WILLIAM F. BOLGER, ET AL., APPELLANTS v. YOUNGS DRUG PRODUCTS

   CORP.

   No. 81-1590

   In the Supreme Court of the United States

   October Term, 1982

   On Appeal from the United States District Court for the District of
Columbia

   Brief for the Appellants

                       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 and regulation involved
   Statement
   Summary of argument
   Argument:
      39 U.S.C. 3001(e)(2) is a permissible regulation
      of commercial speech
      A. Section 3001(e)(2) does not interfere
          significantly with free speech
      B. Section 3001(e)(2) promotes substantial
          government interests
      C. Section 3001(e)(2) is no more burdensome
          than necessary to serve these interests
   Conclusion

                             OPINION BELOW

   The opinion of the district court (J.S. App. 1a-18a) is reported at
526 F.Supp. 823.

                             JURISDICITON

   The order of the district court (J.S. App. 19a-20a) was entered on
September 30, 1981, and a notice of appeal to this Court (J.S. App.
21a) 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, and the appeal was docketed on February 25, 1982.
This Court noted probable jurisdicition on May 17, 1982 (J.A. 47).
Its jurisdiction rests on 28 U.S.C. 1252.  United States v. Darusmont,
449 U.S. 292, 293 (1981).

                    STATUTE AND REGULATION 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.

   Domestic Mail Manual Section 123.434 (July 7, 1981) provides:

         Unsolicited advertisements for articles or things which are
      designed, adapted or intended for preventing conception are
      nonmailable, except when sent to a manufacturer of such articles
      or things, a dealer therein, a licensed physician or surgeon, or
      a nurse, pharmacist, druggist, hospital or clinic, or when the
      mailer has no commercial interest in any such item.
      Advertisements 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, are not deemed
      unsolicited for the purposes of this section.

                          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

   1. Appellee is a manufacturer and distributor of contraceptive
devices.  Until a few years ago, appellee's sales promotions consisted
primarily of advertisements in trade publications and popular national
magazines (J.S. App. 1a).  Recently, following a series of "business
discussions" between appellee's marketing director and a wholesaler
carrying appellee's products (J.A. 14), appellee determined to
supplement its traditional sales techniques by embarking on a campaign
of unsolicited mass mailings to members of the public at large (J.S.
App. 1a-2a).

   In early 1979, the Postal Service traced an unsolicited
advertisement for contraceptives to a wholesaler of appellee's
products (J.S. App. 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.  /1/
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)).  /2/

   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 materials as examples of the advertisements it intended to
mail as part of its promotional campaign.  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" (J.S. App. 1a-2a).  /3/
Appellee asserted that Section 3001(e), as applied to its mailings,
violated the First, Fifth, and Ninth Amendments (J.S. App. 5a).

   2. The district court held that "all three types of proposed
mailings are commercial solicitations" and that "this is a commercial
speech case with respect to all three types of proposed mailings"
(J.S. App. 7a, 8a n.5).  The court explained that appellee's mailings
are "promotional materials" in which appellee "has a commercial
interest" (id. at 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).  /4/

   The district court first 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
"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," and 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 addressees" (J.S. App.
10a-11a).  The district court also acknowledged that the interest in
ensuring that appellee's unsolicited mailings "not fall into the hands
of children whose parents do not wish them to be exposed to subject
matter of a sexual nature" was "a central concern" in the case of at
least some of appellee's materials (id. at 16a).

   The district court also ruled that Section 3001(e) "directly
advance(s)" these governmental interests and "would seem to be quite
effective in dealing with the problem of unwanted mailings" (J.S. App.
11a, 12a;  emphasis in original).  The district court rejected
appellee's argument that mailings of noncommercial materials -- which
are not regulated by Section 3001(e)(2) -- could equally impair the
government's interests, noting that "since, 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" (J.S.
App. 12a;  footnote omitted).  In any event, the district court
stated, the Constitution requires 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'" (J.S. App. 12a,
quoting Central Hudson Gas & Electric Corp. v. Public Service
Commission, supra, 447 U.S. at 572;  brackets in original).  To remedy
this perceived defect, the district court "devised a less restrictive
alternative" (J.S. App. 17a), which it then ordered into effect (id.
at 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 page of the flyer, or
by some other manner of graphic design dominate() the rest of the
flyer" (id. at 13a, 16a & n.10).  The district 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).  /5/

   The district court acknowledged that its order did not fully serve
all the objectives of Section 3001(e)(2).  The district court pointed
out that "(i)n particular, these requirements do not provide absolute
protection against having material concerning contraception
occasionally fall into the hands of inquisitive children" (J.S. App.
18a).  But the district court declared that it was "satisfied that it
has struck the balance that the Constitution mandates" (ibid.).

                          SUMMARY OF ARGUMENT

   39 U.S.C. 3001(e)(2), by its terms and as interpreted by the Postal
Service, applies only to commercial speech.  As the district court
found, all of appellee's proposed unsolicited mailings are commercial
expression.  This Court's decisions make it clear that Congress may
regulate commercial speech if it "assert(s) a substantial interest and
the interference with speech (is) in proportion to the interest
served" (In re R.M.J., No. 80-1431 (Jan. 25, 1982), slip op. 11).
That test is satisfied here.

   A. 1. Section 3001(e)(2) imposes, as most, a minimal burden on
expression.  Not only does it have no effect whatever on noncommercial
speech -- such as any mailings by organizations promoting birth
control as a moral or political cause -- but it reaches only those
advertisements that are sent by mail on an unsolicited basis.
Appellee and other advertisers therefore remain free to promote
contraceptives in a wide variety of ways.

   In addition, any person who wants to receive appellee's
advertisements may do so;  appellee need only obtain his consent.
Appellee may even attempt to obtain this consent through the mails,
because 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.  Section 3001(e)(2) also permits contraceptive
advertisements to be placed in publications that are sent through the
mails, so long as the publication itself is not unsolicited, and it
permits unsolicited advertisements to be mailed to physicians,
pharmacists, dealers, and others with a professional interest.

   Commercial speech is protected by the First Amendment because of
its value to the listener, not because of its value to the advertiser.
 Thus, to the extent Section 3001(e)(2) prevents appellee's
advertisements from reaching unwilling recipients, it has no adverse
effect on First Amendment rights.  Because it prohibits only
unsolicited mailings, Section 3001(e)(2) will 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 in the
form of unsolicited advertisements through the mails.  Even as to this
group, it is implausible to suppose that unsolicited mailed
advertisements are of great importance to people making a decision
about a personal and sensitive subject like contraception.

