WILLIAM F. BOLGER, ET AL., APPELLANTS v. YOUNGS DRUG PRODUCTS CORP. No. 81-1590 In the Supreme Court of the United States October Term, 1981 On Appeal from the United States District Court for the District of Columbia Jurisdictional Statement PARTIES TO THE PROCEEDING In addition to the parties listed in the caption, the appellants are the United States Postal Service and William French Smith, Attorney General. TABLE OF CONTENTS Page Opinion below Jurisdiction Statute involved =statement The question is substantial Conclusion Appendix A Appendix B Appendix C OPINION BELOW The opinion of the district court (App. A, infra, 1a-18a) is reported at 526 F.Supp. 823. JURISDICTION The order of the district court (App. B, infra, 19a-20a) was entered on September 30, 1981, and a notice of appeal to this Court (App. C, infra, 21a-22a) was filed on October 30, 1981. On December 23, 1981, the Chief Justice extended the time for docketing the appeal to and including February 27, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1252. United States v. Darusmont, 449 U.S. 292, 293 (1981). STATUTE INVOLVED 39 U.S.C. 3001(e) provides: (1) Any matter which is unsolicited by the addressee and which is designed, adapted, or intended for preventing conception (except unsolicited samples thereof mailed to a manufacturer thereof, a dealer therein, a licensed physician or surgeon, or a nurse, pharmacist, druggist, hospital, or clinic) is nonmailable matter, shall not be carried or delivered by mail, and shall be disposed of as the Postal Service directs. (2) Any 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 unless the advertisement -- (A) is mailed to a manufacturer of such matter, a dealer, therein, a licensed physician or surgeon, or a nurse, pharmacist, druggist, hospital, or clinic; or (B) accompanies in the same parcel any unsolicited sample excepted by paragraph (1) of this subsection. An advertisement shall not be deemed to be unsolicited for the purposes of this paragraph if it is contained in a publication for which the addressee has paid or promised to pay a consideration or which he has otherwise indicated he desires to receive. QUESTION PRESENTED Whether 39 U.S.C. 3001(e)(2), which prohibits the mailing of unsolicited advertisements for contraceptives, is unconstitutional as applied to appellee's commercial mailings. STATEMENT Appellee is a manufacturer and distributor of contraceptive devices. In order to promote those products, appellee determined to embark on a campaign of unsolicited mailings to members of the public at large (App. A, infra, 1a-2a). In early 1979, the Postal Service traced an unsolicited advertisement for contraceptives to a wholesaler of appellee's products (id. at 4a). It advised the wholesaler of 39 U.S.C. 3001(e)(2), which declares that an "unsolicited advertisement" of a contraceptive device "is nonmailable matter" unless it is mailed to a manufacturer, dealer, physician, pharmacist, or hospital, or is contained in a publication that the addressee has requested. Postal Service regulations, of which the wholesaler and appellee were subsequently informed, specifically exempt from this prohibition materials in which "the mailer has no commercial interest" (Domestic Mail Manual (DMM) Section 123.434 (July 7, 1981)). /1/ The Postal Service considered and rejected appellee's legal argument that Section 3001(e) could not constitutionally prohibit its proposed mailings. Appellee then brought this action, seeking declaratory and injunctive relief, in the United States District Court for the District of Columbia. Appellee offered three types of unsolicited promotional materials as examples of its mailings. The district court described these as: "informational pamphlets promoting the desirability and availability of prophylactics in general, and (appellee's) products in particular"; "flyers exclusively or substantially devoted to promoting prophylactics in general, those made by (appellee), and/or those stocked * * * by a particular drugstore * * *"; and "multi-page, multi-item flyers * * * promoting a large variety of products * * * including prophylactics" (App. A, infra, 1a-21). /2/ Appellee asserted that Section 3001(e), as applied to its mailings, violated the First, Fifth, and Ninth Amendments (App. A, infra, 5a). The district court held that "all three types of proposed mailings are commercial solicitations" because they are "promotional materials" in which appellee "has a commercial interest" (App. A, infra, 7a, 8a n.5). Accordingly, the court considered the constitutionality of Section 3001(e)(2) in light of the standards prescribed by Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). /3/ The court also noted, however, that it considered appellee's advertisements to be "tasteful expressions" (App. A, infra, 2a), and it specifically reserved judgment on the constitutionality of restrictions on "promotion * * * for