In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), the U.S. Supreme Court for the first time explicitly ruled that purely commercial speech deserves First Amendment protection. The Court thereby abandoned the view from its discredited decision in Valentine v. Chrestensen (1942), in which it ruled that there were no constitutional restraints on regulating purely commercial advertising.
Virginia citizens challenged law prohibiting advertising prescription drug prices
The case involved a Virginia statute that prohibited pharmacists from advertising prescription drug prices, which purportedly served the substantial state interest of ensuring professionalism among pharmacists. Two nonprofit organizations — the Virginia Citizens Consumer Council, Inc., and the Virginia State AFL-CIO — and several individual prescription drug consumers subsequently challenged the law on First Amendment grounds.
Court struck down law
A three-judge panel at the federal district court level invalidated the law, and the state appealed to the U.S. Supreme Court. In its May 1976 opinion, the Court affirmed the lower court’s ruling in a 7-1 (recently confirmed justice John Paul Stevens did not participate) decision. Writing for the majority, Justice Harry A. Blackmun noted that “the particular consumer’s interest in the free flow of commercial information . . . may be as keen, if not keener by far, than his interest in the day’s most urgent political debate” and that “the free flow of commercial information is indispensable.”
Court ruled no constitutional restraints on regulating purely commercial advertising
Blackmun acknowledged the state’s interest in maintaining professionalism among pharmacists but noted that “the advertising ban does not directly affect professional standards one way or the other.” He also noted that the state’s interest appeared to be paternalistically protecting consumers, writing in an oft-quoted passage: “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.”
Blackmun noted that misleading, false, or illegal commercial speech could still be regulated. Chief Justice Warren E. Burger and Justice Potter Stewart wrote concurring opinions, with Burger emphasizing that advertising by the learned professions of medicine and law could still be prohibited and Stewart explaining why the majority opinion did not imperil deceptive advertising laws.
Justice William H. Rehnquist authored the lone dissenting opinion, warning with some prescience: “Under the Court’s opinion the way will be open not only for dissemination of price information but for active promotion of prescription drugs, liquor, cigarettes, and other products the use of which it has previously been thought desirable to discourage.”