VIRGINIA PHARMACY BD. v. VIRGINIA CONSUMER COUNCIL
Acting on behalf of prescription drug consumers, the Virginia Citizens Consumer Council challenged a Virginia statute that declared it unprofessional conduct for licensed pharmacists to advertise their prescription drug prices. On appeal from an adverse ruling by a three-judge District Court panel, the Supreme Court granted the Virginia State Board of Pharmacy review.
Is a statutory ban on advertising prescription drug prices by licensed pharmacists a violation of "commercial speech" under the First Amendment?
Legal provision: Amendment 1: Speech, Press, and Assembly
Yes. In a 7-to-1 opinion, the Court held that the First Amendment protects willing speakers and willing listeners equally. The Court noted that in cases of commercial speech, such as price advertising, freedom of speech protections apply just as they would to noncommercial speech. Even speech that is sold for profit, or involves financial solicitations, is protected. The Court concluded that although the Virginia State Board of Pharmacy has a legitimate interest in preserving professionalism among its members, it may not do so at the expense of public knowledge about lawful competitive pricing terms.
Argument of Anthony F. Troy
Chief Justice Warren E. Burger: We will hear argument next is 74-895, Virginia’s Board of Pharmacy against Consumer’s Council.
Mr. Anthony F. Troy: Mr. Chief Justice and may it please the court.
There has been traditional that the practice of professions are to be above the morals of the marketplace.
This case presents the question whether the practice of pharmacy in the dispensing of drugs should be subject to the morals of the marketplace.
Should prescription drugs be advertised?
The concerns of this case, however, are not only in the profession of pharmacy or rather in each and every profession, law, medicine, optometry, dentistry and any other profession controlled by the state.
The true question then is the ability of a legislature to regulate these professions within the economic and social policies deemed provident.
In Virginia, the practice of pharmacy is a profession.
It has been deemed a profession by the general assembly.
It has been found a profession by the courts.
It is a profession from the time that the pharmacist procures the drug, through the time that he prepares it, compounds it, dispenses it, and delivers it to the patient.
Our brief in footnote 3, pages six and seven, sets forth some of the statutes which comprise the scheme by which the profession of pharmacy is regulated in the Commonwealth.
Justice William J. Brennan: How do you define a profession?
Mr. Anthony F. Troy: Your Honor, the general assembly has defined this profession.
It has defined it within the scheme work of what is traditionally been defined as this profession.
A learned profession requirement of a degree or requirement of some protection to the health, safety and welfare of the people.
And in this case, it has been shown and not only by statute but in the record itself that the pharmacist is the last professional who interposes himself between a patient and a drug.
He has a vital role in the medical health team.
In 1968, the Virginia general assembly enacted a measure prohibiting the advertisement of the price of prescription drugs.
The history of that statute is set forth in the appendix at page 20.
And I would point out here in response to the appellee’s statement that the legislature enacted this without any basis whatsoever.
The short answer is that since that 1968 enactment, the statute has been enacted or amended twice with full knowledge of the 1969 federal court decision sustaining the validity of the statute.
And the legislature declared by this statute than any pharmacist who advertised, would be guilty of unprofessional conduct.
The statute regulates only the conduct of the pharmacist.
As the appendix demonstrates and as Judge Butzner of the Fourth Circuit found speaking for the three-judge court in Patterson Drug Company v. Kingery, a pharmacist “must have an extensive knowledge of a wide range of drugs.
Accuracy is essential.
Mistakes can be serious”.
Just four pages of the appendix, pages 44 through 47 demonstrate by the testimony of Mr. Carl M. Zwiller, a pharmacist in nearby Loudoun County that a pharmacist plays a vital role in the health field and the dispensing of drugs.
A pharmacist in dispensing drugs is doing more and what I as layman would comprehend that is taking bottle -- pills from a big bottle counting to 25 to 30 and pouring pills into small bottle.
The entire educational training of a pharmacist is geared to impart to him a knowledge greater than a physician as relates to drugs, their chemical composition and the reactions, contraindications or synergistic effects of such chemical elements.
Justice William J. Brennan: If this is the case, why doesn’t he write a prescription?
Mr. Anthony F. Troy: I’m sorry Your Honor?
Justice William J. Brennan: If that’s the case, why doesn’t he write prescriptions?
Mr. Anthony F. Troy: The reason that he does not write prescriptions of course that is his education is to the extent of knowing the chemical elements of drugs and their contraindications.
The doctor of course is the one that knows what the therapeutic affect of these drugs is for the particular disease of the doctors prescribing.
Justice William J. Brennan: And their contraindication.
Mr. Anthony F. Troy: And their contraindication is some cases, but as the record in this case—
Justice William J. Brennan: In some cases?
Mr. Anthony F. Troy: Is in some cases, yes Your Honor because as the record shows in this case, pharmacist do keep medical profile records containing a patient’s allergies, sensitivities, or reactions to drugs.
For example, Mr. M Zwiller detailed again on the appendix pages 44 through 47.
Two instances of the utilization in value of the medical profile cards among typical examples, he detailed two instances where medical profile record assist in the dispensing of drugs.
One, an example of a patient taking a blood pressure tablet which would have due to a chemical element in such table, potentially aid an anesthesia that was about to be administered prepared toward the surgery.
Another specific example was a patient taking a tranquilizer.
He was then prescribed the different type of tranquilizer.
The second one had what was known as an MAO inhibitor.
In short a drug which would interfere and the matter in which the body was utilizing to form a drug.
Due to the nature of these drugs, it was necessary that a two-week period elapsed prior to the administration of the second drug or a prolonging and intensifying of the former drug would occurred in the body was serious overdose and drug side effects.
The record before this Court does demonstrates that the profession of pharmacy is completely entwined into dispensing a prescription drugs.
Justice Thurgood Marshall: Well, what happens when somebody gives the prescription to their butler and tells him to go and get it filled?
Mr. Anthony F. Troy: Under the medical profile records that a pharmacist would have Your Honor, the prescription of course would be written in the name of the individual.
The record would be in the name of the individual, the pharmacist by looking at the record, comparing the prescription about to filled could tell if there would be any side effects.
Justice Thurgood Marshall: Can he fill one with somebody he doesn’t have a record of?
Mr. Anthony F. Troy: Can he?
Justice Thurgood Marshall: Yeah.
Mr. Anthony F. Troy: Yes he can, Your Honor.
