1. Majority Opinion
a. Yes, and the statute prohibiting ads is struck down. At
issue here is pure commercial speech (not commercial speech with a
particularly noteworthy fact, or any editorializing on political or
social issues). It is simply the idea, “I will sell you the X
prescription at Y price.”
b. Just because speech has money spent on it (as in commercial
speech) does not mean that the First Am does not apply. In Buckley,
for ex., it was held that political contributions were protected
speech (at least some contributions were). Thus, the issue of purely
commercial speech is a First Am. issue.
c. Chaplinsky held that certain narrow categories of speech do
not receive First Am. protection if they are so removed from any
exposition of ideas. But speech “which does no more than propose a
commercial transaction” is not such a narrow category.
d. Purely commercial speech is not utterly removed from any
exposition of ideas because the advertiser, consumer, and society
each have an interest in the untrammeled flow of commercial info.
(1) Advertiser’s interest: Even though he has an economic
interest does not mean that he is disqualified from First Am.
protection (labor protests have an economic interest and are
(2) Consumer’s interest: The consumer’s interest “may be as
keen, if not keener, by far, than his interest in the day’s most
urgent political debate.” Indeed, those who are most hurt by the ban
on ads were the poor, the sick, and especially the aged.
(3) Society’s interest: Society has a “strong interest in the
free flow of info.” There exists a generalized public interest in
info. about the price of goods which merits First Am. protection:
“Advertising, however tasteless and excessive it may seem, is
nonetheless dissemination of information to who is producing and
selling what product, for what reason, and at what price…It is a
matter of public interest that [private economic] decisions, in the
aggregate, be intelligent and well informed.”
1. Dave says he does not really by this rhetoric, and has some
sympathies with Rehnquist’s dissent.
e. It is highly paternalistic for the State to ban commercial
ads in order to hope to protect the “professional” pharmacist who is
driven out by “the low-cost, low-quality service.”
f. Commercial speech can be regulated in some ways, of course.
For example, time, place, and manner restrictions are allowed, so
long as there are ample alternative channels for communication of the
information. Also, false or misleading advertising is not protected.
1. False or misleading ads have less protection under the First Am.
than political speech. Why? One reason is because the accuracy of
commercial speech is easier to verify.
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