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Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc

    Brief Fact Summary. Appellees the Virginia Citizens Consumer Council, Inc. attack a Virginia Code Section that prohibits the publishing and advertising of prescription drug prices by a pharmacist. Appellees claim that this section violates the First and Fourteenth Amendments rights to free speech by the pharmacists. The District Court agreed with Appellees, declaring this portion of the law void, and the Virginia State Board of Pharmacy (Appellants) appeals.

    Synopsis of Rule of Law. Commercial speech, like other forms of speech, is protected speech under the First and Fourteenth Amendments. But, commercial speech may be regulated provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and in doing so they leave open ample alternative channels for communication of the information.

    Facts. The Appellees attack, as violative of the First and Fourteenth Amendments, a portion of Section: 54-524.35 of Va.Code Ann. (1974). This portion states that a pharmacist licensed in Virginia is guilty of unprofessional conduct if he “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.” The District Court declared this portion void for violating the First and Fourteenth Amendment.

    Issue.
    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?
    Whether there is a First Amendment exception for commercial speech in the instance in which speech does no more than propose a commercial transaction?

    Held. Yes to (a) and No to (b).
    It is a protection that is enjoyed by all appellees as recipients of the information. For where a speaker exists, the protection afforded is to the communication, to its source and to its recipients both. If there is a right to advertise, there is a reciprocal right to receive the advertising, and it may be asserted by the Appellees.
    Commercial speech is protected speech under the First Amendment. However, some forms of commercial speech may be regulated.
    Commercial speech may be regulated provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and in doing so they leave open ample alternative channels for communication of the information. This allows the State to ensure that the stream of commercial information flows cleanly as well as freely. But, in this instance, the Virginia statute, which singles out speech of a particular content and completely prevent its dissemination, plainly exceeds this allowed sphere of regulation.

    Dissent. The dissent feels that the Court’s decision is far reaching; this opinion will open the way for active promotion of prescription drugs, liquor, cigarettes and other products the use of which has been though desirable to discourage. But, this decision by the Court allows such promotion to be protected by the First Amendment, as long as it is not misleading or promote illegal conduct. In the Court’s decision it also overrule a legislative determination that such advertising should not be allowed and has done so on behalf of a consumer group which is not directly disadvantaged by the statute, and therefore causes this Justice to disagree with the opinion of the Court.
    Concurrence.
    Wants the holding limited to this instance, and states that different factors would govern if the Court was faced with a law regulating or prohibiting advertising by the traditional learned professions of medicine or law.
    Says that the Court’s decision calls into question the constitutional legitimacy of every state and federal law regulating false or deceptive advertisement. This concurrence explains why this decision does not preclude such regulation.

    Discussion. This case defines the limitations of the First and Fourteenth Amendment protections involving commercial speech. This case holds that commercial speech is like other forms of speech, and therefore the dissemination of this type of content is protected. Similar to other forms of speech, the government can still regulate if it feels that it has a legitimate interest in the regulation. The outcome of this case seems to hold that commercial speech is the same as other content driven forms of speech in the way it will be addressed in a First Amendment analysis. But, the Court seems to hint that the government has a higher interest in regulating this speech than it does ordinary speech, therefore giving it the power to regulate it more diligently. It is important to note that any oversight the government provides must defend its reasoning and do so through the least restrictive means to achieve its goal.


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