contraceptive materials * * * done in a tasteless or palpably offensive style" (id. at 14a n.8). Applying the Central Hudson standards, the district court concluded that "the government does have a substantial interest" in enforcing Section 3001(e)(2). The court identified two components of this substantial interest -- the "protection of the privacy of individuals in their homes from even one mailing that, because of its sexual subject matter, is likely to offend some sensitive addresses," and the "interest in preventing such material from falling into the hands of the children of addressees who do not wish their children to be exposed to it" (App. A, infra, 10a-11a). The district court also ruled that Section 3001(e) "directly advance(s)" these governmental interests (App. A, infra, 11a; emphasis in original). Indeed, the court stated, Section 3001(e) "would seem to be quite effective in dealing with the problem of unwanted mailings. * * * (S)ince, generally speaking, noncommercial mailers do not mail the avalanche of materials that commercial mailers do, a ban on commercially-inspired mailings will go far to achieve the governmental objective involved in this case" (App. A, infra, 12a; footnote omitted). In any event, the court said, Central Hudson required only that a restriction directly advance the government's interest, not that it be a "complete solution" (ibid.). The district court nonetheless concluded that Section 3001(e)(2) violates the First Amendment "because it is 'more extensive than is necessary to serve the (governmental interest'" (App. A, infra, 12a, quoting Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 572; brackets in original). The court "devised a less restrictive alternative" (App. A, infra, 17a), which it then ordered into effect (App. B, infra, 19a-20a). That alternative consisted, first, of permitting "multi-item drugstore flyers containing tasteful promotion of contraceptives" to be mailed without restriction, at least so long as "the ad for contraceptives (is) * * * buried in the middle pages of the flyer" and does not "appear() on the front pages of the flyer, or by some other manner of graphic design dominate() the rest of the flyer" (App. A, infra, 13a, 16a & n.10). The court ordered that "flyers and pamphlets devoted exclusively or substantially to promoting the desirability or availability of contraceptives" would be mailable only if they satisfied certain conditions (id. at 15a): 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. Section 3008(a). /4/ The district court acknowledged that its order did not fully serve all the objectives of Section 3001(e)(2) and that "(i)n particular, these requirements do not provide absolute protection against having material concerning contraception occasionally fall into the hands of inquisitive children" (App. A, infra, 18a). But the court declared that it was "satisfied that it has struck the balance that the Constitution mandates" (ibid.). THE QUESTION IS SUBSTANTIAL 39 U.S.C. 3001(e)(2), which applies only to unsolicited advertisements for contraceptive devices mailed to members of the general public for commercial purposes, places, at most, a very limited burden on First Amendment rights. The district court conceded that Section 3001(e)(2) directly advances the government's substantial interest in enabling families to avoid unwanted and offensive promotional materials that may fall into the hands of children. The district court nevertheless invalidated the statute because it believed it could devise a superior alternative scheme. But "(a) judge would be unimaginative indeed if he could not come up with something a little less 'drastic' or a little less 'restrictive' in almost any situation, and thereby * * * strike legislation down" (Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173, 188-189 (1979) (Blackmun, J., concurring)). As the district court acknowledged, its approach is not as effective as section 3001(e)(2) in protecting the governmental interests involved; in addition, the district court's approach may in the end place a greater burden on First Amendment interests than Section 3001(e)(2). Because there was an insufficient basis for the district court to upset the balance Congress struck among the important interests implicated by Section 3001(e)(2), review by this Court is warranted. 