Justice Thurgood Marshall: Of course.
So this is universal, I mean—
Mr. Anthony F. Troy: No by no means.
Justice Thurgood Marshall: Some time people just send it in and send the money, and if you put down the money, you get the prescription.
Mr. Anthony F. Troy: Exactly Your Honor and as Judge Butzner found speaking for the three-judge court that although monitoring is not completely effective because of the mobility of customers or because of the availability of non-prescription, OTC items that could be antagonistic.
It is not a perfect cure, but it is a benefit to the public.
Justice Harry A. Blackmun: Mr. Troy, you’ve mentioned the importance of drug as compounding drugs, as I understand the stipulation 95% of the drugs dispensed do not require compounding?
Mr. Anthony F. Troy: That’s exactly correct Your Honor.
It could be even a little more.
But the point is as pointed out in the appendix that today as compared to prior years when druggist used to compound drugs, today, we’re talking about drugs that have a benefit of curing rather than just a palliative affect in the old days of compounding and these drugs, while they have the benefit of curing, have also the benefit and ability to do great harm.
As in the example of Mr. M. Zwiller where there was a drug that he dispensed that did not have to be compounded.
Nonetheless, he knew that if he gave that second drug that that patient since he had been a two-week elapse period of time would have been harmed by that drug.
Not withstanding that it was a drug that was not compounded.
Justice Lewis F. Powell: Mr. Troy, may I ask you a question?
I don’t quite understand how this argument addresses the question that you have presented whether or not the First Amendment.
The prohibition of price advertising is a violation at first hand, is that issue we have?
Mr. Anthony F. Troy: Exactly Your Honor.
Justice Lewis F. Powell: Does everything you’ve been saying everything there?
Mr. Anthony F. Troy: Yes it does Your Honor for this reason.
Justice Lewis F. Powell: I can understand if you were arguing a compelling interest argument assuming that there was First Amendment protection, but I thought the question you gave me was whether or not commercial advertising had First Amendment protection?
Mr. Anthony F. Troy: Correct and this is the connection.
The statute here is a major addressed to the public health.
It is as Mr. Justice Stewart found in Head and has described similar statutes “within the most traditional concept that what is companiously known as the police power.”
Justice Byron R. White: Wasn’t Head a due process case and not a First Amendment case?
Mr. Anthony F. Troy: Exactly, yes it was Your Honor.
The lower court paid lip service only to the principles announced in these cases in Semler, Head, Williamson, and it found that this was not a Fourteenth Amendment case but rather was a First Amendment case because it violated consumer’s right to know.
Justice Byron R. White: And you disagree with this.
Mr. Anthony F. Troy: Yes Your Honor for this reason.
Justice Byron R. White: You say then this is a due process case?
Mr. Anthony F. Troy: No Your Honor.
This is in the context in which it has been framed for us by the lower court, a First Amendment case.
But, the lower court simply ignored Fourteenth Amendment cases and under the guise of the First Amendment then examined the wisdom of the Virginia Statute and absent a convincing explanation for its wisdom, it struck it down.
Now, somehow it reasoned that approaching this from a consumer's view point would not be an intrusion upon the state’s regulation of pharmacy.
I suggest that court’s decision is analytically unsound.
It has set war, the First and the Fourteenth Amendments.
How can there be a constitutional right to receive information which the state has a legitimate and constitutional right under the Fourteenth Amendment in prohibiting the dissemination of that very same information.
There can only be two answers.
One, that the right to know is a concomitant right.
It is not an independent right which would allow access to any information, commercial or otherwise which perhaps has an economic impact upon the consuming public.
The second answer is that an independent constitutional right would exist and consequently if so, Semler, Head, Williamson and like cases must be over ruled.
The two are diametrically apposed and cannot stand together.
Now this Court has not granted a right to know where there has not been a concomitant First Amendment right to speak.
Justice Byron R. White: What is the state’s interest in forbidding the advertising to forbid to do away with competition or what?
Mr. Anthony F. Troy: No Your Honor, it’s a health matter.
Justice Byron R. White: Well I know, how does it protect health?
Mr. Anthony F. Troy: As I’ve indicated -- let me answer this directly.
It’s exactly as in the Head situation where the statute was upheld because consumers could put the needs of their pocket books above their remedial needs.
Justice Byron R. White: Well if you advertise and if you advertise prices so called price studying, you think it might lead everyone to cut prices which lowers profits which would put the druggist in a poor position to do his job?
Mr. Anthony F. Troy: No Your Honor.
As an attorney with some antitrust background, I would be the first to concede that advertising does generate price competition.
But the purpose of this statute is that the general assembly in its wisdom has decided that the delivery of a prescription drug is part and parcel, entwined with the health care that must be given --
Justice Byron R. White: But now, has that advertising impinge on that?
Mr. Anthony F. Troy: The advertising of course would induce consumers to think of this as a mere commodity and would be deceptive in and of itself because they would not realize what the general assembly --
Justice Byron R. White: Well, the general assembly in its wisdom doesn’t fix prices on drugs, and it doesn’t prevent a druggist from cutting a price at the request of the consumer?
Mr. Anthony F. Troy: That is correct Your Honor.
This has no effect on prices.
Justice Byron R. White: And it wouldn’t prevent—it wouldn’t prevent I suppose consumers picketing a drug store to say that druggist is charging too high a price?
Mr. Anthony F. Troy: No I don’t think it would at all.
Justice Byron R. White: And it wouldn’t even prevent one druggist from picketing another, would it?
Mr. Anthony F. Troy: The statute does not intend to regulate price.
Justice Byron R. White: So if the druggist wants to sell the drugs cheaper than his competitors who made do so without interference.
Mr. Anthony F. Troy: That is correct.
Justice William H. Rehnquist: If you’re talking about the Fourteenth Amendment type of analysis where you talk about any conceivable side effects, don’t you have to get back to Justice White’s earlier question that if you have price advertising here, you’re going to have price wars and if the pharmacist does have a responsible position, the less he can charge for the unit of the less time he is able to devote to supervising its distribution.
Mr. Anthony F. Troy: Well that is perhaps an analysis Justice Rehnquist -- sorry that came out.
What I meant to say is that though we do not relay on that analysis per se in the lower court.
What we felt was that this monitoring situation, if you have advertising, you’re going to induce patience to shop around.
