The Volokh Conspiracy
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Today in Supreme Court History: November 11, 1975
11/11/1975: Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. argued.
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Boylan v. Hot Springs Ry. Co., 132 U.S. 146 (decided November 11, 1889): passenger properly thrown off train when refusing to pay extra on return trip even though he had paid round trip fare, where ticket (which he hadn’t read) required it be stamped at departing station and he didn’t get it stamped (the language of the ticket, quoted in a footnote, is so extensive that it had to have been “fine print”)
Connecticut v. Menillo, 423 U.S. 9 (decided November 11, 1975): upholding Connecticut statute criminalizing abortion “by any person” if that person is not a physician (“Roe v. Wade did not go so far”)
Chandler & Price Co. v. Brandtjen & Kluge, 296 U.S. 53 (decided November 11, 1935): denying motion to intervene in patent suit made by holder of patent for another device (sheet transferring mechanism in printing press) whose business would be hurt if patent at issue (improved automatic feed and delivery for press) was voided
RE: Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.
Facts of the case
Acting on behalf of prescription drug consumers, the Virginia Citizens Consumer Council challenged a Virginia statute that declared it unprofessional conduct for licensed pharmacists to advertise their prescription drug prices. On appeal from an adverse ruling by a three-judge District Court panel, the Supreme Court granted the Virginia State Board of Pharmacy review.
Question
Is a statutory ban on advertising prescription drug prices by licensed pharmacists a violation of “commercial speech” under the First Amendment?
Conclusion (7 – 1)
Yes. In a 7-to-1 opinion, the Court held that the First Amendment protects willing speakers and willing listeners equally. The Court noted that in cases of commercial speech, such as price advertising, freedom of speech protections apply just as they would to noncommercial speech. Even speech that is sold for profit, or involves financial solicitations, is protected. The Court concluded that although the Virginia State Board of Pharmacy has a legitimate interest in preserving professionalism among its members, it may not do so at the expense of public knowledge about lawful competitive pricing terms. (oyez)
Dissent
Justice Rehnquist was the lone dissenter in this case.[12] He lamented the majority’s decision to elevate the advertisement of products to the level of the ideological “marketplace of ideas”,[13] feeling that this was an overextension of First Amendment doctrine. He used a type of slippery slope argument to describe the potential consequences of this decision; specifically, he worried that this ruling would allow the promotion of consumption of liquor, cigarettes, and other products which states had traditionally tried to discourage.[14]
He indirectly hearkened back to the Lochner era economic due process cases, accusing the court of writing its own economic policy into the law, when such a regulation should be within the police power of the state. He pointed to the potentially misleading nature of commercial speech, and suggested that consumers who truly needed such information could easily seek it out themselves.
He concluded by arguing that the majority has not only failed to accord proper weight to the judgment of the Virginia State Legislature, but that the protection of the First Amendment ought to be limited to political and social issues.[15] (wiki)
Ugh….I’m glad Justice Rehnquist’s dissent went nowhere.
I agree this is an economic-rights case, but for me that’s not a dealbreaker as it was for Rehnquist.
I don’t think the Constitution awards businesses and corporations an open-ended right to exploit the public, but selling honest goods at honest prices isn’t exploitation and there should be room in the Constitution to protect that.
Ah, the “Conservative” Burger Court that voted 7-2 for Roe v Wade. That Tricky Dick knew how to pick em’,
Possibly! The conductor “forcibly put him off at the next station, notwithstanding he resisted as much as he could, and in so doing injured him in body and health”. Id. at 148.