|Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.
[ Blackmun ]
[ Burger ]
[ Stewart ]
[ Rehnquist ]
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 BLACKMUN delivered the opinion of the Court.
The plaintiff appellees in this case attack, as violative of the First and Fourteenth Amendments, [n1] that portion of § 54-524.35 of Va.Code Ann. (1974), which provides that a pharmacist licensed in Virginia is guilty of unprofessional [p750] conduct if he
(3) publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms . . . for any drugs which may be dispensed only by prescription. [n2]
The three-judge District Court declared the quoted portion of the statute "void and of no effect," Jurisdictional Statement, App. 1, and enjoined the defendant appellants, the Virginia State Board of Pharmacy and the individual members of that Board, from enforcing it. 373 F.Supp. 683 (ED Va.1974). We noted probable jurisdiction of the appeal. 420 U.S. 971 (1975).
Since the challenged restraint is one that peculiarly concerns the licensed pharmacist in Virginia, we begin with a description of that profession as it exists under Virginia law.
The "practice of pharmacy" is statutorily declared to be "a professional practice affecting the public health, safety and welfare," and to be "subject to regulation and control in the public interest." Va.Code Ann. § 54524.2(a) (1974). [n3] Indeed, the practice is subject to extensive [p751] regulation aimed at preserving high professional standards. The regulatory body is the appellant Virginia State Board of Pharmacy. The Board is broadly charged by statute with various responsibilities, including the "[m]aintenance of the quality, quantity, integrity, safety and efficacy of drugs or devices distributed, dispensed or administered." § 54-524.16(a). It also is to concern itself with
[m]aintaining the integrity of, and public confidence in, the profession and improving the delivery of quality pharmaceutical services to the citizens of Virginia.
§ 54-524.16(d). The Board is empowered to "make such bylaws, rules and regulations . . . as may be necessary for the lawful exercise of its powers." § 54-524.17.
The Board is also the licensing authority. It may issue a license, necessary for the practice of pharmacy in the State, only upon evidence that the applicant is "of good moral character," is a graduate in pharmacy of a school approved by the Board, and has had "a suitable period of experience [the period required not to exceed 12 months] acceptable to the Board." § 54-524.21. The applicant must pass the examination prescribed by the Board. Ibid. One approved school is the School of Pharmacy of the Medical College of Virginia, where the curriculum is for three years following two years of college. Prescribed pre-pharmacy courses, such as biology and chemistry, are to be taken in college, and study requirements at the school itself include courses in organic chemistry, biochemistry, comparative anatomy, physiology, and pharmacology. Students are also trained in the ethics of the profession, and there is some clinical experience in the school's hospital pharmacies and in the medical center operated by the Medical College. This [p752] is "a rigid, demanding curriculum in terms of what the pharmacy student is expected to know about drugs." [n4]
Once licensed, a pharmacist is subject to a civil monetary penalty, or to revocation or suspension of his license, if the Board finds that he "is not of good moral character," or has violated any of a number of stated professional standards (among them that he not be "negligent in the practice of pharmacy" or have engaged in "fraud or deceit upon the consumer . . . in connection with the practice of pharmacy"), or is guilty of "unprofessional conduct." § 5524.22:1. "Unprofessional conduct" is specifically defined in § 5524.35, n. 2, supra, the third numbered phrase of which relates to advertising of the price for any prescription drug, and is the subject of this litigation.
Inasmuch as only a licensed pharmacist may dispense prescription drugs in Virginia, § 54-524.48, [n5] advertising or other affirmative dissemination of prescription drug price information is effectively forbidden in the State. Some pharmacies refuse even to quote prescription drug prices over the telephone. The Board's position, however, is that this would not constitute an unprofessional publication. [n6] It is clear, nonetheless, that all advertising of such prices, in the normal sense, is forbidden. The prohibition does not extend to nonprescription drugs, but neither is it confined to prescriptions that the pharmacist compounds himself. Indeed, about 95% of all prescriptions now are filled with dosage forms prepared by the pharmaceutical manufacturer. [n7] [p753]
This is not the first challenge to the constitutionality of § 54-524.35 and what is now its third-numbered phrase. Shortly after the phrase was added to the statute in 1968, [n8] a suit seeking to enjoin its operation was instituted by a drug retailing company and one of its pharmacists. Although the First Amendment was invoked, the challenge appears to have been based primarily on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In any event, the prohibition on drug price advertising was upheld. Patterson Drug Co. v. Kingery, 305 F.Supp. 821 (WD Va.1969). The three-judge court did find that the dispensation of prescription drugs "affects the public health, safety and welfare." Id. at 824-825. No appeal was taken.