To shop from pharmacy to pharmacy and by not having price advertising, you are in effect creating a system whereby perhaps a physician, pharmacist, patient relationship would exist.
Justice Byron R. White: Does the law prevent me from writing a letter to my friends in the lodge, if I belong to one that there’s an awful good price on certain drugs at a certain drug store?
Mr. Anthony F. Troy: No sir.
Justice Byron R. White: So everybody but the druggist can advertise the fact that there is a cut rate druggist down the street?
Mr. Anthony F. Troy: Exactly, and the fact is of course that the statute does not in anyway intend to state to a consumer that you cannot shop around.
We cannot protect our consumers.
The general assembly, however, on the basis of the record found that there was a rational relationship between monitoring -- between having patients go to the same pharmacist and consequently on that basis enacted the statute.
Justice Harry A. Blackmun: Does the record show that they do go the same pharmacist?
Mr. Anthony F. Troy: Well, in those cases where the monitoring has worked of course yes Your Honor.
The record would show that there are examples where people have come back time and time again and have been stopped from taking antagonistic drugs.
Now, to remove the price restrictions, I agree create retail incentive for price competition, but where is the constitutional right to the lowest price possible.
Justice Harry A. Blackmun: Does this law reach the pharmacist to put a sign on his prescription counter says “I sell drugs 10% less than you can buy anywhere else”?
Mr. Anthony F. Troy: Yes it would Your Honor.
There is under the Patterson v. Kingery decision which was in 1969 in an agreement and of course that you could issue a discount.
When that case first came before the Court, the word issue, advertise or promote a prescription drug was the language of the statute.
The court in upholding the statute struck out the word issue.
And now on that basis of course senior citizen discount plans of 10% have been, in effect in the Commonwealth.
Justice Harry A. Blackmun: Okay, can you put on something my price for some of these we’ll say Achromycin tablets on his prescription counter as $2.00, they do that?
Mr. Anthony F. Troy: No I don’t think it could under this statute.
Justice Byron R. White: But if you ask him what his price is he can certainly tell you.
Mr. Anthony F. Troy: Yes he could --
Justice Byron R. White: And then you can go outside and tell everybody else you wanted.
Mr. Anthony F. Troy: You could or you could go down to the next pharmacist.
You could shop around.
The state just because it creates a system which it feels that protects health does not necessarily mean that you as a consumer have to accept of what the state is in fact trying to protect you from.
Justice Byron R. White: Well do we -- must we take in to account of the First Amendment interest here of the druggist or not?
Mr. Anthony F. Troy: The First Amendment interest of the druggist Your Honor brings us to Bigelow --
Justice Byron R. White: Is there any First Amendment interest of the druggist to take account of in this case?
Mr. Anthony F. Troy: No.
I do not think so for this reason.
Justice Byron R. White: But what if there is?
Mr. Anthony F. Troy: Well, if there is then I suggest that you have a balancing test and the balancing would be the governmental interest in regulating versus any First Amendment rights that maybe existing and this brings us to this Court’s recent decision of Bigelow.
Justice Harry A. Blackmun: Mr. Troy, I wanted to be sure you would touch upon Bigelow because you didn’t -- your brief of course was filed before Bigelow came down.
Mr. Anthony F. Troy: Yes Your Honor.
Justice Harry A. Blackmun: And you haven’t seemed fit to file a supplemental so I’m particularly interested in your comment.
Mr. Anthony F. Troy: Because the Bigelow is simply not applicable for this reason.
In this case, what is advertised, is commercial advertising in is pure sense.
Phrases such as compare, safe, pay less or dial a discount do not as found in Bigelow convey information of interest regarding reform, the subject matter of the law in another state or advertise activity which pertains to a constitutional interest, abortion in Bigelow. Such phrases do no more and simply propose a commercial transaction.
They are entitled to little, if any constitutional weight.
However, as I’ve said those phrases would create perhaps a retail incentive for price competition.
But again where is the constitutional right to the lowest price possible?
Trying to ensure the lowest price is in the context in itself a wise economic policy.
It's not however I suggest a constitutional pre-requisite.
For example, does every victim of an anti trust price fixing conspiracy have a cause of action, for violation of First Amendment rights not withstanding the Parker Brown decision.
If a balancing or whatever First Amendment interests are involved must be made and as I have stated, it should be done in light of this Court's recognition for over 40 years for the inherent interest of the state through it's police power to regulate the various professions.
Since, in this case it is the manner by which price information is disseminated and not the actual dissemination of price information itself that is regulated.
Then the balancing, if any must be done as it was in McDonald, not under a compelling interest doctrine but under the rational relationship test.
In the Instant case, that test has been applied and the statute has been found not wanting.
It has been found by a District Court whose decision was declared to have no infirmity by the lower court, to have a statute before it which has a rationale and reasonable basis.
The Virginia statute, wise or foolish, economically sound or improvident should be sustained.
By doing so, this Court will be sustaining the constitutional framework, the legislative bodies, not courts must decide the wisdom of economic and social policies.
We cannot and should not turn back the clock for 40 years under the guise of an independent right to know which would begin anew the scrutiny of wisdom of legislative choices in the health, regulatory and other professional fields.
Chief Justice Warren E. Burger: Mr. Morrison.
Argument of Alan B. Morrison
Mr. Alan B. Morrison: Mr. Chief Justice and may it please the Court.
This is a First Amendment case.
There is only one question and that’s the constitutionality of the Virginia statute which prohibits the advertising of the price of prescription drugs.
The pharmacy board below on its brief in this Court, relied on Valentine against Christianson for the proposition that commercial advertising is entitled to no protection under the First Amendment.
Now whatever the merits of that position may have been before June 16 of last year when this Court decided Bigelow that position simply has no merit today.
Bigelow clearly and unmistakably forecloses any broad argument based on Valentine that all commercial advertising is outside the First Amendment.
Bigelow says you’ve got to look at the information being conveyed.
You’ve got to balance the interest in having that information conveyed against the interest of the state in prohibiting the dissemination.
The traditional kind of First Amendment balancing.
Bigelow said you have to find a clear relationship between the prohibitions and the goals of the state.
Now Bigelow did not specifically decide whether under the line of cases, it did rely upon the cases such as the New York Times, against Sullivan and Pittsburg press which were precursors and we say whatever Valentine once stood for.
It now only relates in the manner in which the distribution maybe controlled by the state.
Counsel for the pharmacy board today said “well Bigelow is not a commercial advertising case.”
