Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748; 96 S. Ct. 1817; 48 L. Ed. 2d 346 (1976)

Facts—The appellees, a consumer group, challenged a Virginia law that states that a pharmacist 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 by prescription.” The Virginia State Board of Pharmacy was the licensing authority, and a pharmacist was subject to a civil monetary penalty, or to revocation or suspension of his license.

Question—Does the Virginia statute making it unprofessional conduct for a pharmacist to advertise prescription drug prices violate the First Amendment rights of drug consumers?

Decision—Yes.

Reasons—J. Blackmun (7–1). Freedom of speech, noted the Court, “presupposes a willing speaker. But where a speaker exists, as in the case here, the protection afforded is to the communication, to its source and to the recipients both.” If there is a right to advertise, there is a reciprocal right to receive the advertising. The contention that the advertisement of the prescription drug prices is outside the First Amendment because it is “commercial speech” is rejected. The Court said it was not unmindful of the fact that some commercial speech can be regulated by the state, for example, untruthful speech or wholly false, deceptive, or misleading advertising; and some other speech, for example in the electronic broadcast media is outside the confines of its decision. But society has a strong interest in the free flow of commercial information. Virginia argues that it would protect its citizens from fraud and maintain professional standards but its protectiveness, as to competing drug prices, rests in large measure “on the advantages of their being kept in ignorance.”

J. Rehnquist wrote a dissent protesting against the elevation of protection for commerce speech to the same level as political speech.

Note—Virginia State Board logically followed from Bigelow v. Virginia (1975), involving a newspaper advertisement. It, in turn, led to other commercial speech cases, such as contraception advertising in Carey v. Population Services, 431 U.S. 678; legal advertising, in Bates v. State Bar, 433 U.S. 350 (1977); and real estate “for sale” and “sold” signs in Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977). A novel case involving free speech and advertising occurred in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (478 U.S. 328 [1986]) in which the Court upheld a law restricting advertising by a legal gambling casino against the charge of free speech, due process, and equal protection. Puerto Rico intended to appeal to tourists who want to gamble but not to its own citizens. The Court subsequently overturned that decision in 44 Liquormart, Inc. v. Rhode Island (1996).