The present, and second, attack on the statute is one made not by one directly subject to its prohibition, that is, a pharmacist, but by prescription drug consumers who claim that they would greatly benefit if the prohibition were lifted and advertising freely allowed. The plaintiffs are an individual Virginia resident who suffers from diseases that require her to take prescription drugs on a daily basis, [n9] and two nonprofit organizations. [n10] Their [p754] claim is that the First Amendment entitles the user of prescription drugs to receive information that pharmacists wish to communicate to them through advertising and other promotional means, concerning the prices of such drugs.
Certainly that information may be of value. Drug prices in Virginia, for both prescription and nonprescription items, strikingly vary from outlet to outlet even within the same locality. It is stipulated, for example, that, in Richmond, "the cost of 40 Achromycin tablets ranges from $2.59 to $6.00, a difference of 140% [sic]," and that, in the Newport News-Hampton area, the cost of tetracycline ranges from $1.20 to $9.00, a difference of 650%. [n11]
The District Court seized on the identity of the plaintiff appellees as consumers as a feature distinguishing the [p755] present case from Patterson Drug Co. v. Kingery, supra. Because the unsuccessful plaintiffs in that earlier case were pharmacists, the court said, "theirs was a prima facie commercial approach," 373 F.Supp. at 686. The present plaintiffs, on the other hand, were asserting an interest in their own health that was "fundamentally deeper than a trade consideration." Ibid. In the District Court's view, the expression in Valentine v. Chrestensen, 316 U.S. 52, 54-55 (1942), to the effect that "purely commercial advertising" is not protected had been tempered, by later decisions of this Court, to the point that First Amendment interests in the free flow of price information could be found to outweigh the countervailing interests of the State. The strength of the interest in the free flow of drug price information was borne out, the court felt, by the fact that three States by court decision had struck down their prohibitions on drug price advertising. Florida Board of Pharmacy v. Webb's City, Inc., 219 So.2d 681 (Fla.1969); Maryland Board of Pharmacy v. Sav-A-Lot, Inc., 270 Md. 103 311 A.2d 242 (1973); Pennsylvania State Board of Pharmacy v. Pastor, 441 Pa. 186, 272 A.2d 487 (1371). [n12] The District Court recognized that this Court had upheld -- against federal constitutional challenges other than on First Amendment grounds -- state restrictions [p756] on the advertisement of prices for optometrists' services, Head v. New Mexico Board, 374 U.S. 424 (1963), for eyeglass frames, Williamson v. Lee Optical Co., 348 U.S. 483 (1955), and for dentists' services, Semler v. Dental Examiners, 294 U.S. 608 (1935). [n13] The same dangers of abuse and deception were not thought to be present, however, when the advertised commodity was prescribed by a physician for his individual patient and was dispensed by a licensed pharmacist. The Board failed to justify the statute adequately, and it had to fall. 373 F.Supp. at 686-687.
The question first arises whether, even assuming that First Amendment protection attaches to the flow of drug price information, it is a protection enjoyed by the appellees as recipients of the information, and not solely, if at all, by the advertisers themselves who seek to disseminate that information.
Freedom of speech presupposes a willing speaker. But where a speaker exists, as is the case here, [n14] the protection afforded is to the communication, to its source and to its recipients both. This is clear from the decided cases. In Lamont v. Postmaster General, 381 U.S. 301 (1965), the Court upheld the First Amendment rights of citizens to receive political publications sent from abroad. [p757] More recently, in Kleindienst v. Mandel, 408 U.S. 753, 762-763 (1972), we acknowledged that this Court has referred to a First Amendment right to "receive information and ideas," and that freedom of speech "‘necessarily protects the right to receive.'" And in Procunier v. Martinez, 416 U.S. 396, 408-409 (1974), where censorship of prison inmates' mail was under examination, we thought it unnecessary to assess the First Amendment rights of the inmates themselves, for it was reasoned that such censorship equally infringed the rights of noninmates to whom the correspondence was addressed. There are numerous other expressions to the same effect in the Court's decisions. See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); Stanley v. Georgia, 394 U.S. 557, 564 (1969); Griswold v. Connecticut, 381 U.S. 479, 482 (1965); Marsh v. Alabama, 326 U.S. 501, 505 (1946); Thomas v. Collins, 323 U.S. 516, 534 (1945); Martin v. Struthers, 319 U.S. 141, 143 (1943). If there is a right to advertise, there is a reciprocal right to receive the advertising, and it may be asserted by these appellees. [n15] [p758]
The appellants contend that the advertisement of prescription drug prices is outside the protection of the First Amendment because it is "commercial speech." There can be no question that, in past decisions, the Court has given some indication that commercial speech is unprotected. In Valentine v. Chrestensen, supra, the Court upheld a New York statute that prohibited the distribution of any "handbill, circular . or other advertising matter whatsoever in or upon any street." The Court concluded that, although the First Amendment would forbid the banning of all communication by handbill in the public thoroughfares, it imposed "no such restraint on government as respects purely commercial advertising." 316 U.S. at 54. Further support for a "commercial speech" exception to the First Amendment may perhaps be found in Breard v. Alexandria, 341 U.S. 622 (1951), where the Court upheld a conviction for violation of an ordinance prohibiting door-to-door solicitation of magazine subscriptions. The Court reasoned: "The selling . . . brings into the transaction a commercial feature," and it distinguished Martin v. Struthers, supra, where it had reversed a conviction for door-to-door distribution of leaflets publicizing a religious meeting, as a case involving "no element of the commercial." 341 U.S. at 642-643. Moreover, the Court several times has stressed that communications to which First Amendment protection was given were not "purely commercial." New York Times Co. v. Sullivan, 376 U.S. 254, 266 [p759] (1964); Thomas v. Collins, 323 U.S. at 533; Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943); Jamison v. Texas, 318 U.S. 413, 417 (1943).