Let me read you from the brief from the state of Virginia put in the Bigelow case last year.
Counsel for the state of Virginia was the same counsel exactly as on the brief today.
And let me read you from page seven referring to the advertisement in Bigelow.
Appellant's conduct is clearly within the hardcore of commercial activity unprotected by the First Amendment.
Page nine, the advertisement therefore can only be viewed as a proposal for the sale of services.
Page 11, quite simply, if the advertisement does no more than propose a commercial transaction.
That’s exactly what they contended here today.
That’s what they contended last year and that’s what we suggest today as what went on Bigelow.
There was essentially a commercial transaction, true it was for the sale of services for abortions as opposed to the sale of pills but essentially in terms of the First Amendment kind of analysis.
That is the First Amendment has no applicability to commercial transaction, the proposition is the same.
Now, as the Court is aware, the traditional First Amendment analysis requires that the state is unable to prevail unless it can show both a compelling state interest and that it has accomplished that interest by the least restrictive alternative possible.
That particular mode of analysis was not specifically adopted in Bigelow nor was it rejected.
The court simply said, a clear relationship has to be shown.
Now, we believe that as in Bigelow, it wasn't necessary to decide whether all First Amendment analysis carry forth with those compelling state interest and the least restrictive alternative.
You don’t have to decide that question here today because whichever way, you strike the balance, the scale tips so heavily in favor of public disclosure of this information under the First Amendment.
That under even the most relaxed rationale relationship test, the plaintiffs will prevail.
I’d like to turn for just a moment before weighting--
Justice Byron R. White: The case involved not the criminal conviction of the publisher of the newspaper?
Mr. Alan B. Morrison: It did Your Honor.
Justice Potter Stewart: And this case involves -- there's no newspaper course involved?
Mr. Alan B. Morrison: That is correct.
Justice Potter Stewart: Does this case involves on an action for declaration judgment?
Mr. Alan B. Morrison: And injunction.
Justice Potter Stewart: And an injunction?
Mr. Alan B. Morrison: Yes and that we sought the convening and retained the convening of the three-judge court and hence the direct appeal on this court because of the injunction that was granted below.
Justice Potter Stewart: Right.
Mr. Alan B. Morrison: Let me say a word about the--
Justice Potter Stewart: No free press question in this case is here?
Mr. Alan B. Morrison: Well none of the plaintiffs is a newspaper.
Although, of course the effect of this law, although none of the plaintiffs is a newspaper is to prohibit newspapers, indeed newspapers in the District of Columbia did sell in Maryland and in Virginia from the disseminating information about prescription drugs in Virginia.
So while none of the plaintiffs is a newspaper, it plainly has an effect on newspapers and so it's only an indirect effect because of course no pharmacist would place an add on the newspaper knowing that he would be subject to disciplinary proceedings for having done so.
Justice Potter Stewart: Is this law directed at all against newspapers?
Mr. Alan B. Morrison: I don’t believe so --
Justice Potter Stewart: Or only against pharmacist?
Mr. Alan B. Morrison: Well it's not a -- the way the law works is it prohibits pharmacist from doing certain things and it's not a criminal offense.
Justice Potter Stewart: Are there criminal sanctions?
Mr. Alan B. Morrison: No, I don’t believe so Your Honor.
Justice Potter Stewart: No criminal sanctions against anybody?
Mr. Alan B. Morrison: I'm pretty certain that’s correct, is that correct?
Justice Potter Stewart: What are the sanctions against pharmacist?
Mr. Alan B. Morrison: Disciplinary proceedings, the equivalent of disbarment, I don’t know what's called in the pharmacy profession but--
Justice Potter Stewart: You’re drummed out of the professional way.
Mr. Alan B. Morrison: Yes, so your white coat is removed or whatever may happen.
I’d like to talk a little bit about these Fourteenth Amendment cases and what we have here.
Justice William H. Rehnquist: If you’re right that this will not serve the Virginia statute won’t even survive a rationale basis test, I would think you could prevail on the Fourteenth Amendment as well as on the First.
Mr. Alan B. Morrison: Well it's not clear after the North Dakota Pharmacy that I can even make a substantive due process argument under the Fourteenth Amendment.
Indeed, we had such account in our compliant.
We were about to go to argument on this before the three-judge court, a week or two before this Court decided North Dakota Pharmacy.
Seeing that that was not our best point at that time, we withdrew that claim from the District Court and believed that we had a strong First Amendment claim and that we chose to base our contention on that.
I don’t think North Dakota Pharmacy can be read so broadly as to prohibit any substantive due process challenge but we didn’t consider that it was appropriate for us to go under here when we made that decision.
Talking about the Fourteenth Amendment cases that’s Williamson, Semler and Head, there's two important points to note about that.
First that those cases analyzed the question only from the Fourteenth Amendment points of view.
Footnote ten on the Bigelow case last year page 15 of the slip opinion specifically notes the fact that Head in particular did not consider the First Amendment challenge because it had not been properly been brought before this Court.
Second, the same thing is true when it was emphasized in the Pittsburg press case, again footnote ten at page 387 of 413 U.S.
So this Court has recognized on two separate occasions that those cases do not involve First Amendment but aside from the fact that they don’t involve the First Amendment, I think the most important thing to note about reading those cases is that there's not one word of mention any place in there, about the interest that the consumers have in finding out this information.
Now I’ll talk about that interest in a minute but regardless of whatever the extent of the interest is, the fact that consumers have the interest in finding out how much they are going to have to pay for drugs that may save their lives in this case, is a kind of question that was never even considered.
Justice William H. Rehnquist: Is that a constitutional interest that you’re talking about?
Mr. Alan B. Morrison: Yes it is Mr. Justice Rehnquist, it is the right to receive information under the First Amendment and the concomitant right on the part of the pharmacist to speak freely and while the pharmacist is subject to regulation under the Fourteenth Amendment, there are still specific First Amendment prohibitions that cannot be overruled.
For instance, this court in NAACP against Button absolutely cleared that lawyers are subject to regulation as a profession under the Fourteenth Amendment but when the lawyers tried to cloak all of their actions in we’re a profession, we’re subject to regulation, this Court said no, you can't ride rough shot over the First Amendment associational rights, specifically guaranteed under the general guise of regulation.
Justice William H. Rehnquist: What if your argument is applied to the legal profession putting aside the antitrust problem, is the state bar regulation prohibiting lawyers from advertising a violation of the First Amendment?
