Virginia State Pharmacy Board V. Virginia Citizens Consumer Council - Majority Opinion

Majority Opinion

Justice Blackmun, writing for the majority, began his opinion by giving a brief overview of the Virginia pharmacy regulation statutes, and then distinguished previous challenges to such regulations, explaining that such previous cases had been based on economic due process under the Fourteenth Amendment rather than on free speech grounds. Blackmun reasoned that this case concerned not only commercial regulation, but the free flow of information. This case was just as much about the consumers’ right to receive information as it was about the pharmacists’ right to provide it, and that the right to free speech is just as much about the “listener” as it is about the “speaker”.

He further described how the court’s past precedent had whittled down the “commercial speech” exemption through past precedent; for example, Bigelow v. Virginia, 421 U.S. 809 (1975), in which the Court struck down a Virginia statute prohibiting the advertisement of out-of-state abortion procedures. He also distinguished commercial speech from such “unprotected” categories of speech such as “fighting words” and obscenity. Nor does having a purely economic interest in the content of speech deprive the speaker or listener of the protection of the First Amendment. This is especially true for the consumers in this case, as the poor, elderly, and infirm needed access to such information to make informed decisions about how to get their prescriptions filled inexpensively. For such people in need, Blackmun reasoned, such information was more than simply a convenience. Furthermore, he stressed the importance of price advertising in a free market economy, because they serve to provide the underlying information for citizens to make private economic decisions.

The Commonwealth of Virginia justified its enactment of the regulation on the grounds of maintaining the professionalism of pharmacists, asserting that aggressive price competition among pharmacists would make it difficult for pharmacists to provide the proper professional services. Blackmun responded that while regulation of the pharmacy profession was both necessary and within the prerogative of the several States through their police power, the statute promoted consumers’ ignorance, effectively keeping them in the dark about prescription drug prices. Blackmun dismissed this rationale as paternalistic, saying that if consumers had sufficient access to information regarding drug pricing and availability, it would only serve to aid them in their decisions about choosing a prescription drug supplier.

Blackmun concluded his opinion by explaining that states still retained the power to regulate some commercial speech, via content-neutral time, place, and manner regulations. Likewise, states retain the power to prohibit false or deceptive advertisements. However, he held that the states could not suppress truthful information about a lawful economic activity, simply out of fear of potential consequences.