   2. Unlike other restrictions on commercial speech that this Court
has invalidated, Section 3001(e)(2) is not an attempt to influence
behavior by denying information to consumers.  On its face, the narrow
restriction imposed by Section 3001(e)(2) is obviously not designed
for this purpose.  It allows information to reach any consumer who
seeks it;  it permits a wide range of commercial (and all
noncommercial) messages to reach all consumers;  and the sole category
of expression it does restrict is among that least likely to play a
role in a consumer's decisions on the subject of contraception.  In
contrast, the predecessor of Section 3001(e)(2) prohibited all
mailings, commercial and noncommercial, concerning contraceptive
products;  Congress repealed this sweeping prohibition and replaced it
with the limited regulation of Section 3001(e)(2) prohibited all
mailings, commercial and noncommercial, concerning contraceptive
products;  Congress repealed this sweeping prohibition and replaced it
with the limited regulation of Section 3001(e)(2) because it
recognized (explicitly in the legislative history) that contraception
is a matter of personal choice, to be left to each individual.

   B. 1. Section 3001(e)(2) directly promotes the government's
substantial interest in aiding parents' efforts to discuss sensitive
and important subjects like birth control with their children.
Congress may legitimately attempt to ensure that, if parents so
desire, they -- not appellee or another manufacturer promoting its
wares -- will introduce their children to the subject of contraception
and instruct them on that subject.  As this Court has recognied, the
nature and volume of unsolicited mailed advertisements make them a
particularly intrusive form of communication;  parents may not even
know that this mail contains promotional messages for contraceptives,
and Congress was entitled to conclude that even if they do know, they
cannot reasonably be expected to monitor all of this mail closely to
ensure that advertisements for contraceptives do not fall into their
children's hands.

   It is true, as appellee argued in the district court, that Section
3001(e)(2) permits noncommercial mailings about contraception and to
that extent does not further the interest mentioned above.  But the
Constitution allows, and sometimes requires, a legislature to leave
noncommercial expression unregulated in circumstances in which
commercial speech can be restricted.  Moreover, Congress might
reasonably have concluded that because the form, content, and volume
of advertisements like appellee's are dictated by the sender's
commercial interests, they are more likely to interfere with parents'
efforts to educate their children on a sensitive subject.  Congress
can properly determine that such efforts, while not isolated from the
wide range of information and communcation left untouched by Section
3001(e)(2), should be free from the intrusion of inappropriate "junk
mail" and unwanted, commercially motivated solicitations.

   2. Especially when expression intrudes on a home, as unsolicited
commercial mail does, the government has a substantial interest in
protecting recipients from materials they are likely to find
offensive.  This is particularly so when the governmental regulation
reaches only commercial expression and when the regulation is, like
Section 3001(e)(2), not prompted by Congress's disagreement with a
message conveyed by the advertising.

   There can be little doubt that mnay persons find commercial,
promotional messages about a matter like contraception -- a matter so
personal and private that it has a special constitutional status -- to
be offensive.  Apparently, the district court and appellee believe
this problem can be solved by distinguishing between "tasteful" and
"tasteless" promotions;  that approach presents obvious, and fatal,
constitutional and practical difficulties.

   C. Although the district court acknowledged the substantial
governmental interests served by Section 3001(e)(2), the court
invalidated the statute because it believed it had "devised" a less
restrictive alternative.  The principal effect of the district court's
alternative scheme is to shift the burden and cost of distinguishing
between willing and unwilling recipients from the advertiser to the to
the unwilling recipient.  Since, as we have said, appellee and other
advertisers may use a pre-mailing to ask postal customers to request
their products, the only gain from the district court's approach is
that appellee will be able to make one less mailing to those
customers, if any, who are interested in its advertisements but have
not already requested them in some way.

   Moreover, as the district court conceded, its alternative is not as
effective as Section 3001(e)(2) in achieving Congress's objectives.
The district court's alternative may make it more likely that
contraceptive advertisements will fall into the hands of children;  it
may increase the offensiveness of such advertisements;  and as a
practical matter it will prevent unwilling recipients from cutting off
advertisements until they have received at least one unwanted mailing.
 Finally, the district court's alternative will probably not even be
less restrictive of First Amendment rights;  under that alternative, a
recipient who objects to contraceptive advertisements will be forced
to remove himself from the advertiser's mailing list entirely, with
the result that he will be deprived of information about the
advertiser's other products -- precisely the sort of deprivation that
the constitutional protection for commercial speech is intended to
prevent.

   More fundamentally, however, the district court erred in viewing
"less restrictive alternative" analysis as an invitation to design a
regulatory scheme that, in its view, struck a superior balance among
the competing interests.  Particularly in the area of commercial
expression, the district court was not empowered to engage in this
essentially legislative task.

                               ARGUMENT

   39 U.S.C. 3001(e)(2) IS A PERMISSIBLE REGULATION OF

   COMMERCIAL SPEECH

   By its terms, 39 U.S.C. 3001(e)(2) applies only to
"advertisements," and the Postal Service has further interpreted it
not to apply where the mailer has "no commercial interest" in the
materials.  /6/ Section 3001(e)(2) therefore reaches only commercial
speech -- "'expression related solely to the economic interests of the
speaker and its audience'" (In re R.M.J., No. 80-1431 (Jan. 25, 1982),
slip op. 12 n.17, quoting Central Hudson Gas & Electric Corp. v.
Public Service Commission, 447 U.S. 557, 561 (1980)).

   In addition, as the district court found, all the materials
involved in this case are commercial speech.  In seeking to mail its
unsolicited materials promoting contraceptives, appellee's "sole
purpose was to encourage members of the public to (buy its products)
for * * * profit" (In re R.M.J., supra, slip op. 12 n.17).  The
drugstore flyers containing advertisements for contraceptives (J.A.
16-19, 42-45) are no more than "'speech proposing a commercial
transaction'" and therefore fall within the core definition of
commercial speech (Central Hudson Gas & Electric Corp. v. Public
Service Commission, supra, 447 U.S. at 562, quoting Ohralik v. Ohio
State Bar Association, 436 U.S. 447, 456 (1978);  see, e.g.,
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 appellee proposes to mail are, as appellee
acknowledges (J.A. 7), also "commercial activity" (Ohralik v. Ohio
State Bar Assocation, supra, 436 U.S. at 456;  Friedman v. Rogers, 440
U.S. 1, 10 n.9 (1979));  they are "primarily concerned with providing
information about the characteristics and costs of goods and services"
(Village of Schaumburg v. Citizens for a Better Environment, 444 U.S.
620, 632 (1980)).  /7/ The fact that some of these materials take the
form of "advertising that links 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.  /8/