Since the decision in Breard, however, the Court has never denied protection on the ground that the speech in issue was "commercial speech." That simplistic approach, which by then had come under criticism or was regarded as of doubtful validity by Members of the Court, [n16] was avoided in Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376 (1973). There, the Court upheld an ordinance prohibiting newspapers from listing employment advertisements in columns according to whether male or female employees were sought to be hired. The Court, to be sure, characterized the advertisements as "classic examples of commercial speech," id. at 385, and a newspaper's printing of the advertisements as of the same character. The Court, however, upheld the ordinance on the ground that the restriction it imposed was permissible because the discriminatory hirings proposed by the advertisements, and by their newspaper layout, were themselves illegal.
Last Term, in Bigelow v. Virginia, 421 U.S. 809 (1975), the notion of unprotected "commercial speech" all but passed from the scene. We reversed a conviction for violation of a Virginia statute that made the circulation of any publication to encourage or promote the [p760] processing of an abortion in Virginia a misdemeanor. The defendant had published in his newspaper the availability of abortions in New York. The advertisement in question, in addition to announcing that abortions were legal in New York, offered the services of a referral agency in that State. We rejected the contention that the publication was unprotected because it was commercial. Chrestensen's continued validity was questioned, and its holding was described as "distinctly a limited one" that merely upheld "a reasonable regulation of the manner in which commercial advertising could be distributed." 421 U.S. at 819. We concluded that "the Virginia courts erred in their assumptions that advertising, as such, was entitled to no First Amendment protection," and we observed that the "relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas." Id. at 825-826.
Some fragment of hope for the continuing validity of a "commercial speech" exception arguably might have persisted because of the subject matter of the advertisement in Bigelow. We noted that, in announcing the availability of legal abortions in New York, the advertisement "did more than simply propose a commercial transaction. It contained factual material of clear ‘public interest.'" Id. at 822. And, of course, the advertisement related to activity with which, at least in some respects, the State could not interfere. See Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973). Indeed, we observed:
We need not decide in this case the precise extent to which the First Amendment permits regulation of advertising that is related to activities the State may legitimately regulate or even prohibit.
421 U.S. at 825.
Here, in contrast, the question whether there is a First Amendment exception for "commercial speech" is [p761] squarely before us. Our pharmacist does not wish to editorialize on any subject, cultural, philosophical, or political. He does not wish to report any particularly newsworthy fact, or to make generalized observations even about commercial matters. The "idea" he wishes to communicate is simply this: "I will sell you the X prescription drug at the Y price." Our question, then, is whether this communication is wholly outside the protection of the First Amendment.
We begin with several propositions that already are settled or beyond serious dispute. It is clear, for example, that speech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement of one form or another. Buckley v. Valeo, 424 U.S. 1, 35-59 (1976); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. at 384; New York Times Co. v. Sullivan, 376 U.S. at 266. Speech likewise is protected even though it is carried in a form that is "sold" for profit, Smith v. California, 361 U.S. 147, 150 (1959) (books); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) (motion pictures); Murdock v. Pennsylvania, 319 U.S. at 111 (religious literature), and even though it may involve a solicitation to purchase or otherwise pay or contribute money. New York Times Co. v. Sullivan, supra; NAACP v. Button, 371 U.S. 415, 429 (1963); Jamison v. Texas, 318 U.S. at 417; Cantwell v. Connecticut, 310 U.S. 296, 306-307 (1940).
If there is a kind of commercial speech that lacks all First Amendment protection, therefore, it must be distinguished by its content. Yet the speech whose content deprives it of protection cannot simply be speech on a commercial subject. No one would contend that our pharmacist may be prevented from being heard on [p762] the subject of whether, in general, pharmaceutical prices should be regulated, or their advertisement forbidden. Nor can it be dispositive that a commercial advertisement is noneditorial, and merely reports a fact. Purely factual matter of public interest may claim protection. Bigelow v. Virginia, 421 U.S. at 421 U.S. 822"]822; 822; Thornhill v. Alabama, 310 U.S. 88, 102 (1940).
