Academic journal article The William and Mary Bill of Rights Journal

No Regrets (Almost): After Virginia Board of Pharmacy

Academic journal article The William and Mary Bill of Rights Journal

No Regrets (Almost): After Virginia Board of Pharmacy

Article excerpt


My basic idea behind the case that became Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.1 (Virginia Pharmacy) was that the emphasis under the First Amendment should be on the impact of denying consumers access to useful information, rather than on the restrictions on the seller or would-be speaker.2 Virginia Pharmacy involved a total ban on the advertising of the price of prescription drugs by pharmacists.3 Pharmacists could advertise, and they could compete on price for prescription drugs, but they could not tell anyone what they were charging for a drug, unless the customer came into the store or called on the phone.4 Many consumers were living on low or fixed incomes, and drug prices were a significant part of their expenses, yet they were being denied access to the information needed to find the most affordable drug that met their needs.5

At the time the case was filed, I had just begun to serve as the director of the newly formed Public citizen Litigation Group, with Ralph Nader as my boss. one of our goals was to increase the availability and affordability of legal services for ordinary people, and I had identified the total ban on all lawyer advertising as a promising area to challenge. The prescription drug ban on price advertising was chosen as our first advertising case because, while false advertising can be banned, the Virginia law applied to useful information whose truth (accuracy) could easily be verified. With a win here, we planned to move on to the lawyer advertising ban, with an intermediate stop in a case in which the local medical society threatened to discipline doctors if they provided factual information, such as where they went to medical school, whether they were board certified in a specialty, whether they spoke a foreign language, and whether they accepted Medicare and Medicaid. Thus, the application of Virginia Pharmacy to lawyer advertising was not simply a side effect, but where we hoped to end. And i was prepared for a question at oral argument on that very subject, which came out in a somewhat different form than I had expected.6

In the years since then, people who knew of my connection to Virginia Pharmacy would ask whether I was pleased with how the case had played out, especially regarding lawyer advertising, which i took to mean the kind featured on late night television. My answer was generally along the lines of not liking some aspects, but that the ability of consumers to obtain important information from lawyer advertising far outweighed the sometimes outlandish ways in which the information was conveyed. When the invitation to participate in this symposium arrived, I decided to take the opportunity to look over the cases in the supreme Court and the circuit courts of appeals to see where they had taken the Virginia Pharmacy case and see whether my answer was still, "No regrets."

Before looking at those cases, I need to explain my criteria for regrets. Until Virginia Pharmacy, commercial speech had no First Amendment protection, and afterwards, particularly after Central Hudson Gas & Electric Corp. v. Public Service Commission of New York,7 it received substantial protection, although less than political or ideological speech. Our argument in Virginia Pharmacy did not urge the Court to create a lower category of speech, but that is how it ended up.8 When I was asked about how the case had played out, the questions were not directed toward whether the Court had given too little protection for commercial speech, but too much. Therefore, in this Essay, I will not discuss cases in which I think the Court restricted too much speech (often as applied to lawyers), but only the most significant ones where it gave what I consider too much protection, i.e., the Court failed to consider other important interests besides that of the speaker.

There is a second area that I have chosen to omit from any extended discussion. This area involves cases in which a government agency has directed a person (generally a business) to include additional information in an advertisement or other statement that the business is required or has chosen to disseminate, referred to in some contexts as compelled speech. …

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