   Commercial speech 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,
supra, 436 U.S. at 456;  see, e.g., Virginia State Board of Pharmacy
v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-772
n.24 (1976).  Specifically, "(t)he 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.  Therefore, in deciding whether a restriction on
commercial expression is valid, "a court may not escape the task of
assessing the First Amendment interest as stake and weighing it
against the public interest allegedly served by the regulation."
Bigelow v. Virginia, 421 U.S. 809, 826 (1975);  see Metromedia, Inc.
v. City of San Diego, 453 U.S. 490, 502-503, 517 (1981) (plurality
opinion);  Linmark Associates, Inc. v. Township of Willingboro, 431
U.S. 85, 91 (1977).  While the power to regulate commercial speech is
greatest when the speech is deceptive or proposes an illegal
transaction, the Court has made it clear that the government "retains
* * * authority to regulate" other forms of commercial expression if
it "assert(s) a substantial interest and the interference with speech
(is) in proportion to the interest served." In re R.M.J., supra, slip
op. 11;  see Central Hudson Gas & Electric Corp. v. Public Service
Commission, supra, 447 U.S. at 564.

         A. Section 3001(e)(2) Does Not Interfere Significantly With
      Free Speech

   1. Section 3001(e)(2) constitutes, at most, a minimal burden on
expression.  Because it is limited to "advertisements" in which the
sender has a "commercial interest," Section 3001(e)(2) has no effect
on the activities -- including the unsolicited mailings -- of
individuals or organizations committed to advocating birth control or
family planning as a moral or political matter.  Instead, Section
3001(e)(2) concerns only "solicitation for pecuinary gain" (In re
Primus, 436 U.S. 412, 422 (1978)).  The Postal Service's
interpretation of Section 3001(e)(2) was issued to make this point
clear (see pages 13-14 note 6, supra).

   Moreover, even within the area of commercial advertising for
contraceptives, 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).  Nor does Section 3001(e)(2) resemble
the regulatory measure at issue in Central Hudson Gas & Electric Corp.
v. Public Service Commission, supra, which "completely ban(ned)
promotional advertising by an electrical utility" (447 U.S. at 558).
See also Bates v. State Bar, 433 U.S. 350, 379, 383 (1977) ("the
suppression of all advertising by attorneys";  "blanket suppression");
 Virginia State Board of Pharmacy v. Virginia Citizens Consumer
Council, Inc., supra, 425 U.S. at 771 (regulation "singles out speech
of a particular content and seeks to prevent its dissemination
completely").  Far from being an absolute ban, Section 3001(e)(2) does
not bar any major channel of communication or require that advertising
for contraceptives conform to certain narrow specifications.

   Advertising that does not rely on the mails is unaffected by
Section 3001(e)(2).  The statute also leaves appellee free to mail its
advertisements to persons who have requested them.  Appellee may
promote its contraceptives in newspapers and other publications that
are sent through the mails to subscribers.  Furthermore, appellee may
use the mails, even without a request, to reach physicians,
pharmacists, dealers, and others who are in the best position to buy
its products in large quantities and recommend or distribute them.
Thus, appellee is prevented only from engaging in mass mailings of its
promotional materials to members of the general public who have not
asked to receive them.  Appellee does not suggest, and the district
court did not find, that the numerous alternatives to mass mailings
are available only "'in theory,'" while "'in practice'" unsolicited
mailed advertisements are the only effective means of promoting its
products.  See Metromedia, Inc. v. City of San Diego, supra, 453 U.S.
at 516, quoting Linmark Associates, Inc. v. Township of Willingboro,
supra, 431 U.S. at 93;  United States Postal Service v. Council of
Greenburgh Civic Associations, 453 U.S. 114, 135-136 (1981) (Brennan,
J., concurring).  Indeed, until very recently, appellee, which has
sold contraceptives for 60 years (J.A. 5), used a sales force and
advertisements in national magazines exclusively (J.S. App. 1a) --
apparently with considerable success -- to reach potential customers.

   In additon, this Court has frequently emphasized the hardiness of
commercial speech.  See, e.g., Central Hudson Gas & Electric Corp. v.
Public Service Commission, supra, 447 U.S. at 564 n.6;  Bates v. State
Bar, supra, 433 U.S. at 381.  "Commercial speech, because of its
importance to business profits, and because it is carefully
calculated, is * * * less likely than other forms of speech to be
inhibited by proper regulation." Friedman v. Rogers, supra, 440 U.S.
at 10.  The principle that the overbreadth doctrine generally does not
apply to commercial expression (see Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., No. 80-1681 (Mar. 3, 1982), slip op.
7) rests on the premise that one who has a commercial interest in
speaking is likely to do so even in ways that may appear to be
prohibited by a statute.  See New York v. Ferber, No. 81-55 (July 2,
1982), slip op. 25.  A fortiori, appellee and other manufacturers and
distributors of contraceptives, impelled by the profit motive, are
likely to be resourceful in devising means of eaching potential
customers other than unsolicited mailings.

   Finally, Section 3001(e)(2) applies only to unsolicited mailings,
and therefore does not prevent any willing recipient from receiving
advertisements for contraceptive products.  Appellee may use any
number of means -- such as flyers distributed at drugstores or with
its products -- to obtain the necessary consent to mail its
advertisements.  Appellee may even use the mails in this effort;  the
Postal Service does not interpret Section 3001(e)(2) to prohibit a
"premailing" that, while not advertising contraceptive products,
notifies recipients that such advertisements are available upon
request.  Thus, at most, the net effect of Section 3001(e)(2) is to
require appellee to conduct a single additional mailing to those
consumers who are interested in appellee's advertisements but have not
already requested them.  Neither the district court nor appellee has
suggested any reason to believe that this will be a large class.  /9/

   Appellee apparently would find its commercial interests better
served by mass unsolicited mailings of advertisements to willing and
unwilling recipients alike.  But the purpose of protecting commercial
expression is not to ensure that sellers will be able to select what
they consider to be the optimal marketing strategy.  The Court has
suggested that the speech of corporate entities -- even noncommercial
speech on matters of pressing public concern -- is protected not
because of its importance to the speaker but because of "its capacity
for informing the public * * *." First National Bank v. Bellotti, 435
U.S. 765, 777 (1978);  see Consolidated Edison Co. v. Public Service
Commission, 447 U.S. 530, 534 n.1 (1980).  See also CBS, Inc. v. FCC,
453 U.S. 367, 395 (1981), quoting Red Lion Broadcasting Co. v. FCC,
395 U.S. 367, 389 (1969).  And the Court has stated that "(t)he First
Amendment's concern for commercial speech is based on the
informational function of advertising." Central Hudson Gas & Electric
Corp. v. Public Service Commission, supra, 447 U.S. at 563 (emphasis
added);  see Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., supra, slip op. 6 & n.8 (regulation does not offend the First
Amendment if it does not "appreciably limit (a seller's communication
of information * * * to its customers");  Metromedia, Inc. v. City of
San Diego, supra, 453 U.S. at 505-506 n.12.  See also Virginia State
Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra,
425 U.S. at 762-765.  In otherwords, in the are of commercial speech
the First Amendment is concerned with the likely value of the
expression to the listeners, not to the advertiser.