Our question is whether speech which does "no more than propose a commercial transaction," Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. at 413 U.S. 385"]385, is so removed from any "exposition of ideas," 385, is so removed from any "exposition of ideas," Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), and from "‘truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government,'" 315 U.S. 568, 572 (1942), and from "‘truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government,'" Roth v. United States, 354 U.S. 476, 484 (1957), that it lacks all protection. Our answer is that it is not.
Focusing first on the individual parties to the transaction that is proposed in the commercial advertisement, we may assume that the advertiser's interest is a purely economic one. That hardly disqualifies him from protection under the First Amendment. The interests of the contestants in a labor dispute are primarily economic, but it has long been settled that both the employee and the employer are protected by the First Amendment when they express themselves on the merits of the dispute in order to influence its outcome. See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 617-618 (1969); NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 477 (1941); AFL v. Swing, 312 U.S. 321, 325-326 (1941); Thornhill v. Alabama, 310 U.S. at 102. We know of no requirement that, in order to avail themselves of First Amendment protection, the parties to a labor dispute need address themselves to the merits of unionism in general [p763] or to any subject beyond their immediate dispute. [n17] It was observed in Thornhill that "the practices in a single factory may have economic repercussions upon whole region and affect widespread systems of marketing." Id. at 103. Since the fate of such a "single factory" could as well turn on its ability to advertise its product as on the resolution of its labor difficulties, we see no satisfactory distinction between the two kinds of speech.
As to the particular consumer's interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day's most urgent political debate. Appellees' case in this respect is a convincing one. Those whom the suppression of prescription drug price information hits the hardest are the poor, the sick, and particularly the aged. A disproportionate amount of their income tends to be spent on prescription drugs; yet they are the least able to learn, by shopping from pharmacist to pharmacist, where their scarce dollars are best spent. [n18] When drug prices [p764] vary as strikingly as they do, information as to who is charging what becomes more than a convenience. It could mean the alleviation of physical pain or the enjoyment of basic necessities.
Generalizing, society also may have a strong interest in the free flow of commercial information. Even an individual advertisement, though entirely "commercial," may be of general public interest. The facts of decided cases furnish illustrations: advertisements stating that referral services for legal abortions are available, Bigelow v. Virginia, supra; that a manufacturer of artificial furs promotes his product as an alternative to the extinction by his competitors of fur-bearing mammals, see Fur Information & Fashion Council, Inc. v. E. F. Timme & Son, 364 F.Supp. 16 (SDNY 1973); and that a domestic producer advertises his product as an alternative to imports that tend to deprive American residents of their jobs, cf. Chicago Joint Board v. Chicago Tribune Co., 435 F.2d 470 (CA7 1970), cert. denied, 402 U.S. 973 (1971). Obviously, not all commercial messages contain the same or even a very great public interest element. There are few to which such an element, however, could not be added. Our pharmacist, for example, could cast himself as a commentator on store-to-store disparities [p765] in drug prices, giving his own and those of a competitor as proof. We see little point in requiring him to do so, and little difference if he does not.
Moreover, there is another consideration that suggests that no line between publicly "interesting" or "important" commercial advertising and the opposite kind could ever be drawn. Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable. See Dun & Bradstreet, Inc. v. Grove, 404 U.S. 898, 904-906 (1971) (Douglas, J., dissenting from denial of certiorari). See also FTC v. Procter & Gamble Co., 386 U.S. 568, 603-604 (1967) (Harlan, J., concurring). And if it is indispensable to the proper allocation of resources in a free enterprise system, it is also indispensable to the formation of intelligent opinions as to how that system ought to be regulated or altered. Therefore, even if the First Amendment were thought to be primarily an instrument to enlighten public decisionmaking in a democracy, [n19] we could not say that the free flow of information does not serve that goal. [n20] [p766]
Arrayed against these substantial individual and societal interests are a number of justifications for the advertising ban. These have to do principally with maintaining a high degree of professionalism on the part of licensed pharmacists. [n21] Indisputably, the State has a strong interest in maintaining that professionalism. It is exercised in a number of ways for the consumer's benefit. There is the clinical skill involved in the compounding of drugs, although, as has been noted, these now make up only a small percentage of the prescriptions filled. Yet, even with respect to manufacturer-prepared compounds, there is room for the pharmacist [p767] to serve his customer well or badly. Drugs kept too long on the shelf may lose their efficacy or become adulterated. They can be packaged for the user in such a way that the same results occur. The expertise of the pharmacist may supplement that of the prescribing physician, if the latter has not specified the amount to be dispensed or the directions that are to appear on the label. The pharmacist, a specialist in the potencies and dangers of drugs, may even be consulted by the physician as to what to prescribe. He may know of a particular antagonism between the prescribed drug and another that the customer is or might be taking, or with an allergy the customer may suffer. The pharmacist himself may have supplied the other drug or treated the allergy. Some pharmacists, (concededly not a large number) "monitor" the health problems and drug consumptions of customers who come to them repeatedly. [n22] A pharmacist who has a continuous relationship with his customer is in the best position, of course, to exert professional skill for the customer's protection.