Mr. Alan B. Morrison: Well, I want to answer that question directly because it's something that’s been alluded to a number of times.
The first point, I want to make is that the mode of analysis employed in Bigelow that we are seeking to have employed here, requiring the recognition of a First Amendment right and requiring the balancing of the two kind of interest, that is the interest on the one hand in obtaining the information, the specific items of information that we’re talking about as against the interest that the state has in precluding the dissemination of that information, that kind of balancing test would most definitely have to be engaged in, in a case similar to the one that you’ve suggested.
Now, the second point I want to make and this is again very important.
We cannot predict the outcome of that case now because we don’t know first, what kind of information we are talking about.
I can see wide distinctions for instance between information about what a lawyer charges on a specific per hour basis on the one hand and a lawyer who attempted to make the same kind of guarantees that the dentist did in Semler case saying “I guarantee no pain”, whatever the legal equivalent of that maybe and “I guarantee satisfaction”.
Those are different kinds of questions and they would have to be looked at differently on one side of the scale.
Similarly, we don’t know and we don’t have a record as we have here on what specific justifications the bar would put forth.
Here we have the monitoring justification.
We can sit down, we can analyze it, and we can say does that make any sense?
Does it come close to promoting a goal that the state has an interest in and does --
Justice William J. Brennan: Now, in weighing your submission, the state's interest, do we get any help in evaluating the state's interest out of Williamson and those other cases?
Mr. Alan B. Morrison: Well, I think that those cases do stand for the proposition that the state has an interest in seeing that professionals do not engage in broadly called over reaching activities and it may very well be that in the context of analyzing what professionals, who after all are licensed by the state, given an imprimatur of going out to the public and say “you’re a professional, state says that you can do a good job” the state may well and I don’t suggest that there is definite answer but may well be able to say “hold on, you can't say the same thing to soap maker.”
Justice William J. Brennan: But you can't, you can't do that I gather from what you’re suggesting, your next step is going to be, but you can't do that as to assume that.
Well, evaluating the conduct of a professional themselves that’s one thing.
But here you’re talking about whether or not the consumer is entitled of this information.
Mr. Alan B. Morrison: No, I would say Mr. Justice Brennan that both of those interests can properly be focused.
We can focus on the entire transaction and I did not mean to suggest that the state could not focus on it.
Indeed I think there are very many important consumer interests that can be protected against by deceptive and fraudulent advertising.
And all I'm suggesting is that in the context of a particular case with regard to the regulations of a particular profession, we have to look at the particular information under the kind of analysis we’re suggesting here and look at the states rationale for prohibiting the dissemination of it judged against the interest of both parties.
The disseminator of the information and the person who’s going to receive it.
Justice William J. Brennan: And what do you perceive the reasons for preventing this?
Mr. Alan B. Morrison: In this case?
Justice William J. Brennan: Yes, in preventing dissemination.
Mr. Alan B. Morrison: Well the only ones that had been suggested is the fact that pharmacy is a profession and I think that NAACP against Button case eliminates that as a blanket excuse for all kinds of First Amendment restrictions.
The second is the monitoring argument, that’s the only other one that's been put forward here.
I would suggest arguments that have been raised in other cases and I deal with them quickly if I may.
First it's been suggested--
Justice Byron R. White: Well, but what about the monitoring, how do you tie that in, I mean why does that fit in as a reason?
Mr. Alan B. Morrison: Well I don’t think it fits in at all, but the state has said--
Justice Byron R. White: I gather they make that benefit that if unless the pharmacy makes an adequate profit, they won’t deal to engage in this kind of activity, is that your argument?
Mr. Alan B. Morrison: No, that’s not the monitoring argument.
Justice Byron R. White: Well, what is it?
Mr. Alan B. Morrison: Let me give you the monitoring argument, as I understand the state's --
Justice Byron R. White: That’s what I want to know.
Mr. Alan B. Morrison: Okay fine.
The monitoring is a practice --
Justice Potter Stewart: You’re being asked in other words to argue your opponents case now.
Mr. Alan B. Morrison: No, I'm stating their case.
I'm not going to argue it.
[Laughter] I can assure you that.
Justice Byron R. White: You’re the one who says that your interest outweigh the state.
Mr. Alan B. Morrison: Interest in monitoring.
Justice Byron R. White: Now, can you please tell me how it outweighs the state's, when you’re telling the state is --
Mr. Alan B. Morrison: That’s right and that’s what I'm going to do right now.
The state claims that monitoring which is the keeping of records of what prescription drugs are taken by each patient will encourage -- will permit a pharmacist to be able to look at a record, profile and tell whether a patient is taking a drug that maybe antagonistic to the one on which he is about to fill a prescription on.
Now they claim that what the statute does is, it does not tell consumers what prices are being charged at different drugstores around town or around the county.
And therefore consumers presumably won’t know enough to shop around and get a better buy and therefore they’ll just out of habit go back to the same drugstore that they’ve always have been going to.
That’s what I understand the argument is; now, the difficulty with that argument is about three fold.
The first is that there's not the slightest evidence anyplace and this is anything but an invention and that the legislature had the foggiest notion that they were creating a monitoring system.
The statute we have in front of us is the product of a regulation which was issued in 1967 by the state pharmacy board.
That regulation said no advertising of the price of prescription drugs.
The Attorney General of Virginia said “Uh-uh, you don’t have authority to issue that regulation”, so 1968 statute was passed.
Not a word about monitoring, they didn’t pass a monitoring statute.
They passed a no price advertising statute.
Justice William H. Rehnquist: Well, did they have a word about anything else in the statute?
Mr. Alan B. Morrison: Not a word.
Justice William H. Rehnquist: Then how do you know what was in the back of their minds, how do you know that monitoring was --
Mr. Alan B. Morrison: Well I'm suggesting there's no evidence of it and there's subsequent evidence of conduct which supports that inference, and that is first that the pharmacy board has never urged upon the state to pass a regulation, a statute.
They have never attempted to pass a regulation that would require monitoring.
The state pharmacist's own code of ethics which does not require any state authority at all--
Justice Harry A. Blackmun: Would you be out of here, if in fact what they had in mind and said so was we think it's best for people who have to use drugs, patronize a single dispenser so that we can have a record of everything that the patient buys.
That’s what you understand to be monitoring?