   Seen in this light, the insignificance of the burden Section
3001(e)(2) imposes on free expression becomes clear.  To the extent
Section 3001(e)(2) prevents appellee's advertisements from reaching
unwilling recipients, it has no adverse effect on First Amendment
values.  Because it regulates only unsolicited mailings, Section
3001(e)(2) will 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 commercial advertisements.  Moreover, to whatever extent
consumers generally depend on unsolicited advertisements in deciding
what to buy, it is implausible to suggest that this source of
information is of great importance to people making "private and
sensitive" decisions (Carey v. Population Services International,
supra, 431 U.S. at 685) about contraception.  See Virginia State Board
of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra, 425
U.S. at 763-765 (importance of prescription drug prices to consumers
of prescription drugs);  Linmark Associates, Inc. v. Township of
Willingboro, supra, 431 U.S. at 93 (usefulness of "For Sale" signs to
prospective home buyers).  See generally In re R.M.J., supra, slip op.
8 n.11 ("The commercial speech doctrine is itself based on certain
empirical assumptions as to the benefits of advertising.").

   2. It also cannot plausibly be contended that Section 3001(e)(2) is
an effort to influence individuals' choices about whether to practice
contraception.  /10/ 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., Bates v. State Bar, supra, 433 U.S. at 375;  Linmark
Associates, Inc. v. Township of Willingboro, supra, 431 U.S. at 94-97;
 Virginia State Board of Pharmacy v. Virginia Citizens Consumer
Council, Inc., supra, 425 U.S. at 770.  This is clear from both the
statute on its face and its legislative history.  The narrow
restriction imposed by Section 3001 (e)(2) could not have been
designed to influence behavior by reducing the free flow of
information;  as we noted above, it permits a wide variety of
commercial and noncommercial information about contraception to reach
consumers, and places no restriction whatever on the ability of any
consumer who wants information to receive it.  The relatively small
amount of expression Section 3001(e)(2) does restrict is among that
least likely to play a role in the important decisions consumers make
on this subject.

   In addition, the legislative history of Section 3001(e)(2) shows
that Congress, respecting the personal nature of decisions about
contraception, deliberately chose to allow nearly all commercial and
noncommercial communication about contraceptives to use the mails,
regulating only unsolicited advertisements.  The predecessor of
Section 3001(e)(2) banned all mailings, commercial and noncommercial,
concerning contraceptive products;  its prohibitions applied to any
"written or printed card, letter, circular, book, pamphlet,
advertisement, or notice of any kind giving information, directly or
indirectly, where, or how, or from whom, or by what means
(contraceptive drugs or devices) may be obtained * * * or how or by
what means conception may be prevented" as well as "(e)very paper,
writing, advertisement, or representation that any article * * * may,
or can, be used or applied for preventing conception * * *." 18 U.S.C.
(1964 ed.) 1461.  In 1971, however, Congress replaced this sweeping
prohibition with Section 3001(e) -- a narrow regulation of unsolicited
commercial advertisements alone.  Act of Jan. 8, 1971, Pub. L. No.
91-662, 84 Stat. 1974.  Such a step would not have been taken by a
legislature that intended to influence citizens not to practice
contraception.  /11/ In fact, the legislative history explains that
Congress replaced the blanket prohibition with Section 3001(e) because
it "(r)ecogniz(ed) that the use of contraceptive devices is a matter
of individual choice for each citizen" (116 Cong. Rec. 20630 (1970)
(remarks of Rep. Byrnes)), although it believed that unsolicited
mailings of advertisements, except to physicians, hospitals,
distributors, and the like, presented special concerns and should
continue to be proscribed (see ibid.; S. Rep. No. 91-1472, 91st Cong.,
2d Sess. 2 (1970)).

         B. Section 3001(e)(2) Promotes Substantial Government
      Interests

   As the district court recognized, 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 parents' wishes, fall into the hands of children.
Although Congress did not announce these interests in the legislative
history when it enacted Section 3001(e), it is clear that Congress had
such objectives in mind;  it repealed all prohibitions against
solicited mailings of contraceptive devices and advertisements for
contraceptives, as well as the prohibition on unsolicited mailings to
those with a professional interest in the products, while taking care
not to permit unsolicited mailings to other persons.

   1. It is undeniable that the government has a substantial interest
in aiding parents' efforts to discuss sensitive and important subjects
such as birth control with their children.  "(C)onstitutional
interpretation has consistently recognized that the parents' claim to
authority in their own household to direct the rearing of their
children is basic in the structure of our society. * * * The
legislature (can) properly conclude that parents and others * * * who
have this primary responsibility for children's well-being are
entitled to the support of laws designed to aid discharge of that
responsibility." Ginsberg v. New York, 390 U.S. 629, 639 (1968).  Many
parents have strong moral and religious views concerning how their
children should be educated about contraception and related subjects.
Moreover, when sensitive subjects like contraception are involved, it
is particularly important to prevent interference with the lines of
communication between parents and children.  See H.L. v. Matheson, 450
U.S. 398, 410 (1981), quoting Bellotti v. Baird, 443 U.S. 622, 637
(1979) ("(P)arents have an important 'guiding role' to play in the
upbringing of their children * * * which presumptively includes
counseling them on important decisions.").  See also New York v.
Ferber, supra, slip op. 9;  id. at 10, citing FCC v. Pacifica
Foundation, 438 U.S. 726 (1978) ("(T)he government's interest in the
'well-being of its youth' justifie(s) special treatment of indecent
broadcasting received by adults as well as children.");  Erznoznik v.
City of Jacksonville, 422 U.S. 205, 212 (1975).