Price advertising, it is argued, will place in jeopardy the pharmacist's expertise and, with it, the customer's health. It is claimed that the aggressive price competition that will result from unlimited advertising will make it impossible for the pharmacist to supply professional services in the compounding, handling, and dispensing [p768] of prescription drugs. Such services are time-consuming and expensive; if competitors who economize by eliminating them are permitted to advertise their resulting lower prices, the more painstaking and conscientious pharmacist will be forced either to follow suit or to go out of business. It is also claimed that prices might not necessarily fall as a result of advertising. If one pharmacist advertises, others must, and the resulting expense will inflate the cost of drugs. It is further claimed that advertising will lead people to shop for their prescription drugs among the various pharmacists who offer the lowest prices, and the loss of stable pharmacist-customer relationships will make individual attention -- and certainly the practice of monitoring -- impossible. Finally, it is argued that damage will be done to the professional image of the pharmacist. This image, that of a skilled and specialized craftsman, attracts talent to the profession and reinforces the better habits of those who are in it. Price advertising, it is said, will reduce the pharmacist's status to that of a mere retailer. [n23]
The strength of these proffered justifications is greatly undermined by the fact that high professional standards, to a substantial extent, are guaranteed by the close regulation to which pharmacists in Virginia are subject. And this case concerns the retail sale by the pharmacist more than it does his professional standards. Surely, any pharmacist guilty of professional dereliction that actually endangers his customer will promptly lose his [p769] license. At the same time, we cannot discount the Board's justifications entirely. The Court regarded justifications of this type sufficient to sustain the advertising bans challenged on due process and equal protection grounds in Head v. New Mexico Board, supra; Williamson v. Lee Optical Co., supra; and Semler v. Dental Examiners, supra.
The challenge now made, however, is based on the First Amendment. This casts the Board's justifications in a different light, for on close inspection it is seen that the State's protectiveness of its citizens rests in large measure on the advantages of their being kept in ignorance. The advertising ban does not directly affect professional standards one way or the other. It affects them only through the reactions it is assumed people will have to the free flow of drug price information. There is no claim that the advertising ban in any way prevents the cutting of corners by the pharmacist who is so inclined. That pharmacist is likely to cut corners in any event. The only effect the advertising ban has on him is to insulate him from price competition and to open the way for him to make a substantial, and perhaps even excessive, profit in addition to providing an inferior service. The more painstaking pharmacist is also protected but, again, it is a protection based in large part on public ignorance.
It appears to be feared that if the pharmacist who wishes to provide low cost, and assertedly low quality, services is permitted to advertise, he will be taken up on his offer by too many unwitting customers. They will choose the low-cost, low-quality service and drive the "professional" pharmacist out of business. They will respond only to costly and excessive advertising, and end up paying the price. They will go from one pharmacist to another, following the discount, and destroy the pharmacist-customer relationship. They will lose respect for [p770] the profession because it advertises. All this is not in their best interests, and all this can be avoided if they are not permitted to know who is charging what.
There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication, rather than to close them. If they are truly open, nothing prevents the "professional" pharmacist from marketing his own assertedly superior product, and contrasting it with that of the low-cost, high-volume prescription drug retailer. But the choice among these alternative approaches is not ours to make, or the Virginia General Assembly's. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us. Virginia is free to require whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. Cf. Parker v. Brown, 317 U.S. 341 (1943). But it may not do so by keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering. In this sense, the justifications Virginia has offered for suppressing the flow of prescription drug price information, far from persuading us that the flow is not protected by the First Amendment, have reinforced our view that it is. We so hold.
In concluding that commercial speech, like other varieties, is protected, we of course do not hold that it can never be regulated in any way. Some forms of commercial speech regulation are surely permissible. We mention a few only to make clear that they are not before us and therefore are not foreclosed by this case. [p771]
There is no claim, for example, that the prohibition on prescription drug price advertising is a mere time, place, and manner restriction. We have often approved restrictions of that kind provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that, in so doing, they leave open ample alternative channels for communication of the information. Compare Grayned v. City of Rockford, 408 U.S. 104, 116 (1972); United States v. O'Brien, 391 U.S. 367, 377 (1968); and Kovacs v. Cooper, 336 U.S. 77, 887 (1949), with Buckley v. Valeo, 424 U.S. l; Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975); Cantwell v. Connecticut, 310 U.S. at 304-308; and Saia v. New York, 334 U.S. 558, 562 (1948). Whatever may be the proper bounds of time, place, and manner restrictions on commercial speech, they are plainly exceeded by this Virginia statute, which singles out speech of a particular content and seeks to prevent its dissemination completely.
