| Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.
(No. 74-895)
___ |
||||
|---|---|---|---|---|
| Syllabus
| Opinion
[ Blackmun ] | Concurrence
[ Burger ] | Concurrence
[ Stewart ] | Dissent
[ Rehnquist ] |
| HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version |
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
MR. JUSTICE STEWART, concurring.
In Thornhill v. Alabama, 310 U.S. 88, the Court observed that
[f]reedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.
Id. at 102. Shortly after the Thornhill decision, the Court identified a single category of communications that is constitutionally unprotected: communications "which, by their very utterance, inflict [p776] injury." Chaplinsky v. New Hampshire, 315 U.S. 568, 572. Yet only a month after Chaplinsky, and without reference to that decision, the Court stated in Valentine v. Chrestensen, 316 U.S. 52, 54, that "the Constitution imposes no such restraint on government as respects purely commercial advertising." For more than 30 years, this "casual, almost off-hand" statement in Chrestensen has operated to exclude commercial speech from the protection afforded by the First Amendment to other types of communication. Cammarano v. United States, 358 U.S. 498, 514 (Douglas, J., concurring). [n1]
Today the Court ends the anomalous situation created by Chrestensen and holds that a communication which does no more than propose a commercial transaction is not "wholly outside the protection of the First Amendment." Ante at 761. But since it is a cardinal principle of the First Amendment that "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content," [n2] the Court's decision calls into immediate question the constitutional legitimacy of every state and federal law regulating false or deceptive advertising. I write separately to explain why I think today's decision does not preclude such governmental regulation. [p777]
The Court has, on several occasions, addressed the problem posed by false statements of fact in libel cases. Those cases demonstrate that, even with respect to expression at the core of the First Amendment, the Constitution does not provide absolute protection for false factual statements that cause private injury. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, the Court concluded that "there is no constitutional value in false statements of fact." As the Court had previously recognized in 418 U.S. 323, 340, the Court concluded that "there is no constitutional value in false statements of fact." As the Court had previously recognized in New York Times Co. v. Sullivan, 376 U.S. 254, however, factual errors are inevitable in free debate, and the imposition of liability for erroneous factual assertions can "dampe[n] the vigor and limi[t] the variety of public debate" by inducing "self-censorship." Id. at 279. In order to provide ample "breathing space" for free expression, the Constitution places substantial limitations on the discretion of government to permit recovery for libelous communications. See Gertz v. Robert Welch, Inc., supra at 347-349.
The principles recognized in the libel decisions suggest that government may take broader action to protect the public from injury produced by false or deceptive price or product advertising than from harm caused by defamation. In contrast to the press, which must often attempt to assemble the true facts from sketchy and sometimes conflicting sources under the pressure of publication deadlines, the commercial advertiser generally knows the product or service he seeks to sell and is in a position to verify the accuracy of his factual representations before he disseminates them. The advertiser's access to the truth about his product and its price substantially eliminates any danger that governmental regulation of false or misleading price or product advertising will chill accurate and nondeceptive commercial expression. There [p778] is, therefore, little need to sanction "some falsehood in order to protect speech that matters." Id. at 341.
The scope of constitutional protection of communicative expression is not universally inelastic. In the area of labor relations, for example, the Court has recognized that
an employer's free speech right to communicate his views to his employees is firmly established, and cannot be infringed by a union or the National Labor Relations Board.
NLRB v. Gissel Packing Co., 395 U.S. 575, 617. See NLRB v. Virginia Electric & Power Co., 314 U.S. 469. Yet, in that context, the Court has concluded that the employer's freedom to communicate his views to his employees may be restricted by the requirement that any predictions "be carefully phrased on the basis of objective fact." [n3] 395 U.S. at 618. In response to the contention that the "line between so-called permitted predictions and proscribed threats is too vague to stand up under traditional First Amendment analysis," the Court relied on the employer's intimate knowledge of the employer employee relationship and his ability to "avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees." [p779] Id. at 620. Cf. United States v. 9 Barrels of Vinegar, 265 U.S. 438, 443 ("It is not difficult to choose statements, designs and devices which will not deceive"). Although speech in the labor relations setting may be distinguished from commercial advertising, [n4] the Gissel Packing Co. opinion is highly significant in the present context because it underscores the constitutional importance of the speaker's specific and unique knowledge of the relevant facts and establishes that a regulatory scheme monitoring "the impact of utterances" is not invariably inconsistent with the First Amendment. [n5] See 395 U.S. at 620.