   Unsolicited advertisements for contraceptives can work a "direct
interference with the parental guidance that is especially appropriate
in this sensitive area of child development" (Carey v. Population
Services International, supra, 431 U.S. at 708 (Powell, J.,
concurring)).  Section 3001(e)(2) is an effort by Congress to ensure
that if parents so desire, they -- not appellee or another
manufacturer engaged in an effort to promote its wares -- will
introduce their children to the subject of contraception and instruct
them on that subject.  "It is through the family that we inculcate and
pass down many of our most cherished values, moral and cultural."
Moore v. City of East Cleveland, 431 U.S. 494, 503-504 (1977)
(pluraltiy opinion) (emphasis added).  The district court was plainly
correct in finding that Section 3001(e)(2) directly helps "prevent
(contraceptive advertisements) from falling into the hands of the
children of addressees who do not wish their children to be exposed to
(them)" (J.S. App. 11a).  As this Court has recognized, postal
customers routinely receive large amounts of unsolicited commercial
mail (Rowan v. Post Office Department, 397 U.S. 728, 736 (1970));
such mail can reach "avalanche" proportions (J.S. App. 12a).
Presumably, many addressees do not examine this mail immediately with
care, but they also do not automatically dispose of unsolicited
commercial mail without reading it all;  otherwise, advertisers would
not find it worth sending.  Consequently, many parents will not know
that unsolicited promotional discussions of contraceptives are
arriving in their homes.  Even if they do know, it is unreasonably
burdensome to expect parents to monitor this large volume of mail from
the time it arrives at the home, and to examine every piece to
determine if it must be placed beyond their children's reach.

   In this respect, unsolicited commercial mail is a particularly
intrusive medium.  See Metromedia, Inc. v. City of San Diego, supra,
453 U.S. at 501, quoting Kovacs v. Cooper, 336 U.S. 77, 97 (1949)
(Jackson, J., concurring) ("Each method of communicating * * * is 'a
law unto itself' and that law must reflect the 'differing natures,
values, abuses and dangers' of each method.").  /12/ Unsolicited mail
ordinarily arrives directly at the family's residence;  unlike a
drugstore display or even a billboard (see Carey v. Population
Services International, supra, 431 U.S. at 717 (Stevens, J.,
concurring)), a family cannot avoid it.  The Court has permitted close
regulation of the broadcast media in part precisely because they
"confront() the citizen, not only in public, but also in the privacy
of the home, where the individual's right to be left alone plainly
outweighs the First Amendment rights of an intruder" (FCC v. Pacifica
Foundation, supra, 438 U.S. at 748);  and unlike messages on those
media, the arrival and availability of unsolicited mail cannot be
scheduled for times when children are unlikely to be exposed to it.
/13/

   Appellee argued in the district court (see J.S. App. 11a-12a) that
these interests cannot be advanced in support of Section 3001 (e)(2)
because that statute does not prevent noncommercial messages -- for
example, pamphlets from organizations advocating a certain position on
birth control as a social or ideological matter -- from reaching
children.  But it is plainly reasonable for Congress to determine that
parents' discussions of a sensitive subject with their children, while
not isolated from the wide range of information and communication left
untouched by Section 3001(e)(2), should at least be free from the
"unwarranted * * * intrusion" (Eisenstadt v. Baird, 405 U.S. 438, 453
(1972)) of inappropriate "junk mail" and unwanted, commercially
motivated, solicitations.  Unlike mailings intended as a contribution
to a public debate, the form and content of the advertisements
regulated by Section 3001(e)(2) are dictated solely by the sender's
commercial interest in selling his product.  It was reasonable for
Congress to conclude that such advertisements are more of a potential
interference with parents' efforts to instruct their children than the
economically disinterested advocacy of a social or political view.
Compare Ohralik v. Ohio State Bar Association, supra, with In re
Primus, supra.  In addition, as the district court noted, commercial
mailers, because of "the profit motive that fuels" them, are likely to
be more persistent and aggressive and to mail in larger quantities
(J.S. App. 12a, citing Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, supra, 425 U.S. at 771-772 n.24;  Bates v.
State Bar, supra, 433 U.S. at 380-381).  This too suggests that
commercial mailings constitute more of a potential interference with
the relationship between parents and children.  See also Metromedia,
Inc. v. City of San Diego, supra, 453 U.S. at 511-512 (municipality
need not regulate all speech that interferes with the objectives it
seeks to promote).

   Even if noncommercial mailings do impair the same interests, to the
same degree, as commercial mailings, the First Amendment may require
that the cost be borne in the case of speech that is entitled to full
constitutional protection.  The Postal Service has therefore made it
clear that social and political advocacy is exempt from the
prohibitions of Section 3001(e)(2).  See pages 13-14 and note 6,
supra.  But this Court has always held that commercial speech is
entitled to less protection than speech advocating a social or
political cause.  See page 15, supra.  For essentially this reason,
the Court long ago ruled that the intrusions of house-to-house
solicitation would have to be suffered at the hands of a person
exercising rights fully protected by the First Amendment (Martin v.
City of Struthers, 319 U.S. 141 (1943)) but not when the speaker was
engaged in commercial solicitation (Breard v. Alexandria, 341 U.S.
622, 641-643 (1951)).

   2. The government also has a substantial interest in shielding all
recipients of mail from materials that they are likely to find
offensive.  We recognize that this is a problematic reason for
regulating expression;  little would be left of the First Amendment if
speech could be banned whenever some might find it offensive.  See,
e.g., NAACP v. Claiborne Hardware Co., No. 81-202 (July 2, 1982), slip
op. 23-25, citing Organization for a Better Austin v. Keefe, 402 U.S.
415, 419 (1971);  Cohen v. California, 403 U.S. 15 (1971).  But the
Court has ruled that when expression enters the home, its potential
offensiveness is a proper reason for regulation.  See Consolidated
Edison Co. v. Public Service Commission, supra, 447 U.S. at 541-542;
/14/ FCC v. Pacifica Foundation, supra, 438 U.S. at 748;  Erznoznik v.
City of Jacksonville, supra, 422 U.S. at 209;  Bigelow v. Virginia,
supra, 421 U.S. at 828;  Rowan v. Post Office Department, supra.