Nor is there any claim that prescription drug price advertisements are forbidden because they are false or misleading in any way. Untruthful speech, commercial or otherwise, has never been protected for its own sale. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974); Konigsberg v. State Bar, 366 U.S. 36, 49, and n. 10 (1961). Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State's dealing effectively with this problem. [n24] The First Amendment, [p772] as we construe it today, does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely. See, for example, Va.Code Ann. § 182-216 (1975).
Also, there is no claim that the transactions proposed in the forbidden advertisements are themselves illegal in any way. Cf. Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376 (1973); United States [p773] v. Hunter, 459 F.2d 205 (CA4), cert. denied, 409 U.S. 934 (1972). Finally, the special problems of the electronic broadcast media are likewise not in this case. Cf. Capitol Broadcasting Co. v. Mitchell, 333 F.Supp. 582 (DC 1971), aff'd, sub nom. Capitol Broadcasting Co. v. Action Attorney General, 405 U.S. 1000 (1972).
What is at issue is whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients. Reserving other questions, [n25] we conclude that the answer to this one is in the negative.
The judgment of the District Court is affirmed.
It is so ordered.
MR. JUSTICE STEVENS took no part in the consideration or decision of this case.
1. The First Amendment is applicable to the States through the Due Process Clause of the Fourteenth Amendment. See, e.g., Bigelow v. Virginia, 421 U.S. 809, 811 (1975); Schneider v. State, 308 U.S. 147, 160 (1939).
2. Section 54-524.35 provides in full:
Any pharmacist shall be considered guilty of unprofessional conduct who (1) is found guilty of any crime involving grave moral turpitude, or is guilty of fraud or deceit in obtaining a certificate of registration; or (2) issues, publishes, broadcasts by radio, or otherwise, or distributes or uses in any way whatsoever advertising matter in which statements are made about his professional service which have a tendency to deceive or defraud the public, contrary to the public health and welfare; or (3) publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms for professional services or for drugs containing narcotics or for any drugs which may be dispensed only by prescription.
3. The parties, also, have stipulated that pharmacy "is a profession." Stipulation of Facts ¶ 11, App. 11.
4. Id. ¶ 8, App. 11. See generally id. ¶¶ 6-16, App. 112.
5. Exception is made for "legally qualified" practitioners of medicine, dentistry, osteopathy, chiropody, and veterinary medicine. § 54-524.53
6. Stipulation of Facts ¶ 25, App. 15.
7. Id. ¶ 18, App. 13.
8. Theretofore, an administrative regulation to the same effect had been outstanding. The Board, however, in 1967, was advised by the State Attorney General's office that the regulation was unauthorized. The challenged phrase was added to the statute the following year. See Patterson Drug Co. v. Kingery, 305 F.Supp. 821, 823 n. 1 (WD Va.1969).
9. Stipulation of Facts ¶ 3, App. 9.
10. The organizations are the Virginia Citizens Consumer Council, Inc., and the Virginia State AFL-CIO. Each has a substantial membership (approximately 150,000 and 69,000, respectively) many of whom are users of prescription drugs. Id. 1 and 2, App. 9. The American Association of Retired Persons and the National Retired Teachers Association, also claiming many members who "depend substantially on prescription drugs for their wellbeing," Brief 2, are among those who have filed briefs amici curiae in support of the appellees.
11. Stipulation of Facts 22(b) and (c), App. 14. The phenomenon of widely varying drug prices is apparently national in scope. The American Medical Association conducted a survey in Chicago that showed price differentials in that city of up to 1200% for the same amounts of a specific drug. A study undertaken by the Consumers Union in New York found that prices for the same amount of one drug ranged from 79¢ to $7.45, and for another from $1.25 to $11.50. Id. 22(d) and (e), App. 14. Amici American Association of Retired Persons and National Retired Teachers Association state that, in 1974, they participated in a survey of three prescription drug prices at 28 pharmacies in Washington, D.C. and found pharmacy-to-pharmacy variances in the price of identical drugs as great as 245%. Brief as Amici Curiae 10. The prevalence of such discrepancies "throughout the United States" is documented in a recent report. Staff Report to the Federal Trade Commission, Prescription Drug Price Disclosures 119 (1975). The same report indicates that 34 States impose significant restrictions on dissemination of drug price information and, thus, make the problem a national one. Id. at 34.
12. The Florida and Pennsylvania decisions appear to rest on state constitutional grounds. The Maryland decision was based on the Due Process Clause of the Fourteenth Amendment as well as on provisions of the State Constitution.
