JUSTICE MARSHALL delivered the opinion of the Court.
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.
Section 3001(e)(2) states that "[a]ny unsolicited advertisement of matter which is designed, adapted, or intended for preventing conception is nonmailable matter, shall not be carried or delivered by mail, and shall be disposed of as the Postal Service directs . . . ."
Appellee Youngs Drug Products Corp. (Youngs) is engaged in the manufacture, sale, and distribution of contraceptives. Youngs markets its products primarily through sales to chain warehouses and wholesale distributors, who in turn sell contraceptives to retail pharmacists, who then sell those products to individual customers. Appellee publicizes the availability and desirability of its products by various methods. This litigation resulted from Youngs' decision to undertake a campaign of unsolicited mass mailings to members of the public. In conjunction with its wholesalers and retailers, Youngs seeks to mail to the public on an unsolicited basis three types of materials:
— multi-page, multi-item flyers promoting a large variety of products available at a drugstore, including prophylactics;
— flyers exclusively or substantially devoted to promoting prophylactics;
— informational pamphlets discussing the desirability and availability of prophylactics in general or Youngs' products in particular.
The District Court determined that § 3001(e)(2), by its plain language, prohibited all three types of proposed mailings. The court then addressed the constitutionality of the statute as applied to these mailings. Finding all three types of materials to be commercial solicitations, the court considered the constitutionality of the statute within the framework established by this Court for analyzing restrictions imposed on commercial speech. The court concluded that the statutory prohibition was more extensive than necessary to the interests asserted by the Government, and
Appellants brought this direct appeal pursuant to 28 U. S. C. § 1252, see United States v. Darusmont, 449 U.S. 292, 293 (1981), and we noted probable jurisdiction, 456 U.S. 970 (1982).
Beginning with Bigelow v. Virginia, 421 U.S. 809 (1975), this Court extended the protection of the First Amendment to commercial speech.
For example, as a general matter, "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department of Chicago v. Mosley, 408 U.S. 92, 95(1972). With respect to noncommercial speech, this Court has sustained content-based restrictions only in the most extraordinary circumstances.
Because the degree of protection afforded by the First Amendment depends on whether the activity sought to be regulated constitutes commercial or noncommercial speech, we must first determine the proper classification of the mailings at issue here. Appellee contends that its proposed mailings constitute "fully protected" speech, so that § 3001(e)(2) amounts to an impermissible content-based restriction
Most of appellee's mailings fall within the core notion of commercial speech — "speech which does `no more than propose a commercial transaction.' " Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., supra, at 762, quoting Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 385 (1973).
The combination of all these characteristics, however, provides strong support for the District Court's conclusion that the informational pamphlets are properly characterized as commercial speech.
We conclude, therefore, that all of the mailings in this case are entitled to the qualified but nonetheless substantial protection accorded to commercial speech.
"The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation." Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S., at 563. In Central Hudson we adopted a four-part analysis for assessing the validity of restrictions on commercial speech. First, we determine whether the expression is constitutionally protected. For commercial speech to receive such protection, "it at least must concern lawful activity and not be misleading." Id., at 566. Second, we ask whether the governmental interest is
We turn first to the protection afforded by the First Amendment. The State may deal effectively with false, deceptive, or misleading sales techniques. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 771-772. The State may also prohibit commercial speech related to illegal behavior. Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S., at 388. In this case, however, appellants have never claimed that Youngs' proposed mailings fall into any of these categories. To the contrary, advertising for contraceptives not only implicates " `substantial individual and societal interests' " in the free flow of commercial information, but also relates to activity which is protected from unwarranted state interference. See Carey v. Population Services International, 431 U.S. 678, 700-701 (1977), quoting Virginia Pharmacy Board, supra, at 760, 763-766.
In particular, appellants assert that the statute (1) shields recipients of mail from materials that they are likely to find offensive and (2) aids parents' efforts to control the manner in which their children become informed about sensitive and important subjects such as birth control.
Recognizing that their reliance on this interest is "problematic,"
To begin with, § 3001(e)(2) provides only the most limited incremental support for the interest asserted. We can reasonably assume that parents already exercise substantial control over the disposition of mail once it enters their mailboxes. Under 39 U. S. C. § 3008, parents can also exercise control over information that flows into their mailboxes. And parents must already cope with the multitude of external stimuli that color their children's perception of sensitive subjects.
This marginal degree of protection is achieved by purging all mailboxes of unsolicited material that is entirely suitable for adults. We have previously made clear that a restriction of this scope is more extensive than the Constitution permits, for the government may not "reduce the adult population . . . to reading only what is fit for children." Butler v. Michigan,
Section 3001(e)(2) is also defective because it denies to parents truthful information bearing on their ability to discuss birth control and to make informed decisions in this area.
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
JUSTICE BRENNAN took no part in the decision of this case.
JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR joins, concurring in the judgment.