The Court's determination that commercial advertising of the kind at issue here is not "wholly outside the protection of" the First Amendment indicates by its very phrasing that there are important differences between commercial price and product advertising, on the one hand, and ideological communication, on the other. See ante at 771-772, n. 24. Ideological expression, be it oral, literary, pictorial, or theatrical, is integrally related to the exposition of thought -- thought that may shape our concepts of the whole universe of man. Although such expression may convey factual information relevant to social and individual decisionmaking, it is protected by [p780] the Constitution, whether or not it contains factual representations and even if it includes inaccurate assertions of fact. Indeed, disregard of the "truth" may be employed to give force to the underlying idea expressed by the speaker. [n6] "Under the First Amendment, there is no such thing as a false idea," and the only way that ideas can be suppressed is through "the competition of other ideas," Gertz v. Robert Welch, Inc., 418 U.S. at 339-340.
Commercial price and product advertising differs markedly from ideological expression because it is confined to the promotion of specific goods or services. [n7] The First Amendment protects the advertisement because of the "information of potential interest and value" conveyed, Bigelow v. Virginia, 421 U.S. 809, 822, rather than because of any direct contribution to the interchange of ideas. See ante at 762-765, 770. [n8] Since the factual claims contained in commercial price or product advertisements relate to tangible goods or services, they may be tested empirically and corrected to reflect the truth without in any manner jeopardizing the free dissemination [p781] of thought. Indeed, the elimination of false and deceptive claims serves to promote the one facet of commercial price and product advertising that warrants First Amendment protection -- its contribution to the low of accurate and reliable information relevant to public and private decisionmaking.
1. In recent years, the soundness of the sweeping language of the Chrestensen opinion has been repeatedly questioned. See Bigelow v. Virginia, 421 U.S. 809"]421 U.S. 809, 819-821; 421 U.S. 809, 819-821; Lehman v. City of Shaker Heights, 418 U.S. 298, 418 U.S. 314"]314-315, and n. 6 (BRENNAN, J., dissenting); 314-315, and n. 6 (BRENNAN, J., dissenting); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 398 (Douglas, J., dissenting); id. at 401, and n. 6 (STEWART, J., dissenting); Dun & Bradstreet, Inc. v. Grove, 404 U.S. 898, 904-906 (Douglas, J., dissenting from denial of certiorari).
2. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95. See, e.g., Hudgens v. NLRB, 424 U.S. 507, 520; Erznoznik v. City of Jacksonville, 422 U.S. 205, 209; Pell v. Procunier, 417 U.S. 817, 828; Grayned v. City of Rockford, 408 U.S. 104, 115.
3. Speech by an employer or a labor union organizer that contains material misrepresentations of fact or appeals to racial prejudice may form the basis of an unfair labor practice or warrant the invalidation of a certification election. See, e.g., Sewell Mfg. Co., 138 N.L.R.B. 66; United States Gypsum Co., 130 N.L.R.B. 901; Gummed Products Co., 112 N.L.R.B. 1092. Such restrictions would clearly violate First Amendment guarantees if applied to political expression concerning the election of candidates to public office. See Vanasco v. Schwartz, 401 F.Supp. 87 (EDNY) (three-judge court), summarily aff'd sub nom. Schwartz v. Postel, 423 U.S. 1041. Other restrictions designed to promote antiseptic conditions in the labor relations context, such as the prohibition of certain campaigning during the 24-hour period preceding the election, would be constitutionally intolerable if applied in the political arena. Compare Peerless Plywood Co., 107 N.L.R.B. 427, with Mills v. Alabama, 384 U.S. 214.
4. In the labor relations area, governmental regulation of expression by employers has been justified in part by the competing First Amendment associational interests of employees and by the economic dependence of employees on their employers. See NLRB v. Gissel Packing Co., 395 U.S. at 617-618; NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 477.
5. The Court in Gissel Packing Co. emphasized the NLRB's expertise in determining whether statements by employers would tend to mislead or coerce employees. 395 U.S. at 620. The NLRB's armamentarium for responding to material misrepresentations and deceptive tactics includes the issuance of cease and desist orders and the securing of restraining orders. See 29 U.S.C. §§ 160(c), (j).
6. As the Court observed in Cantwell v. Connecticut, 310 U.S. 296, 310:
To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.
7. See Developments in the Law -- Deceptive Advertising, 80 Harv.L.Rev. 1005, 1030-1031 (1967).
8. The information about price and product conveyed by commercial advertisements may, of course, stimulate thought and debate about political questions. The drug price information at issue in the present case might well have an impact, for instance, on a person's views concerning price control issues, government subsidy proposals, or special health care, consumer protection, or tax legislation.