1. "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 Commission, supra, 447 U.S. at 563. Moreover, "a court may not escape the task of assessing the First Amendment interest allegedly served by the regulation." Bigelow v. Virginia, 421 U.S. 809, 826 (1975); see Metromedia, Inc. v. City of San Diego, No. 80-195 (July 2, 1981), slip op. 10-11, 15, 25 (plurality opinion); Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 91 (1977). Section 3001(e)(2) imposes, at most, a minimal burden on First Amendment rights. On its face, it applies only to "advertisements"; the Postal Service has further interpreted it not to apply where the mailer has no "commercial interest" in the materials. /5/ Commercial speech, of course, occupies "a subordinate position in the scale of First Amendment values" and is subject to greater regulation than fully protected expression. Ohralik v. Ohio State Bar Association, 436 U.S. 447, 456 (1978); see, e.g., Metromedia, Inc. v. City of San Diego, supra, slip op. 13-15 (plurality opinion). /6/ Thus this case does not involve the activities -- even the unsolicited mailings -- of individuals or organizations committed to advocating birth control or family planning as a moral, political, or ideological matter; it concerns only "solicitation for pecuniary gain" (In re Primus, 436 U.S. 412, 422 (1978)). Moreover, Section 3001(e)(2) is in no sense comparable to the state statute, invalidated in Carey v. Population Services International, 431 U.S. 678, 700-702 (1977), that sought "to suppress completely any information about the availability and price of contraceptives" (id. at 700). Advertising that does not rely on the mails is unaffected by Section 3001(e)(2). Any person who seeks information about contraceptive devices may obtain it without restriction even through the mails, because Section 3001(e)(2) applies only to unsolicited materials. Appellee remains free to promote contraceptives in newspapers and other publications that are sent through the mails as long as the publication has been requested by the recipient. This Court has frequently emphasized the hardiness of commercial speech (e.g., Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 564 n.6; Bates v. State Bar of Arizona, 433 U.S. 350, 381 (1977)); impelled by the profit motive, appellee and other manufacturers and distributors of contraceptives are likely to be resourceful in devising means of reaching potential customers. For example, the Postal Service does not interpret Section 3001(e)(2) to prohibit a "pre-mailing" that, while not advertising contraceptive products, notifies recipients that such advertisements are available upon request. Commercial speech is protected by the First Amendment principally because of its value to the hearer, not because of its value to the party attempting to sell its wares. See, e.g., Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 563. See also First National Bank of Boston v. Bellotti, 435 U.S. 765, 776-786 (1978). Applying Section 3001(e)(2) in the circumstances of this case will, therefore, have an impact on the protected rights only of those who are so uninterested in appellee's products that they have not sought information about them -- and then only on such a person's ability to receive that information through the mails in the form of unsolicited promotional materials. To whatever degree consumers generally depend on unsolicited advertisements to guide their decisions about what to buy (see Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 763-765 (1976)), it is implausible to suggest that this source of information is of great significance to people making "private and sensitive" decisions (Carey v. Population Services International, supra, 431 U.S. at 685) about contraception. /7/ 2. The district court acknowledged that Section 3001(e)(2) directly promotes the government's substantial interests in preventing families from receiving unwanted advertisements that may be offensive and that may, against the parents' wishes, fall into the hands of children. "That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech * * * does not mean we must be captives everywhere. * * * The asserted right of a mailer * * * stops at the outer boundary of every person's domain." Rowan v. Post Office Department, 397 U.S. 728, 738 (1970). See also Carey v. Brown, 447 U.S. 455, 471 (1980). Compare Breard v. City of Alexandria, 341 U.S. 622 (1951), with Martin v. City of Struthers, 319 U.S. 141 (1943). The interest in not subjecting addressees to offensive material is particularly strong when the government itself is being made the cause of the intrusion through a "government-created forum()" (Metromedia, Inc. v. City of San Diego, supra, slip op. 22 n.19 (plurality opinion)) -- the Postal Service -- that is normally subject to its plenary control (see, e.g., United States Postal Service v. Council of Greenburgh Civic Associations, No. 80-608 (June 25, 1981), slip op. 11-12). The district court undervalued this interest by explicitly assuming that, if its approach were followed, addressees would receive only "tasteful" unsolicited advertisements. In fact, even if it were possible to draw a distinction between tasteful and tasteless advertisements that is not unconstitutionally vague and a "broad invitation to subjective or discriminatory enforcement" (Grayned v. City of Rockford, 408 U.S. 104, 113 (1972); see, e.g., Coates v. Cincinnati, 402 U.S. 611 (1971)), any such distinction is