Bolger v. Youngs Drug Products Corporation
Decided on June 24, 1983; 463 US 60


A pharmaceutical company sues for the right to mail unsolicited advertisements about venereal disease treatment products

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Civil Rights (privacy), First Amendment, Commercial Speech

B. Legal Question Presented:

Is Title 39 U.S.C. 3001(e)(2) that prohibits the mailing of unsolicited advertisements for contraceptives unconstitutional and a violation of the First Amendment right?
II. CASE SUMMARY:

A. Background:

A manufacturer of contraceptives, appellee Youngs Drug Products Corporation (Youngs), proposed to mail to the public unsolicited advertisements including informational pamphlets promoting its products and also discussing venereal disease and family planning. The Postal Service (appellant) notified Youngs that the proposed mailings would violate Title 39 U.S.C. 3001(e)(2).  Youngs then brought an action for declaratory and injunctive relief in the Federal District Court for the District of Columbia.

Finding all three types of materials to be commercial solicitations, the District Court considered the constitutionality of the above statute within the framework established by the court for analyzing restrictions imposed on commercial speech.

The District Court concluded that the statutory prohibition was more extensive than necessary to the interests asserted by the Government, it therefore held that the statute's absolute ban on the three types of mailings violated the First Amendment.

The Postal Service (headed by Postmaster General William Bolger) appealed the ruling directly to the US Supreme Court and the high court accepted the case for review.

B. Counsel of Record:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Jerold S. Solovy argued the cause for appellee. With him on the brief were Robert L. Graham and Laura A. Kaster.
David A. Strauss argued the cause for appellants. With him on the briefs were Solicitor General Lee and Deputy Solicitor General Geller.
C. The Arguments:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Michael L. Burack, Charles S. Sims, and Janet Benshoof filed a brief urging affirmance for the American Civil Liberties Union as amicus curiae.

Also, Robert D. Joffe, Eve W. Paul, and Dara Klassel filed a brief for the Planned Parenthood Federation of America, Inc., et al. as amici curiae urging affirmance.
No amici curiae briefs were filed on behalf of appellant.
IV. THE SUPREME COURT'S DECISION:

"We specifically declined to recognize a distinction between commercial and noncommercial speech that would render this interest a sufficient justification for a prohibition of commercial speech.

The second interest asserted by appellants – aiding parents' efforts to discuss birth control with their children –  is undoubtedly substantial. '[P]arents have an important 'guiding role' to play in the upbringing of their children... which presumptively includes counseling them on important decisions...'

Title 39 U.S.C. 3001(e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. The District Court held that, as applied to appellee's mailings, the statute violates the First Amendment. We affirm...

We thus conclude that the justifications offered by appellants are insufficient to warrant the sweeping prohibition on the mailing of unsolicited contraceptive advertisements. As applied to appellee's mailings, 3001(e)(2) is unconstitutional. The judgment of the District Court is therefore affirmed...

Held:  Judgment affirmed."
Justice Vote: 8 Pro vs. 0 Con

  • Marshall, T.  Pro (Wrote the majority opinion)
  • Burger, W.  Pro (Voted with the majority)
  • White, B.  Pro (Voted with the majority)
  • Blackmun, H.  Pro (Voted with the majority)
  • Powell, L.  Pro (Voted with the majority)
  • Rehnquist, W.  Pro (Wrote concurring opinion)
  • Stevens, J.  Pro (Wrote a concurring opinion)
  • O’Connor, S.  Pro (Voted with the majority, joined Rehnquist’s concurrence)
  • Brennan, W. Did not participate in the decision making process of the case
V. A WIN OR LOSS FOR THE ACLU?

The ACLU filed as amicus urging affirmance; the US Supreme Court affirmed the ruling of the District Court for the District of Columbia in an 8-0 vote, giving the ACLU an apparent win.