Accord: Terry v. California State Board of Pharmacy, 395 F.Supp. 94 (ND Cal.1975), appeal docketed, No. 75-336. Contra: Urowsky v. Board of Regents, 38 N.Y.2d 364, 342 N.E.2d 583 (1975); Supermarkets General Corp. v. Sills, 93 N.J.Super. 326, 225 A.2d 728 (1966).
See Note: Commercial Speech -- An End in Sight to Chrestensen 23 De Paul L.Rev. 1258 (1974); Comment, 37 Brooklyn L.Rev. 617 (1971); Comment, 24 Wash. and Lee L.Rev. 299 (1967).
13. In Head v. New Mexico Board, the First Amendment issue was raised. This Court refused to consider it, however, because it had not been presented to the state courts, nor reserved in the notice of appeal here. 374 U.S. at 432 n. 12. The Court's action to this effect was noted in Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 387 n. 10 (1973). The appellants at the oral argument recognized that Head was a due process case. Tr. of Oral Arg. 10.
In the absence of Section 54-524.35(3), some pharmacies in Virginia would advertise, publish and promote price information regarding prescription drugs.
Stipulation of Facts ¶ 26, App. 15.
15. The dissent contends that there is no such right to receive the information that another seeks to disseminate, at least not when the person objecting could obtain the information in another way, and could himself disseminate it. Our prior decisions, cited above, are said to have been limited to situations in which the information sought to be received "would not be otherwise reasonably available," see post at 782; emphasis is also placed on the appellees' great need for the information, which need, assertedly, should cause them to take advantage of the alternative of digging it up themselves. We are aware of no general principle that freedom of speech may be abridged when the speaker's listeners could come by his message by some other means, such as seeking him out and asking him what it is. Nor have we recognized any such limitation on the independent right of the listener to receive the information sought to be communicated. Certainly, the recipients of the political publications in Lamont could have gone abroad and thereafter disseminated them themselves. Those in Kleindienst who organized the lecture tour by a foreign Marxist could have done the same. And the addressees of the inmate correspondence in Procunier could have visited the prison themselves. As for the recipients' great need for the information sought to be disseminated, if it distinguishes our prior cases at all, it makes the appellees' First Amendment claim a stronger, rather than a weaker, one.
16. See Bigelow v. Virginia, 421 U.S. at 421 U.S. 820"]820 n. 6, citing Mr. Justice Douglas' observation in Cammarano v. United States, 358 U.S. 498, 514 (1959) (concurring opinion), that the Chrestensen ruling "was casual, almost offhand. And it has not survived reflection"; the similar observation of four Justices in dissent in 820 n. 6, citing Mr. Justice Douglas' observation in Cammarano v. United States, 358 U.S. 498, 514 (1959) (concurring opinion), that the Chrestensen ruling "was casual, almost offhand. And it has not survived reflection"; the similar observation of four Justices in dissent in Lehman v. City of Shaker Heights, 418 U.S. 298, 314 n. 6 (1974); and expressions of three Justices in separate dissents in Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. at 393, 398, and 401. See also Mr. Justice Douglas' comment, dissenting from the denial of certiorari in Dun & Bradstreet, Inc. v. Grove, 404 U.S. 898, 904-906 (1971).
17. The speech of labor disputants, of course, is subject to a number of restrictions. The Court stated in NLRB v. Gissel Packing Co., 395 U.S. at 618, for example, that an employer's threats of retaliation for the labor actions of his employees are "without the protection of the First Amendment." The constitutionality of restrictions upon speech in the special context of labor disputes is not before us here. We express no views on that complex subject, and advert to cases in the labor field only to note that, in some circumstances speech of an entirely private and economic character enjoys the protection of the First Amendment.
18. The point hardly needs citation, but a few figures are illustrative. It has been estimated, for example, that, in 1973 and 1974 per capita drug expenditures of persons age 65 and over were $97.27 and $103.17, respectively, more than twice the figures of $41.18 and $45.14 for all age groups. Cooper & Piro, Age Differences in Medical Care Spending, Fiscal Year 1973, 37 Social Security Bull., No. 5, p. 6 (1974); Mueller & Gibson, Age Differences in Health Care Spending, Fiscal Year 1974, 38 Social Security Bull., No. 6, p. 5 (1975). These figures, of course, reflect the higher rate of illness among the aged. In 1971, 16.9% of all Americans 65 years and over were unable to carry on major activities because of some chronic condition, the figure for all ages being only 2.9%. Statistical Policy Division, Office of Management and Budget, Social Indicators 1973, p. 36. These figures eloquently suggest the diminished capacity of the aged for the kind of active comparison shopping that a ban on advertising makes necessary or desirable. Diminished resources are also the general rule for those 65 and over; their income averages about half that for all age groups. Id. at 176.