Mr. Alan B. Morrison: That’s right, if that was in the legislative history of this statute?
Justice Harry A. Blackmun: Yes.
Mr. Alan B. Morrison: No, we wouldn’t be out for the next reason I'm going to get to and that is that the statute goes much too far.
It's vastly over inclusive, it does much more than needed to accomplish this end.
After all, we have a doctor who is involved in this transaction, we are dealing only with drugs which a doctor has told the patient “you better this take this drug because this may save your life, or may cure an illness that you have.”
So we are not dealing with something that’s optional even, we are dealing with prescription drugs and the doctor has a professional obligation to be sure that antagonistic drugs aren’t taken.
Now of course, no doctor is perfect as no lawyer and no pharmacist is perfect and there maybe times when they will miss.
The book will not be accurate or they will not take the time to check.
That simply means that we've got malpractice.
On the other hand, it does suggest to me that the pharmacist can provide a useful function but only as a back up function.
The primary responsibility is on the doctor and that’s where it ought to continue to be placed and if the state elected a number of less restrictive ways of accomplishing this monitoring, short of a price control regulation which is what they almost have here.
Then, we would have a different case but we don’t.
They’ve done with this no advertising statute that which they ought to have done if it’s worth doing at all with the monitoring statute.
The second reason is that the monitoring -- that the statute is vastly ineffective for achieving even the limited ends that it’s supposed to achieve.
And it’s ineffective for a number of reasons.
First, only a small minority of pharmacists actually monitor these days.
The second, consumers shop around.
In any event, they don’t always go to the same store for a variety of reasons.
One maybe closer to one doctor, maybe closer to their home, their office, there maybe non prescription drug sales at one place and they decided, well, as long as I’m in here I might as well fill my prescription.
Indeed the way the advertising rules work, the pharmacist can advertise non-prescription drugs, non-drug items, they can even advertise that they’ll give you free cup of coffee while you wait and they can advertise free delivery.
But the one thing that the consumer really wants to know is what's it going to cost, where in this range of 100% to 600% variation, are you Mr. Pharmacist going to fall?
That information you can’t get under this statute.
Justice William J. Brennan: Do you agree, Mr. Troy that this prohibition goes so far as to prevent the pharmacist from putting a sign even on his prescription counter that I sell such and such for a $1.20?
Mr. Alan B. Morrison: I certainly think it could be interpreted that way.
And I would say that with respect to Mr. Justice White’s question earlier about whether consumer could go in and circulate, obtain the factual information from the pharmacist by asking them and go out and put a consumer’s bullet in their guide up, I would say that there are situations in which not the pharmacist but other laws similar to this.
Those laws had been construed to say a doctor who cooperates or a lawyer who cooperates in that situation simply giving out factual information is engaged in unethical conduct the way a pharmacist would be here.
Justice Byron R. White: There’s nothing to suggest that the labor union for example couldn’t go to a pharmacist or to a chain drug store and negotiate for lower prescription rates for its members.
Mr. Alan B. Morrison: Absolutely nothing, in the statute it says--
Justice Byron R. White: And nothing to forbid the labor union from circulating that among its members.
Mr. Alan B. Morrison: Circulating that fact among its members, well, I don’t know whether the pharmacist -- the pharmacist who cooperate in that venture, if he knew that the information was going to be circulated might be guilty under this rather broad statute.
It hasn’t been pressed that far although as I suggested other similar statutes have been pressed at --
Justice Potter Stewart: Well, this law is directed only against pharmacists.
It’s not directed against the labor unions or members of the Elks or anybody else?
Mr. Alan B. Morrison: That’s right, because that only goes to the mechanism for enforcing it.
Justice Potter Stewart: Right.
Mr. Alan B. Morrison: And I would suggest that -- similar to the other statutes that I mentioned earlier also involved only doctors in one case I’m thinking of particularly.
Only a doctor could be disciplined but that if the doctor knowingly cooperates being aware that the result is going to be this kind of information dissemination, he would be guilty of --
Justice Potter Stewart: I suggested a moment ago Mr. Morrison, I think that this was almost price control law, was there anything implicit in that suggestion that a state would violate the constitution by enacting a law regulating prices?
Mr. Alan B. Morrison: No, I misspoke and I wanted to correct that and I was in the middle of--
Justice Potter Stewart: Well I’m glad, I gave you an opportunity.
Mr. Alan B. Morrison: Thank you very much sir.
What I wanted to say is, indeed, it’s just the opposite because as was earlier pointed out the state doesn’t even have a policy prohibiting price competition.
If indeed, it had a policy prohibiting price competition.
If for instance, all pharmacists had to charge prices in accordance with what the State Pharmacy Board determined after appropriate hearing was a reasonable price.
In a way, utility has to charge for instance, the Telephone Company or electric company.
And in that situation, somebody was advertising a price below the price.
We have a case like Pittsburg Press, aiding and abetting in illegal activity.
But here we are not aiding and abetting anything that’s illegal.
It’s perfectly legal for a pharmacist to charge any price the pharmacist chooses.
Indeed, it’s perfectly legal and the state has no policy against consumers shopping around.
All it has a policy against as far as we can determine, is consumers shopping around in a meaningful way by newspaper advertisement and other forms of media advertising so they can find out what the prices are reasonably instead of having to walk around --
Justice Potter Stewart: Now, there’s a policy for rightly or wrongly or rationally or irrationally against advertising, price advertising by pharmacists?
Mr. Alan B. Morrison: That’s the policy, yes.
That's what the statute says and they claim, it’s to enforce the policy having to do with monitoring.
Justice Potter Stewart: It’s that policy?
Mr. Alan B. Morrison: It is.
Justice Harry A. Blackmun: Mr. Morrison, let me ask you this and I hope it isn’t irrelevant.
I think it’s a fact that drugs by trade names generally are more expensive than drugs by their basic – chemical, generic name.
Suppose, Virginia had a statute requiring physicians to prescribe in the generic name, would this be unconstitutional?
Mr. Alan B. Morrison: Well, I would first say that my first offhand reaction is that that would not be a First Amendment issue.
My second reaction is that, it would not be unconstitutional excuse me, because I would think that the state would have a legitimate interest if it made a factual determination that builds a pharmacologically identical to be able to say to the doctor, you must prescribe that unless there is some medical reason for doing so.
But I don’t think whatever the outcome of that case maybe, would control the facts of this case.