likely, in practice, to permit a good deal of offensive material to reach unwilling recipients. Perhaps more important, unsolicited advertisements for contraceptives can work a "direct interference with the parental guidance that is especially appropriate in this sensitive are of child development" (Carey v. Population Services International, supra, 431 U.S. at 708 (Powell, J., concurring)). In view of the quantity of unsolicited commercial mail -- the district court itself recognized that it can reach "avalanche" proportions (App. A, infra, 12a; see Rowan v. Post Office Department, supra, 397 U.S. at 736) -- there is a significant probability that, if advertisements for contraceptives are left unregulated, some will fall into the hands of children. Whatever protection the First Amendment affords to advocates of birth control as a political or social cause who make such materials available to children on an unsolicited basis, or to those who give commercial information to children who seek it (see Carey v. Population Services International, supra, 431 U.S. at 691-699 (plurality opinion)) unsolicited commercial advertisements are surely entitled to the least protection. Moreover, the form, content, and volume of such advertisements are dictated solely by the sender's commercial interest in selling his product. Compare Ohralik v. Ohio State Bar Association, supra, with In re Primus, supra. The government has a substantial interest in aiding parents' efforts to discuss sensitive and important subjects such as birth control with their children; here Congress has taken steps to ensure that such discussions, while not isolated from the wide range of information and communication left untouched by Section 3001(e)(2), will at least be free from the intrusion of inappropriate "junk mail" and unwanted, commercially motivated, solicitations. 3. The district court invalidated Section 3001(e)(2) because it believed it had "devised" a less restrictive alternative. This alternative essentially consisted of allowing advertisements for contraceptives to be mailed to homes that did not request them, if the advertisements were (i) on the inside pages of -- and not graphically dominant in -- a flyer that advertised other products, or (ii) enclosed in an envelope that notified the recipient of the contents, stated that they were unsolicited, and gave the recipient an opportunity to have his name removed from the sender's mailing list (App. A, infra, 13a-15a). See page 7, note 4, supra. The district court believed that its approach struck a better balance than the one adopted by Congress. But "(t)he logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all (regulatory) powers" (United States v. Martinez-Fuerte, 428 U.S. 543, 557 n.12 (1976)) that affect First Amendment rights. The district court conceded that its alternative would be less effective in achieving the legitimate objectives of Section 3001(e)(2); it recognized that the risk of advertisements' falling into children's hands might even be increased by the requirement of an explicit notice on the outside of the envelope (see App. A, infra, 18a). By enacting a simple prohibition on the mailings that created this problem, Congress "has gone no farther than necessary in seeking to meet its ends" (Metromedia, Inc. v. City of San Diego, supra, slip op. 16 (pluraltiy opinion)). Moreover, a recipient who objected to contraceptive advertisements would, under the district court's approach, be forced to remove himself from the mailer's mailing list entirely, /8/ with the result that he would be deprived of information about the mailer's other products -- precisely the sort of deprivation that the constitutional protection for commercial speech is designed to prevent. The sole gain from the district court's approach would be that appellee, instead of having to use pre-mailings to obtain requests from those who desire its materials, will be able to use the mails to send advertisements to addressees who are not sufficiently interested to request them. For these reasons, the "less restrictive alternative" devised by the district court is not an adequate basis for declaring Section 3001(e)(2) unconstitutional. CONCLUSION Probable jurisdiciton should be noted. Respectfully submitted. REX E. LEE Solicitor General J. PAUL MCGRATH Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General DAVID A. STRAUSS Assistant to the Solicitor General LEONARD SCHAITMAN JOHN C. HOYLE Attorneys FEBRUARY 1982 /1/ The DMM, which is issued pursuant to the Postal Service's broad power to adopt regulations (39 U.S.C. 401) is incorporated by reference into 39 C.F.R. Part 111. Postal Service regulations provide that an administrative proceeding to determine whether certain materials are mailable may be instituted before an administrative law judge or the Postal Service's Judicial Officer. See 39 C.F.R. Part 953. In addition, 18 U.S.C. 1461 makes