Our earlier cases have developed an analytic framework for commercial speech cases.
The material that Youngs seeks to mail concerns lawful activity and is not misleading. The Postal Service does not contend otherwise.
The Postal Service does contend that the Government has substantial interests in "aiding parents' efforts to discuss sensitive and important subjects such as birth control with their
The first of these interests is undoubtedly substantial. Contraception is an important and sensitive subject, and parents may well prefer that they provide their children with information on contraception in their own way. "[P]arents have an important `guiding role' to play in the upbringing of their children . . . which presumptively includes counseling them on important decisions." H. L. v. Matheson, 450 U.S. 398, 410 (1981), quoting Bellotti v. Baird, 443 U.S. 622, 637 (1979). For this reason, among others, "constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. . . . The legislature could properly conclude that parents . . . , who have this primary responsibility for children's well being are entitled to the support of laws designed to aid discharge of that responsibility." Ginsberg v. New York, 390 U.S. 629, 639 (1968).
The second interest advanced by the Postal Service is also substantial. We have often recognized that individuals have a legitimate "right to be left alone" "in the privacy of the home," FCC v. Pacifica Foundation, 438 U.S. 726, 748
The questions whether § 3001(e)(2) directly advances these interests, and whether it is more extensive than necessary, are more problematic. Under 39 U. S. C. § 3008, an individual can have his name removed from Youngs' mailing list if he so wishes. See Rowan v. Post Office Dept., supra (holding § 3008 constitutional). Thus, individuals are able to avoid the information in Youngs' advertisements after one exposure. Furthermore, as we noted in Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S. 530, 542 (1980), the recipient of Youngs' advertising "may escape exposure to objectionable material simply by transferring [it] from envelope to wastebasket."
Section 3001(e)(2) is also broader than is necessary because it completely bans from the mail unsolicited materials that are suitable for adults. The Government may not "reduce the adult population . . . to reading only what is fit for children." Butler v. Michigan, 352 U.S. 380, 383 (1957). Narrower restrictions, such as the provisions of 39 U. S. C. § 3008 and restrictions of the kind suggested by the District Court in this case, can fully serve the Government's interests.
The Postal Service argues that Youngs can obtain permission to send its advertisements by conducting a "premailing." Youngs could send letters to the general public, asking whether they would be willing to receive information about contraceptives, and send advertisements only to those who respond. In a similar vein, the Postal Service argues that Youngs can communicate with the public otherwise than through the mail.
Thus, under this Court's cases the intrusion generated by Youngs' proposed advertising is relatively small, and the restriction imposed by § 3001(e)(2) is relatively large. Although this restriction directly advances weighty governmental interests, it is somewhat more extensive than is necessary to serve those interests. On balance I conclude that this restriction on Youngs' commercial speech
JUSTICE STEVENS, concurring in the judgment.
Two aspects of the Court's opinion merit further comment: (1) its conclusion that all of the communications at issue are properly classified as "commercial speech" (ante, at 68); and (2) its virtually complete rejection of offensiveness as a possibly
Even if it may not intend to do so, the Court's opinion creates the impression that "commercial speech" is a fairly definite category of communication that is protected by a fairly definite set of rules that differ from those protecting other categories of speech. That impression may not be wholly warranted. Moreover, as I have previously suggested, we must be wary of unnecessary insistence on rigid classifications, lest speech entitled to "constitutional protection be inadvertently suppressed." Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 579 (1980) (STEVENS, J., concurring in judgment).
I agree, of course, that the commercial aspects of a message may provide a justification for regulation that is not present when the communication has no commercial character. The interest in protecting consumers from commercial harm justifies a requirement that advertising be truthful; no such interest applies to fairy tales or soap operas. But advertisements may be complex mixtures of commercial and noncommercial elements: the noncommercial message does not obviate the need for appropriate commercial regulation (see ante, at 68); conversely, the commercial element does not necessarily provide a valid basis for noncommercial censorship.
Appellee's pamphlet entitled "Plain Talk about Venereal Disease" highlights the classification problem. On the one hand, the pamphlet includes statements that implicitly extol the quality of the appellee's products.
I have not yet been persuaded that the commercial motivation of an author is sufficient to alter the state's power to regulate speech. Anthony Comstock surely had a constitutional right to speak out against the use of contraceptives in his day. Like Comstock, many persons today are morally opposed to contraception, and the First Amendment commands the government to allow them to express their views in appropriate ways and in appropriate places. I believe that Amendment affords the same protection to this appellee's views regarding the hygienic and family planning advantages of its contraceptive products.