Justice William H. Rehnquist: Would you think that in the answer to furtherance of Justice Blackmun’s question, that the physician had a First Amendment right not to prescribe in the generic name and you then balance the state's interest to see whether he would prevail or the state?
Mr. Alan B. Morrison: Well, I don’t see the speech element of First Amendment coming in.
Justice William H. Rehnquist: Call it freedom of expression, he is writing on a prescription pad rather than speaking.
Mr. Alan B. Morrison: Well, I would say that would very much come on to the O’Brien, United States against O’Brien where it’s a mixed act of speech and conduct and is much more having to do with the conduct and the content.
I think almost anything that any of us does could be a speech--
Justice Byron R. White: What if the doctor is to prescribe a certain proprietary drug, if he thinks his better or he just wants his customers to use that drug?
Mr. Alan B. Morrison: Well--
Justice Byron R. White: And why isn’t that this is a First Amendment issue?
Mr. Alan B. Morrison: But it might be -- as I say I haven’t focused on it and it would seem to me that it’s not traditional kind of expression issue.
It maybe – he may have a Fifth or Fourteenth Amendment right to engage in his occupation, in accordance with what he determines to be the best dictates of his profession and training.
And I would certainly want to think about it and want to see what the justifications were.
My own belief is such statute would be constitutional because of the state's interest in ensuring that people who are in need of medical assistance are permitted to -- are able to buy at the least possible price where there is no medical difference.
Now, if there were medical differences of course we’d be in a different kind of an inquiry.
Justice Thurgood Marshall: Mr. Morrison, has there ever been any advertising in Virginia of prescription drugs?
Mr. Alan B. Morrison: Oh yes, since we won this case, almost a year a half ago there has been advertising going on.
Justice Thurgood Marshall: And that’s what --
Mr. Alan B. Morrison: There’s been no stay Your Honor.
Justice Thurgood Marshall: The point I’m driving at is how come the pharmacists are not involved?
Mr. Alan B. Morrison: I’m sorry, Your Honor.
Why aren’t they plaintiffs?
Justice Thurgood Marshall: Yeah.
Mr. Alan B. Morrison: Well, the pharmacists had a try at this, in 1969 in Patterson against Kingery, they didn't win that case.
Justice Thurgood Marshall: I see.
Mr. Alan B. Morrison: These are consumers, we thought, that we could do a little better [Laughter].
Justice Potter Stewart: You stated as I understood you that it would depend on the facts, I’ll try to put a fairly straightforward factual situation.
As you know most lawyers have an hourly rate at least for internal record purposes.
And the first step in most legal charge computations is to look at one record to see how many hours have been devoted to their representation.
Let’s assume that desire on the part of lawyers or assume that the issue where whether or not lawyers would be allowed to advertise that their hourly rate for non-litigation advice was $25.00 an hour, whatever it might be, what would your reaction to that be?
Mr. Alan B. Morrison: Well, my first reaction would be that that's certainly an item of information that consumers would want to know.
And that the lawyer would want to be able to disseminate that either because he wants to be sure that the people he is attracting can pay the fees or because he thinks that he would get people to come in at that rate because he thinks it’s a good competitive rate.
Now, on the assumption that we are talking about a dignified notice or simply a statement in some place in a legal registry of some kind that says $25.00 an hour is what this lawyer charges.
I would see no interest of state of the kind that I would think would be sufficient to overturn it.
But as I said before, I think that before we prejudge a case like that the state ought to be able to have an opportunity to present whatever justification, the equivalent of monitoring or whatever else the state has to put forth and we can make a determination at that time.
My own judgment would be since I think that’s what you’ve asked that there is no sufficient interest of the state involved.
But again, I would say that I would want finally to wait until we saw exactly what the facts were before we --
Justice Potter Stewart: Well, even if there were according to your submission, as I understand it, the First Amendment of the constitution would override it, and if there is a right to know, if there is as you submit, a constitutional right to know on the part of potential clients or potential customers or pharmacist.
Mr. Alan B. Morrison: Well, in every case of course, there would be a strong presumption that the right to know would be --
Justice Potter Stewart: Right, if there is a right to know.
Mr. Alan B. Morrison: Yes, but it’s always engaged in the permissible balancing test that there are certain kinds of cases --
Justice Potter Stewart: Well some people think some and other’s don’t.
Others think if there’s a clear constitutional right, that’s the end of it and in any state, the statute that impedes or interferes that right as invalid.
Mr. Alan B. Morrison: I think that is correct Mr. Justice Stewart.
Justice William J. Brennan: That’s not your submission is it not?
Mr. Alan B. Morrison: No and--
Justice William J. Brennan: Your suggestion is that in this instance, the state interest does not override the right to know.
Justice Potter Stewart: Well, that’s one way of looking at it, but it’s not the way that some constitutional lawyers do.
Mr. Alan B. Morrison: I think that’s right.
I don’t believe that the absolutist view of First Amendment commands a majority of the justices of this Court at this time and I have said that of course under an absolutist view, we would be entitled to win.
But even without that, even under the traditional view that if the state could show--
Justice Potter Stewart: Well, if --
Mr. Alan B. Morrison: The compelling state interest and it was a least restrictive way they could prevent this dissemination, then that case might be cited against the dissemination of the information but we have to look at the facts.
The analysis would be the same.
Justice Potter Stewart: Well, first of all, on an absolutist view or any other view, you have to look at the constitution, don’t you?
Mr. Alan B. Morrison: That’s correct.
Justice Potter Stewart: And where do you find that the constitution any right to know?
Mr. Alan B. Morrison: Well, it’s the --
Justice Potter Stewart: Strictly, if you’re an absolutist.
Mr. Alan B. Morrison: It’s the correlative -- I would say of the right to speak.
Freedom of speech that I think Justice Brennan said that the market place would be a barren place indeed, if we had only sellers and no buyers.
And we’ve recognized the right to receive information specifically in a number of context Lamonte--
Justice William J. Brennan: (Inaudible) wasn’t I alone?
Mr. Alan B. Morrison: You were concurring it.
Justice William J. Brennan: That’s Lamont, isn’t it?
Mr. Alan B. Morrison: Yes.
Justice Potter Stewart: Well, one may fully accept that and still say that the constitution protected the right to know by guaranteeing the right to speak or the right to a fair press.
That’s not a free press.
And that those are the constitutional guarantees and anything else is derivative and it’s not protected directly by the constitution.