The parties have stipulated that a "significant portion of income of elderly persons is spent on medicine." Stipulation of Facts ¶ 27 App. 15.
19. For the views of a leading exponent of this position, see A. Meiklejohn, Free Speech And Its Relation to Self-Government (1948). This Court likewise has emphasized the role of the First Amendment in guaranteeing our capacity for democratic self-government. See New York Time Co. v. Sullivan, 376 U.S. 254, 269-270 (1964), and cases cited therein.
20. Pharmaceuticals themselves provide a not insignificant illustration. The parties have stipulated that expenditures for prescription drugs in the United States in 1970 were estimated at $9.14 billion. Stipulation of Facts 17, App. 12. It has been said that the figure for drugs and drug sundries in 1974 was $9.695 billion, with that amount estimated to be increasing about $700 million per year. Worthington, National Health Expenditures 1929-1974, 38 Social Security Bull., No. 2, p. 9 (1975). The task of predicting the effect that a free flow of drug price information would have on the production and consumption of drugs obviously is a hazardous and speculative one. It was recently undertaken, however, by the staff of the Federal Trade Commission in the course of its report, see n. 11, supra, on the merits of a possible Commission rule that would outlaw drug price advertising restrictions. The staff concluded that consumer savings would be "of a very substantial magnitude, amounting to many millions of dollars per year." Staff Report, supra, n. 11, at 181.
21. An argument not advanced by the Board, either in its brief or in the testimony proffered prior to summary judgment, but which on occasion has been made to other courts, see, e.g., Pennsylvania State Board of Pharmacy v. Pastor, 441 Pa. 186, 272 A.2d 487 (1971), is that the advertisement of low drug prices will result in overconsumption and in abuse of the advertised drugs. The argument prudently has been omitted. By definition, the drugs at issue here may be sold only on a physician's prescription. We do not assume, as apparently the dissent does, that simply because low prices will be freely advertised, physicians will overprescribe, or that pharmacists will ignore the prescription requirement.
22. Monitoring, even if pursued, is not fully effective. It is complicated by the mobility of the patient; by his patronizing more than one pharmacist; by his being treated by more than one prescriber; by the availability of over-the-counter drugs; and by the antagonism of certain foods and drinks. Stipulation of Facts 30-47, App. 119. Neither the Code of Ethics of the American Pharmaceutical Association nor that of the Virginia Pharmaceutical Association requires a pharmacist to maintain family prescription records. Id. ¶ 42, App. 18. The appellant Board has never promulgated a regulation requiring such records. Id. ¶ 43, App. 18.
23. Descriptions of the pharmacist's expertise, its importance to the consumer, and its alleged jeopardization by price advertising are set forth at length in the numerous summaries of testimony of proposed witnesses for the Board, and objections to testimony of proposed witnesses for the plaintiffs, that the Board filed with the District Court prior to summary judgment, the substance of which appellees did not contest. App. 4, 27-48, 52-53; Brief for Appellants 5, and n. 2.
24. In concluding that commercial speech enjoys First Amendment protection, we have not held that it is wholly undifferentiable from other forms. There are common sense differences between speech that does "no more than propose a commercial transaction," Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. at 385, and other varieties. Even if the differences do not justify the conclusion that commercial speech is valueless, and thus subject to complete suppression by the State, they nonetheless suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired. The truth of commercial speech, for example, may be more easily verifiable by its disseminator than, let us say, news reporting or political commentary, in that ordinarily the advertiser seeks to disseminate information about a specific product or service that he himself provides and presumably knows more about than anyone else. Also, commercial speech may be more durable than other kinds. Since advertising is the since qua non of commercial profits, there is little likelihood of its being chilled by proper regulation and forgone entirely.
Attributes such as these, the greater objectivity and hardiness of commercial speech, may make it less necessary to tolerate inaccurate statements for fear of silencing the speaker. Compare New York Times Co. v. Sullivan, 376 U.S. 254 (1964), with Dun & Bradstreet, Inc. v. Grove, 404 U.S. 898 (1971). They may also make it appropriate to require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent its being deceptive. Compare Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), with Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082 (1968), cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969). Cf. United States v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924) ("It is not difficult to choose statements, designs and devices which will not deceive"). They may also make inapplicable the prohibition against prior restraints. Compare New York Times Co. v. United States, 403 U.S. 713 (1971), with Donaldson v. Read Magazine, 333 U.S. 178, 189-191 (1948); FTC v. Standard Education Society, 302 U.S. 112 (1937); E. F. Drew & Co. v. FTC, 235 F.2d 735, 739-740 (CA2 1956), cert. denied, 352 U.S. 969 (1957).
25. We stress that we have considered in this case the regulation of commercial advertising by pharmacists. Although we express no opinion as to other professions, the distinctions, historical and functional, between professions, may require consideration of quite different factors. Physicians and lawyers, for example, do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising.