|Bolger v. Youngs Drug Products Corp.,
526 F.Supp. 823, affirmed.
[ Marshall ]
[ Rehnquist ]
[ Stevens ]
Bolger v. Youngs Drug Products Corp.,
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR joins, concurring in the judgment. [p76]
I agree that the judgment should be affirmed, but my reasoning differs from that of the Court. The right to use the mails is undoubtedly protected by the First Amendment, Blount v. Rizzi, 400 U.S. 410 (1971). But because the home mailbox has features which distinguish it from a public hall or public park, where it may be assumed that all who are present wish to hear the views of the particular speaker then on the rostrum, it cannot be totally assimilated for purposes of analysis with these traditional public forums. Several people within a family or living group may have free access to a mailbox, including minor children; and obviously not every piece of mail received has been either expressly or impliedly solicited. It is the unsolicited mass mailings sent by appellee designed to promote the use of condoms that gives rise to this litigation.
Our earlier cases have developed an analytic framework for commercial speech cases.
At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 566 (1980).
The material that Youngs seeks to mail concerns lawful activity and is not misleading. The Postal Service does not contend otherwise.
The Postal Service does contend that the Government has substantial interests in "aiding parents' efforts to discuss sensitive and important subjects such as birth control with their [p77] children," Brief for Appellants 25, and in preventing material that the recipient may find offensive from entering the home on an unsolicited basis. Id. at 30. The Government is entitled, the argument goes, to help individuals shield their families and homes from advertisements for contraceptives. [n1]
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.
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 wellbeing 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 [p78] (1978), "the one place where people ordinarily have the right not to be assaulted by uninvited and offensive sights and sounds." Id. at 759 (opinion of POWELL, J.). Accord, Rowan v. Post Office Dept., 397 U.S. 728, 736-738 (1970). The Government may properly act to protect people from unreasonable intrusions into their homes.
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." [n2] 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. [p79]
Although § 3001(e)(2) does advance the interest in permitting parents to guide their children's education concerning contraception, it also inhibits that interest by denying parents access to information about birth control that might help them make informed decisions. This statute acts "to prevent [people] from obtaining certain information." Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 96 (1977). The First Amendment, which was designed to prevent the Government from suppressing information, requires us
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.
Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976).
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. [n3] Both of these arguments fall wide of the [p80] mark. A prohibition on the use of the mails is a significant restriction of First Amendment rights. We have noted that
"[t]he United States may give up the Post Office when it sees fit, but while it carries it on, the use of the mails is almost as much a part of free speech as the right to use our tongues."
Blount v. Rizzi, 400 U.S. at 416, quoting Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 437 (1921) (Holmes, J., dissenting). And First Amendment freedoms would be of little value if speakers had to obtain permission of their audiences before advancing particular viewpoints. Cf. Lamont v. Postmaster General, 381 U.S. 301 (1965) (statute requiring Post Office to obtain authorization from addressee before delivering certain types of mail violates addressee's First Amendment rights).
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 [n4] 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.
1. The Postal Service acknowledges that these justifications were not the reasons why § 3001(e)(2) was originally enacted. This provision began as part of the Comstock Act, a statute enacted "for the suppression of Trade in and Circulation of obscene Literature and Articles of immoral Use." Act of Mar. 3, 1873, ch. 258, § 2, 17 Stat. 599. The Postal Service is entitled to rely on legitimate interests that the statute now serves, even if the original reasons for enacting the statute would not suffice to support it against a First Amendment challenge. Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 460 (1978). See also Doe v. Bolton, 410 U.S. 179, 190-191 (1973) (a State may readjust its views and emphases in light of modern knowledge).
2. Under the restrictions imposed by the District Court, see ante at 64, n. 5, the recipient will be explicitly informed of his right under § 3008. He will also know the nature of Youngs' mailing without opening the envelope, and thus be able to avoid the advertisement entirely by transferring it directly from mailbox to wastebasket.
Youngs did not file a cross-appeal challenging these restrictions, so I see no occasion to consider whether the District Court acted properly. Nor would I consider whether these restrictions would be valid if Congress were to enact them.
3. See generally, e.g., The Washington Post, May 4, 1983, p. B20 (drugstore advertisement for numerous items, including condoms manufactured by Youngs and contraceptive jelly).
4. Since the Court finds § 3001(e)(2) invalid under the cases involving commercial speech, I would not reach Youngs' argument that its materials are entitled to the broader protection afforded noncommercial speech.