   Moreover, Congress should have greater freedom in regulating
potentially offensive commercial speech, especially if -- as here --
there is no danger that the expression is being restricted because
Congress disagrees with an implicit message it conveys.  Since
commercial speech is entitled to less constitutional protection, and
the costs of suppression are primarily economic, /15/ there is far
less reason to allow a speaker to use an offensive form of
communication to draw attention to its message.  See Cohen v.
California, supra, 403 U.S. at 24-26.  Indeed, one of the principal
reasons for permitting speakers to use offensive expression -- that it
allows them to express "otherwise inexpressible emotions" (id. at 26)
-- is simply inapplicable to commercial speech.  For the Court to hold
that the potential offensiveness of a commercial advertisement cannot
justify a regulation would, therefore, be a significant expansion of
the constitutional protection afforded commercial speech.

   Here, as we have said, there is no basis for concluding that
Congress acted out of hostility to the advocacy or practice of
contraception, or that Congress intended to interfere with full public
debate on the issue.  Decisions about contraception are
constitutionally protected because they are personal and intimate, and
of particular importance to the individual (Whalen v. Roe, 429 U.S.
589, 599-600 (1977);  Griswold v. Connecticut, 381 U.S. 479, 484-486
(1965));  a commercial treatment of such a private and sensitive
subject may well give offense to many.  /16/ Furthermore, Section
3001(e)(2) regulates only expression that enters the home -- in, as we
have explained, a particularly intrusive fashion.  The Court has said
of unsolicited mail (Rowan v. Post Office Department, supra, 397 U.S.
at 738):

      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.

   See also Carey v. Brown, 447 U.S. 455, 471 (1980).  Finally, the
government's interest in not subjecting citizens 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, 453 U.S. at 514 n.19)
-- the Postal Service -- that is normally subject to its plenary
control.  See United States Postal Service v. Council of Greenburgh
Civic Associations, supra, 453 U.S. at 126-131;  see Consolidated
Edison Co. v. Public Service Commission, supra, 447 U.S. at 540 ("the
special interests of a government in overseeing the use of its
property").  See also Lehman v. City of Shaker Heights, 418 U.S. 298
(1974).

   The district court, while not denying that potential offensiveness
might justify regulating the mass mailing of contraceptive
advertisements, dealt with the problem by explicitly limiting its
holding to "tasteful" advertisements (J.S. App. 2a).  The district
court found that appellee's materials were tasteful, and it intimated
that Section 3001(e)(2) might properly be enforced against "tasteless"
advertisements (J.S. App. 14a n.8).  See also Motion to Affirm 2-3.

   Whether or not appellee's materials are in some sense "tasteful,"
the difficulties of this approach are obvious.  Any attempt to
distinguish between "tasteful and "tasteless" advertisements would
offend First Amendment values by "increas(ing) opportunities for the
content-based censorship disfavored by the First Amendment" (New York
v. Ferber, supra, slip op. 1 (O'Connor, J., concurring)).  Indeed, any
such distinction would almost certainly be unconstitutionally vague, 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)).  /17/ For these reasons,
it must be assumed that, without Section 3001(e)(2), "tasteless" as
well as "tasteful" advertisements will be mailed to people who do not
wish to receive them.  /18/ Section 3001(e)(2) thus significantly
furthers the government's substantial interest in preventing offensive
material from reaching unwilling recipients.

         C. Section 3001(e)(2) Is No More Burdensome Than Necessary to
      Serve These Interests

   Although the district court found that "the Government does have a
substantial interest to be achieved by this statute" (J.S. App. 10a),
the court invalidated Section 3001(e)(2) because it believed it had
"devised" a less restrictive alternative (id. at 17a).  This
alternative essentially consists of allowing advertisements for
contraceptives to be mailed to homes that do not request them, if the
advertisements are (i) on the inside pages of -- and not graphically
dominant in -- a flyer that advertises other products, or (ii)
enclosed in an envelope that notifies the recipient of the contents,
states that they are unsolicited, and gives the recipient an
opportunity to have his name removed from the sender's mailing list
(id. at 13a-15a).

   1. As we have explained, appellee and other advertisers of
contraceptive products are free to use a premailing to ask postal
customers to solicit their advertisements.  Appellee has no legitimate
interest in sending unsolicited advertisements for contraceptives to
unwilling recipients (see page 20, supra).  Thus, the only gain from
the district court's approach -- the only respect in which it is even
arguably less restrictive than Section 3001(e)(2) -- is that instead
of using a pre-mailing, appellee would be able to mail advertisements
directly to people who are not sufficiently interested to request
them.

   This modest benefit plainly does not offset the substantial costs
and risks of the district court's approach.  The district court
conceded (see J.S. App. 18a) that its suggested alternative is not
equally effective in achieving the objectives of Section 3001(e)(2);
the court acknowledged, for example, that a "prominent," explicit
notice on the outside of the envelope (J.S. App. 15a) might increase
the risk of advertisements falling into the hands of children (ibid).
Such a notice might also make the mailings more offensive to many
recipients.

   Moreover, the principal effect of the district court's alternative
is that instead of appellee's bearing the burden of conducting an
additional mailing to determine who wants to receive its
advertisements, unwilling recipients would bear the burden of
notifying appellee or the Postal Service that they do not wish to
receive them.  The district court did not explain why this cost should
be placed on the unwilling recipients, instead of being treated as a
cost of advertising.  In addition, the government would incur the
costs of administering the district court's scheme.  And the district
court's suggestion that unwilling recipients be permitted to cut off
further mailings remains less effective than Section 3001(e) (2);  a
recipient would, in practice, have to receive at least one offensive
mailing before he could invoke the protection Section 3001(e)(2) now
affords automatically.  /19/ See also page 7 note 5, supra.

   Finally, under the district court's approach, an addressee who
objected to contraceptive advertisements would "have his name removed
from the (mailer's) mailing list" entirely (J.S. App. 15a).  The
result would be to deprive the recipient of information about the
mailer's other products.  /20/ As we have explained, this is precisely
the sort of deprivation that the constitutional protection for
commercial speech is designed to prevent.  Thus not only is the
district court's alternative not as effective in promoting the
objectives of Section 3001(e)(2);  in many circumstances, it may also
be more, not less, restrictive of First Amendment freedoms.

   2. The district court's approach also suffers from a more
fundamental flaw.  "The logic of * * * elaborate
less-restrictive-alternative arguments" like the district court's
"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 was explicit in viewing "least restrictive alternative" analysis
as a broad invitation to duplicate the task Congress performed when it
considered the problems that gave rise to Section 3001(e)(2), balanced
the relevant interests, and enacted a regulatory scheme (see J.S. App.
18a).  But when legislation regulating speech is challenged, it will
almost always be possible to "devise" some alternative approach that
is arguably less restrictive and that arguably promotes some of the
government's interests almost as well as the approach Congress chose.
"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 enable himself to vote to strike
legislation down" (Illinois Elections Board v. Socialist Workers
Party, 440 U.S. 173, 188-189 (1979) (Blackmun, J., concurring)).

