There are commonsense differences between speech that does no more than propose a commercial transaction and other varieties. Courts suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired. The truth of commercial speech, for example, may be more easily verifiable by its disseminator than news reporting or political commentary Also, commercial speech may be more durable than other kinds. Since advertising is the sine qua non of commercial profits, there is little likelihood of its being chilled by proper regulation and forgone entirely.
Plaintiffs, Virginia Citizens Consumer Council, many of whose members were users of prescription drugs, brought an action in the United States District Court for the Eastern District of Virginia to challenge, on First and Fourteenth Amendment grounds, Va. Code Ann. § 54-524.35 (1974). The aforementioned statute made it unprofessional conduct for a pharmacist licensed in Virginia to advertise any price for any drugs which may be dispensed only by prescription. Finding that the statute violated consumers' rights under the First Amendment and that the statute had not been adequately justified, the three-judge District Court declared the challenged portion of the statute void and enjoined the defendants, the Virginia State Board of Pharmacy and its individual members, from enforcing it. Thereafter, defendants appealed the District Court’s judgment.
Was the statute which made it unprofessional conduct for a licensed pharmacist in Virginia to advertise the prices of prescription drugs, unconstitutional?
The Court held that any First Amendment protection attaching to the flow of drug price information was a protection enjoyed not solely by the advertisers themselves who sought to disseminate that information, but also was a protection enjoyed by the plaintiffs as the recipients of such information, which protection the plaintiffs could assert in the action. According to the Court, since "commercial speech" was protected under the First Amendment, the advertisement of prescription drug prices was protected under the First Amendment notwithstanding its commercial speech character. Furthermore, the Court determined that the justification for the statute's advertising ban as maintaining a high degree of professionalism on the part of licensed pharmacists was insufficient.