disease and family planning, the Postal Service notified appellee that the proposed mailings would violate § 3001(e)(2). Appellee then brought an action for declaratory and injunctive relief in Federal District Court, which held that the statute, as applied to the proposed mailings, violated the First Amendment.

Held: As applied to appellee's proposed mailings, § 3001(e)(2) is unconstitutional. Pp. 64-75.

(a) The mailings, which are concededly advertisements, refer to specific products, and are economically motivated, constitute commercial speech notwithstanding the fact that they contain discussions of important public issues such as the prevention of venereal disease and family planning. Pp. 64-68.

(b) Advertising for contraceptives not only implicates "substantial individual and societal interests" in the free flow of commercial information, but also relates to activity that is protected from unwarranted governmental interference. Thus, appellee's proposed commercial speech is clearly protected by the First Amendment. P. 69.

(c) Neither of the interests asserted by appellants -- that § 3001(e)(2) shields recipients of mail from materials that they are likely to find offensive and aids parents' efforts to control the manner in which their children become informed about birth control -- is sufficient to justify the sweeping prohibition on the mailing of unsolicited contraceptive advertisements. The fact that protected speech may be offensive to some persons does not justify its suppression, and, in any event, recipients of objectionable mailings can avoid further offensiveness simply by averting their eyes or disposing of the mailings in a trash can. While the second asserted interest is substantial, § 3001(e)(2), as a means of effectuating this interest, fails to withstand scrutiny. The statute's marginal degree of protection afforded those parents who desire to keep their children from confronting such mailings is improperly achieved by purging all mailboxes of unsolicited material that is entirely suitable for adults. Section 3001(e)(2) is also defective because it denies parents [p61] truthful information bearing on their ability to discuss birth control and to make informed decisions in this area. Pp. 70-75.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed an opinion concurring in the judgment, in which O'CONNOR, J., joined, post, p. 75. STEVENS, J., filed an opinion concurring in the judgment, post, p. 80. BRENNAN, J., took no part in the decision of the case.