   This Court has made it clear that even when a regulation affects
fully protected speech, a court should not, in the guise of
determining whether the regulation is sufficiently precise, simply
duplicate Congress's function or second-guess its regulatory approach.
 See United States v. Robel, 389 U.S. 258, 267-268 & n.20 (1967).
There is even less justification for invalidating a regulation of
commercial speech on the ground that the court can devise an
alternative it prefers;  not only is commercial speech of less
intrinsic worth, but the economic interest of commercial speakers
gives them an incentive to seek alternative means of communicating
(see pages 18-19, supra), thus making the excessive breadth of a
regulation less harmful.

   Accordingly, in commercial speech cases, this Court has invalidated
a measure because there was a "less restrictive alternative" only in
certain limited circumstances.  First, if a legislature (or a
regulatory body) overreacts to a discrete problem by enacting an
absolute prohibition on an entire category of expression, the Court
has intervened.  It has pointed out that the government's articulated
reason does not support an absolute ban, and that the government could
enact a more limited restriction without impairing its interests at
all.  See, e.g., Central Hudson Gas & Electric Corp. v. Public Service
Commission, supra, 447 U.S. at 570;  Bates v. State Bar, supra, 433
U.S. at 372-373.  See also Schad v. Borough of Mount Ephraim, 452 U.S.
61 (1981).  It is appropriate for a court to intervene in such
circumstances, both because of the indications that the regulation did
not take sufficient account of First Amendment interests (cf. In re
R.M.J., supra, slip op. 14-15 (suggesting that the regulation might
have been upheld if the record showed "a failed effort to proceed
along * * * a less restrictive path");  Bates v. State Bar, supra, 433
U.S. at 371 ("(H)abit and tradition are not in themselves an adequate
answer to a constitutional challenge.")), and because an absolute ban
will prevent advertisers from exploring alternative means of
communicating commercial information to consumers.

   Second, the Court has insisted that a legislature use a less
restrictive alternative when its regulation of commercial speech was
designed to influence behavior by suppressing information.  See, e.g.,
Central Hudson Gas & Electric Corp. v. Public Service Commission,
supra, 447 U.S. at 570-571, citing Banzhaf v. FCC, 405 F.2d 1082 (D.C.
Cir. 1968), cert. denied sub nom.  Tobacco Institute, Inc. v. FCC, 396
U.S. 842 (1969);  Bates v. State Bar, supra, 433 U.S. at 375;  Linmark
Associates, Inc. v. Township of Willingboro, supra, 431 U.S. at 96-97.
 The Court has explained that the less restrictive "alternative is to
assume that * * * information is not in itself harmful, (and) that
people will perceive their own best interests if only they are well
enough informed." Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, Inc., supra, 425 U.S. at 770.  In other
words, "less restrictive alternative" analysis is a means of enforcing
the principle that "'the fitting remedy for evil counsels is good
ones'" (Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J.,
concurring), quoted in Ohralik v. Ohio State Bar Association, supra,
436 U.S. at 457;  see, e.g., Bates v. State Bar, supra, 433 U.S. at
375 ("(T)he preferred remedy is more disclosure, rather than less.")).

   Section 3001(e)(2) fits neither of these patterns.  It is not an
absolute prohibition.  It leaves open abundant alternative means for
appellee and others to communicate information about their products,
and appellee is free to seek new ways of advertising that are
consistent with Section 3001(e).  Far from being a broad legislative
overreaction to a specific problem, Section 3001(e)(2) greatly
narrowed a regulatory scheme Congress considered excessively
restrictive.  Finally, as we have said, Section 3001(e)(2) is not an
effort to affect behavior by restricting the flow of information;  its
"justification" is based not "on the benefits of public ignorance"
(Bates v. State Bar, Supra, 443 U.S. at 375) but on the potential
interference with parents' efforts to educate their children, and the
potential offensiveness that accompanies a particularly intrusive
manner of circulating commercial advertisements about contraceptives.
Thus, the government's interests cannot be promoted by providing more
speech instead of less.

   In sum, Section 3001(e)(2) is a narrow measure that deals in the
most obvious and direct fashion with specific problems that Congress
has a substantial interest in averting, and that does not violate any
basic principles of the First Amendment by trying to keep the public
in ignorance.  The district court believed its alternative regulatory
scheme struck a better balance among the competing interests, but that
does not make Section 3001(e)(2) unconstitutional.  See Metromedia,
Inc. v. City of San Diego, supra, 453 U.S. at 508 (plurality opinion)
("If the city has a sufficient basis for believing that billboards are
traffic hazards and are unattractive, then obviously the most direct
and perhaps the only effective approach to solving the problems they
create is to prohibit them.").

                              CONCLUSION

   The judgment of the district court should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   KENNETH S. GELLER

      Deputy Solicitor General

   DAVID A. STRAUSS

      Assistant to the Solicitor General

   AUGUST 1982

   /1/ 39 U.S.C. 3001(e)(1) places a similar prohibition on the
unsolicited mailing of contraceptive devices.

   /2/ 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 * * *."

   /3/ Examples of these materials are reproduced at J.A. 16-19,
21-39, 42-45 and Mot. to Aff. App. 3-6, 8-29.

   /4/ In Central Hudson, this Court identified a "four-part analysis"
that has been applied to restrictions on commercial speech (447 U.S.
at 566;  see J.S. App. 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.

   /5/ 39 U.S.C. 3008(a) 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 sold 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 designated addressees
      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 (is) '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.  See Stone, Restrictions of Speech Because of its Content:
 The Peculiar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev.
81, 85 n.17 (1978).

   /6/ In Associated Students v. Attorney General, 368 F.Supp. 11
(C.D. Cal. 1973), a three-judge district court held that the
prohibition on the mailing of "advertisements" in Section 3001(e)(2)
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, confining Section 3001(e)(2) to advertisements in
which the mailer has a commercial interest (see page 4, supra), to
make this interpretation clear.  See Reply Memorandum for the
Appellants at 2.

   /7/ See International Longshoremen's Association v. Allied
International, Inc., No. 80-1663 (Apr. 20, 1982), slip op. 13-14;
Ohralik v. Ohio State Bar Association, supra, 436 U.S. at 456, citing
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949) ("(T)he
State does not lose its power to regulate commercial activity deemed
harmful to the public whenever speech is a component of that
activity.").