Because significant speech so often comprises both commercial and noncommercial elements, it may be more fruitful to focus on the nature of the challenged regulation rather
Assuming that this case deals only with commercial speech, the Court implies, if it does not actually hold, that the fact that protected speech may be offensive to some persons is not a "sufficient justification for a prohibition of commercial speech." Ante, at 72. I think it essential to emphasize once again, however, that
The statute at issue in this case censors ideas, not style. It prohibits appellee from mailing any unsolicited advertisement of contraceptives, no matter how unobtrusive and tactful; yet it permits anyone to mail unsolicited advertisements of devices intended to facilitate conception, no matter how coarse or grotesque. It thus excludes one advocate from a forum to which adversaries have unlimited access. I concur in the Court's judgment that the First Amendment prohibits the application of the statute to these materials.
The Postal Service's interpretation of § 3001(e)(2) resulted from the decision in Associated Students for Univ. of Cal. at Riverside v. Attorney General, 368 F.Supp. 11 (CD Cal. 1973), in which a three-judge court held that the prohibition on the mailing of "advertisements" could not constitutionally be expanded beyond the commercial sense of the term, id., at 24.
"First, they must be mailed in an envelope that completely obscures from the sight of the addressee the contents. Second, the envelope must contain a prominent notice stating in capital letters that the enclosed material has not been solicited in any way by the recipient. Third, the envelope must contain a prominent warning that the contents are `promotional material for contraceptive products.' Fourth, the envelope must contain a notice, in less prominent lettering than the warning and the other notice, but not in `fine print,' that federal law permits the recipient to have his name removed from the mailing list of the mailer of that envelope, and citing to 39 U. S. C. § 3008(a)." 526 F.Supp. 823, 830 (1981).
Youngs did not file a cross-appeal challenging these restrictions, and their propriety is therefore not before us in this case.
The other informational pamphlet, "Plain Talk about Venereal Disease," repeatedly discusses condoms without any specific reference to those manufactured by appellee. The only reference to appellee's products is contained at the very bottom of the last page, where appellee is identified as the distributor of Trojan-brand prophylactics. That a product is referred to generically does not, however, remove it from the realm of commercial speech. For example, a company with sufficient control of the market for a product may be able to promote the product without reference to its own brand names. Or a trade association may make statements about a product without reference to specific brand names. See, e. g., National Comm'n on Egg Nutrition v. FTC, 570 F.2d 157 (CA7 1977) (enforcing in part a Federal Trade Commission order prohibiting false and misleading advertising by an egg industry trade association concerning the relationship between cholesterol, eggs, and heart disease). In this case, Youngs describes itself as "the leader in the manufacture and sale" of contraceptives. Brief for Appellee 3.
The New Constitutional Doctrine, 44 U. Chi. L. Rev. 205, 236 (1976). Of course, a different conclusion may be appropriate in a case where the pamphlet advertises an activity itself protected by the First Amendment. See Murdock v. Pennsylvania, 319 U.S. 105 (1943) (advertisement for religious book cannot be regulated as commercial speech); Jamison v. Texas, 318 U.S. 413 (1943). This case raises no such issues. Nor do we mean to suggest that each of the characteristics present in this case must necessarily be present in order for speech to be commercial. For example, we express no opinion as to whether reference to any particular product or service is a necessary element of commercial speech. See Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, Sourcebook on Corporate Image and Corporate Advocacy Advertising, 95th Cong., 2d Sess., 1149-1337 (Comm. Print 1978) (FTC Memorandum concerning corporate image advertising).
Of course, the availability of alternative means of communication is relevant to an analysis of "time, place and manner" restrictions. See Consolidated Edison Co. v. Public Service Comm'n of New York, supra, at 541, n. 10; Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93 (1977). Appellants do not, however, attempt to justify § 3001(e)(2) as a time, place, or manner restriction. Nor would such a characterization be tenable in light of § 3001(e)(2)'s content-based prohibition. See Consolidated Edison Co. v. Public Service Comm'n of New York, supra, at 536; Linmark Associates, Inc. v. Willingboro, supra, at 93-94; Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975).
Youngs did not file a cross-appeal challenging these restrictions, so I see no occasion to consider whether the District Court acted properly. Nor would I consider whether these restrictions would be valid if Congress were to enact them.
"Ethical Manufacturers require strict standards of strength, durability, and reliability in manufacturing condoms. (prophylactics) Each condom must be individually tested to assure a quality condom." App. to Brief for Appellee 31.
"WHAT ARE THE EARLY SYMPTOMS OR SIGNS OF SYPHILIS?
"The first sign of infection is a single, painless sore where the germ has entered the body. This sore is called a Chancre (pronounced shank-er). It appears between two to six weeks after exposure to the infected person. This Chancre or sore will disappear even without treatment, but this only means that the disease has gone deeper into the body. The disease is not cured. The secondary stage of Syphilis which begins two to six months after the Chancre, can include skin rashes over all or part of the body, baldness, sore throat, fever and headaches. Even these will disappear without treatment, but the disease is still in the body . . . just waiting to create such `final' problems as crippling the nervous system, syphilitic insanity, heart disease and death." Id., at 28.