Mr. Alan B. Morrison: Well, we would certainly say that to the extent that there is a direct right to speak that would plainly support the right to receive the information.
But there have been a couple of cases in which the question about the right to speak has not been at issue.
Kleindienst against Mandel for instance, no one claimed that Professor Mandel had a constitutional right under our constitution, as someone from Belgium to speak nor did anyone say that the Hanoi Government and Lamont had a right to speak.
Yet we upheld the constitutional rights in those cases.
Justice William H. Rehnquist: Well you’re not suggesting are you, that the consumers have the right to know even though the pharmacists don’t have the right to speak?
Mr. Alan B. Morrison: I think the pharmacist do have the right to speak in this case.
But they are not here and I do say that there have been cases in this Court and I simply make the observation.
I think that the rights are equal and the same and that when you view the entire transaction together, considering all of the rights involved that you do have a constitutional right to have this information disseminated and received in this case.
What I am saying is that there have been a couple of cases where the right to receive has seemingly been elevated above the right of the person who is making the statement had under our constitution.
Justice Harry A. Blackmun: Mr. Morrison, maybe this is why I for one anyway, I was a little uneasy about using the phrase such as the right to know.
I think I’d rather plump for something like the free flow of information.
It puts a little less emphasis on the right to know on one party and the right to speak from the other and we have restricted them here a little bit.
And I’m groping obviously.
Mr. Alan B. Morrison: I agree with you a hundred percent Mr. Justice Blackmun.
I don’t think and I haven’t read my brief again with that specific in mind that we specifically adapted the right to know phraseology in this Court, largely relying upon Your Honors opinion in Bigelow where that phrase was not involved.
And I agree that the free flow of information is what the First Amendment is really all about.
And we’re suggesting here that the consumers have a very important part to be heard in explaining why this information should be disseminated.
Chief Justice Warren E. Burger: But you don’t suggest that the First Amendment, the right to free speech means that you must have something to say, do you?
Mr. Alan B. Morrison: No, I don’t.
You mean something meaningful to say?
Chief Justice Warren E. Burger: Yes, then if you’re going to measure it by the free flow of information, and information presumably meaning something to say, you put limit on the First Amendment, haven’t you?
Mr. Alan B. Morrison: Well, I don’t think so.
I’m only talking about--
Chief Justice Warren E. Burger: Person has the same right to speak or to write even when he's speaking or writing is utterly foolish, doesn’t he?
Mr. Alan B. Morrison: That is absolutely correct.
I’m only talking about those cases in which a state is claiming that some interest in prohibiting certain kinds of information maybe raised and in those cases, I think that it’s proper as this Court did in Bigelow last year to take a look at the kind of information that we’re talking about.
That was my only point.
Justice Harry A. Blackmun: Well, I take it that information and not noise?
Mr. Alan B. Morrison: Yes, thank you very much.
Chief Justice Warren E. Burger: Do you have anything further Mr. Troy?
Rebuttal of Anthony F. Troy
Mr. Anthony F. Troy: Yes Your Honor.
First as to Bigelow, let me quote from their brief that they filed, pages 28, 29 describing the advertisement in question, “The advertisement contained much more than a proposal for a commercial transaction.
The information that New York had legalized abortions was important not just to persons dealing with pregnancy but the citizens in Virginia generally.
The knowledge that other states had altered their laws on such a controversial subject as abortion is likely to have a tangible impact on the attitude of persons concerning restrictive laws in their own state.”
Well, that was the argument that was made in Bigelow and it is I suggest the argument that was adapted by this Court, when it found that the advertisement did contain certain information.
Justice Harry A. Blackmun: Well, you can see this is the First Amendment case, of course, don’t you?
Mr. Anthony F. Troy: In the context that we have brought it to this court, it has been -- come by an independent right to know granted under the First Amendment and therefore is a First Amendment case.
Justice Potter Stewart: Well, by that you mean that it was on the basis of the First Amendment that this case was decided by the District Court?
Mr. Anthony F. Troy: Exactly.
Justice Potter Stewart: Do you mean anything more than that?
Mr. Anthony F. Troy: Nothing more than that at all.
Justice Harry A. Blackmun: I’ve read your brief this is the First Amendment case.
It is not a Fourteenth Amendment case.
Mr. Anthony F. Troy: In the context that the court decided of the case below, it was decided on a First Amendment basis and the entire argument that we are presenting is that that First Amendment basis was analytically unsound.
How can you regulate--
Justice Harry A. Blackmun: Then this is not a First Amendment case in your view.
Mr. Anthony F. Troy: No, Your Honor.
In other words, there cannot be a First Amendment right to know, as decided by the lower court which would destroy the inherent power of the states to regulate the professions.
Now, I sympathize with the consumers that prices are high and as they’ve stated in their brief at page 25, the effective dissemination of drug price information would revive competition in Virginia, reduce the price of prescription drugs, significantly benefit the consumers and would benefit the public generally by implementing sound economic and social policy but--
Justice William J. Brennan: Was there anything as to the standing of these people to sue in the District Court?
Mr. Anthony F. Troy: Yes, there was Your Honor but that was overruled and it was a overruled on the very basis that as the court said, the Patterson case concerned pharmacy, the case here concerns First Amendment rights of consumers to know.
We find no infirmity in the Patterson case.
Here we are dealing with consumers.
I suggest that you cannot.
I would like to -- if I may, just close by indicating two things --
Justice William J. Brennan: I suppose the consumers would never be hurt – would only hurt to the extent that the druggist would advertise, if it weren’t for this long?
Mr. Anthony F. Troy: Well as I’ve indicated in the monitoring situation as Mr. Morrison indicated, if a doctor prescribes a drug that is bad, we have a malpractice suit on our hands.
Why does the state have to await a malpractice suit, why can’t it try to devise a scheme whereby a pharmacist can stop that bad drug from getting into the hands of the consumers?
I suggest that is a legitimate state interest.
We don’t have to wait for the redress of citizens harmed by drugs through malpractice suits.
Now, in the Fourteenth Amendment case of Head, the statute there “prohibits advertising by any means whatsoever the quotation of any prices or terms on eyeglasses.”
And that statute was upheld, it was upheld under the state's power to regulate sound or improvident, the state regulated in that manner and I say sound or improvident here, the state has chosen this road if it is to be changed, it should be changed by the consumers at the ballot box and not in the court.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.