   /8/ See also Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
540 (1981) (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.").

   /9/ By contrast, the cost to consumers of the ban on advertising of
drug prices invalidated in Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council, Inc., supra, was very substantial
(see 425 U.S. at 766 n.20), probably several million dollars annually.
 See Jackson & Jeffries, Commercial Speech:  Economic Due Process and
the First Amendment, 65 Va. L. Rev. 1, 26-28 & n.92 (1979).

   /10/ Even though Section 3001(e)(2) regulates unsolicited
advertisements for contraceptives and not for other products, we
believe it is incorrect to view Section 3001(e)(2) as a
"content-based" restriction for First Amendment purposes (see
generally Consolidated Edison Co. v. Public Service Commission, supra,
447 U.S. at 535-541).  Advertising for one product or service may
present different concerns from advertising for another product or
service;  common sense dictates that Congress and state legislatures
be allowed to take account of these differences, and the Court has
never suggested otherwise.

   When striking down a ban on advertisements of prescription drug
prices, for example (Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, Inc., supra), the Court did not suggest
that a state would violate the Constitution if it treated
advertisements for drugs differently from advertisements for
automobiles or groceries, or regulated pharmacists differently from
businessmen.  See 425 U.S. at 773 n.25.  In analyzing regulations of
professional advertising (see In re R.M.J., supra;  Ohralik v. Ohio
State Bar Association, supra;  Bates v. State Bar, supra), the Court
has never suggested that a state must regulate advertising by doctors
or accountants in the same way as it regulates advertising by lawyers.

   Indeed, a plurality of the Court recently endorsed a state's power
to distinguish among categories of commercial speech on the basis of
content, not because of the different regulatory problems presented
but because the state simply "chose() to value one kind of commercial
speech * * * more than another" (Metromedia, Inc. v. City of San
Diego, 453 U.S. at 512), even though a comparable distinction among
categories of noncommercial speech would be unconstitutional (see id.
at 574-575).  We do not assert that commercial speech about
contraceptives is intrinsically less valuable than other forms of
commercial speech;  our contention is that unsolicited mailings of
contraceptive advertisements present legitimate regulatory concerns,
unrelated to Congress's valuation of the content of the speech, that
do not arise in connection with other unsolicited commercial mailings.
 See pages 24-33, infra.

   /11/ By contrast, the prohibition on contraceptive advertising that
this Court invalidated in Carey v. Population Services International,
supra, was part of a statute that also restricted the sale and
distribution of contraceptives.  See 431 U.S. at 681 n.1.  See also
Population Services International v. Wilson, 398 F. Supp. 321, 328 n.7
(S.D.N.Y. 1975) (three-judge court) (state legislature rejected
proposal to permit certain advertising).

   /12/ In Consolidated Edison Co. v. Public Service Commission,
supra, the Court held that a state may not prohibit a utility company
from including a discussion of controversial public issues as an
insert in its electric bills.  But there are a number of distinctions
between Consolidated Edison and this case.  In Consolidated Edison,
the "prohibition of discussion of controversial issues (struck) at the
heart of the freedom to speak" (447 U.S. at 535);  by contrast,
Section 3001(e)(2) regulates only commercial speech.  In addition, a
bill insert is unlikely to escape a recipient's notice in the way that
unsolicited commercial mailings often do;  a recipient will generally
open an envelope containing a bill promptly and examine its contents
with care.

   Precisely because contraception is a "sensitive area of child
development" in which "parental guidance is especially appropriate"
(Carey v. Population Services International, supra, 431 U.S. at 708
(Powell, J., concurring)), contraceptive advertisements present a
greater threat to parents' prerogative to educate their children than
a utility's discussion of a controversial public issue would.  Indeed,
in Consolidated Edison the state did not advance any such
justification for its restriction.  (One principal justification the
state did advance -- that recipients would be offended by the inserts
-- applies with far more force to contraceptive advertisements.  See
page 31, infra.) In any event, there was no suggestion in Consolidated
Edison that the state was willing to permit the utility to determine
which customers were willing to receive inserts and to mail inserts
only to them.  See page 19, supra.

   /13/ In addition, a regulation of the broadcast media generally
prevents every listener, willing and unwilling, from hearing a
message;  a regulation of unsolicited mail permits any person who
requests the mailings to obtain them.  In this respect, regulation of
unsolicited mail presents fewer First Amendment difficulties than
regulation of radio or television.  See Comment, Pacifica Foundation
v. FCC:  "Filthy Words," The First Amendment and the Broadcast Media,
78 Colum. L. Rev. 164, 174 (1978).

   /14/ In Consolidated Edison, the Court considered the potential
offensiveness of a utility's bill inserts to be a permissible
justification for regulation, but ruled that "the seriousness of the
intrusion" (447 U.S. at 541) in that case was insufficient to justify
prohibiting the inserts.

   /15/ See Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council, Inc., supra, 425 U.S. at 762-764;  Jackson &
Jeffries, supra, 65 Va. L. Rev. at 14-18.

   /16/ By contrast, in Carey v. Population Services International,
Inc., supra, the justifications for a regulation of advertising for
contraceptives -- an absolute ban, in that case -- were "directed not
at any commercial aspect of the prohibited advertising but at the
ideas conveyed." 431 U.S. at 701 n.28;  see id. at 716-717 (Stevens,
J., concurring).

   /17/ Even if administrative criteria for distinguishing "tasteful"
from "tasteless" advertisements could somehow be developed, they would
be likely, in practice, to permit a good deal of offensive material to
reach unwilling recipients.

   /18/ The district court also suggested (J.S. App. 17a) that
advertisers will circulate only "tasteful" advertisements because they
will not want to alienate customers.  This is too optimistic an
estimate, as this Court has noted.  See Virginia State Board of
Pharmacy v. Virginia Citizens Consumer Council, Inc., surpa, 425 U.S.
at 765;  FCC v. Pacifica Foundation, supra, 438 U.S. at 744 n.19
(plurality opinion).  Not only is miscalculating public taste one of
the hazards of the advertiser's trade, but many advertisers may find
it profitable to engage in practices that are distasteful to most, but
that have a strong appeal to certain potential consumers.

   /19/ See FCC v. Pacifica Foundation, supra, 438 U.S. at 748-749
("To say that one may avoid further offense by turning off the radio
when he hears indecent language is like saying that the remedy for an
assault is to run away after the first blow.").  See also page 27 note
12, supra.

   /20/ 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.