it a crime "knowingly (to) use() the mails for the mailing, carriage in the mails, or delivery of anything declared by * * * section 3001(e) of title 39 to be nonmailable * * *." /2/ Examples of these materials are reproduced in Appendix C to the complaint. /3/ In Central Hudson, the Court identified a "four-part analysis" that has been applied to restrictions on commercial speech (447 U.S. at 566; see App. A, infra, 9a-10a): At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. /4/ Section 3008(a) of Title 39 provides: Whoever for himself, or by his agents or assigns, mails or causes to be mailed any pandering advertisement which offers for sale matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative shall be subject to an order of the Postal Service to refrain from further mailings of such materials to the designated addresses thereof. The constitutionality of this statute was upheld in Rowan v. Post Office Department, 397 U.S. 728 (1970). The addressee has "unreviewable discretion * * * to determine whether or not the advertisement was 'erotically arousing or sexually provocative'" (id. at 739 n.6), and his certification to that effect is final; there is no "power to make any discretionary evaluation of the material in a(ny) governmental official" (id. at 737). The district court appears not to have recognized, however, that the plain language of the statute, and the implementing regulations (DMM Section 123.611), require the addressee to certify that the material is erotically arousing or sexually provocative, and some addressees may be unwilling to make such a representation about advertisements of the sort in issue here. /5/ In Associated Students v. Attorney General, 368 F. Supp. 11 (C.D. Cal. 1973), a three-judge court held that this prohibition on the mailing of "advertisements" could not constitutionally be "expand(ed) * * * beyond the() commercial sense" of the term (id. at 24) and had to be interpreted in a way that "recognize(d) the inherent difference between commercial solicitation on one hand and informative editorializing on the other" (id. at 23). The Postal Service accepts this holding, and it issued DMM Section 123.434 (see page 3, supra) to make this interpretation clear. /6/ The district court found that all the materials involved in this case are commercial speech. The drugstore flyers containing advertisements for contraceptives fall within the core definition of commercial speech -- "'speech proposing a commercial transaction'" (Centeral Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 562, quoting Ohralik v. Ohio State Bar Association, supra, 436 U.S. at 456; see Pittsburgh Press Co. v. Human Relations Commission, 413 U.S. 376, 385 (1973); Valentine v. Chrestensen, 316 U.S. 52 (1942)). The other promotional materials were also "commercial activitity" (Ohralik v. Ohio State Bar Association, supra, 436 U.S. at 456), and the fact that the took the form of "advertising that link(ed) a product to a * * * debate" over the various methods of contraception does not entitle them to the "broad constitutional protection" afforded noncommercial speech (Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 563 n.5). See also Metromedia, Inc. v. City of San Diego, supra, slip op. 19 (Brennan, J., concurring in the judgment) ("I have no doubt that those who seek to convey commercial messages will engage in the most imaginative of exercises to place themselves within the safe haven of noncommercial speech, while at the same time conveying their commercial message."). /7/ Thus, unlike other restrictions on commercial speech that this Court has invalidated, Section 3001(e)(2) is not a "covert attempt by the State to manipulate the choices of its citizens * * * by depriving the public of the information needed to make a free choice" (Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 574-575 (Blackmun, J., concurring); see, e.g., Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 94 (1977); Virginia State Board of Pharmacy v. Virginia Citizens' Consumer Council, 425 U.S. 748, 770 (1976)). The narrow restriction imposed by Section 3001(e)(2) is, in fact, very poorly designed to influence behavior by reducing the free flow of information; it permits a wide variety of commercial and noncommercial information about contraception to reach consumers, and the relatively small amount of information it restricts is among that least likely to play a role in the important decisions consumers make on this subject. /8/ Even if the addressee could specify that he wished not to receive contraceptive advertisements but to receive other mailings, a mailer might well find it uneconomical to maintain two mailing lists or to print two sets of flyers -- one with and one without advertisements for contraceptives -- so the practical effect of the notification would likely be to cut off all mailings to the objecting addressee. Appendix Omitted