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

   CORP.

   No. 81-1590

   In the Supreme Court of the United States

   October Term, 1981

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

   Jurisdictional Statement

                       PARTIES TO THE PROCEEDING

   In addition to the parties listed in the caption, the appellants
are the United States Postal Service and William French Smith,
Attorney General.

            TABLE OF CONTENTS                                     Page
   Opinion below
   Jurisdiction
   Statute involved
   =statement
   The question is substantial
   Conclusion
   Appendix A
   Appendix B
   Appendix C

                             OPINION BELOW

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

                             JURISDICTION

   The order of the district court (App. B, infra, 19a-20a) was
entered on September 30, 1981, and a notice of appeal to this Court
(App. C, infra, 21a-22a) was filed on October 30, 1981.  On December
23, 1981, the Chief Justice extended the time for docketing the appeal
to and including February 27, 1982.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1252.  United States v. Darusmont, 449 U.S.
292, 293 (1981).

                           STATUTE INVOLVED

   39 U.S.C. 3001(e) provides:

         (1) Any matter which is unsolicited by the addressee and
      which is designed, adapted, or intended for preventing
      conception (except unsolicited samples thereof mailed to a
      manufacturer thereof, a dealer therein, a licensed physician or
      surgeon, or a nurse, pharmacist, druggist, hospital, or clinic)
      is nonmailable matter, shall not be carried or delivered by
      mail, and shall be disposed of as the Postal Service directs.

         (2) Any unsolicited advertisement of matter which is
      designed, adapted, or intended for preventing conception is
      nonmailable matter, shall not be carried or delivered by mail,
      and shall be disposed of as the Postal Service directs unless
      the advertisement --

         (A) is mailed to a manufacturer of such matter, a dealer,
      therein, a licensed physician or surgeon, or a nurse,
      pharmacist, druggist, hospital, or clinic;  or

         (B) accompanies in the same parcel any unsolicited sample
      excepted by paragraph (1) of this subsection.

         An advertisement shall not be deemed to be unsolicited for
      the purposes of this paragraph if it is contained in a
      publication for which the addressee has paid or promised to pay
      a consideration or which he has otherwise indicated he desires
      to receive.

                          QUESTION PRESENTED

   Whether 39 U.S.C. 3001(e)(2), which prohibits the mailing of
unsolicited advertisements for contraceptives, is unconstitutional as
applied to appellee's commercial mailings.

                               STATEMENT

   Appellee is a manufacturer and distributor of contraceptive
devices.  In order to promote those products, appellee determined to
embark on a campaign of unsolicited mailings to members of the public
at large (App. A, infra, 1a-2a).  In early 1979, the Postal Service
traced an unsolicited advertisement for contraceptives to a wholesaler
of appellee's products (id. at 4a).  It advised the wholesaler of 39
U.S.C. 3001(e)(2), which declares that an "unsolicited advertisement"
of a contraceptive device "is nonmailable matter" unless it is mailed
to a manufacturer, dealer, physician, pharmacist, or hospital, or is
contained in a publication that the addressee has requested.  Postal
Service regulations, of which the wholesaler and appellee were
subsequently informed, specifically exempt from this prohibition
materials in which "the mailer has no commercial interest" (Domestic
Mail Manual (DMM) Section 123.434 (July 7, 1981)).  /1/

   The Postal Service considered and rejected appellee's legal
argument that Section 3001(e) could not constitutionally prohibit its
proposed mailings.  Appellee then brought this action, seeking
declaratory and injunctive relief, in the United States District Court
for the District of Columbia.  Appellee offered three types of
unsolicited promotional materials as examples of its mailings.  The
district court described these as:  "informational pamphlets promoting
the desirability and availability of prophylactics in general, and
(appellee's) products in particular";  "flyers exclusively or
substantially devoted to promoting prophylactics in general, those
made by (appellee), and/or those stocked * * * by a particular
drugstore * * *";  and "multi-page, multi-item flyers * * * promoting
a large variety of products * * * including prophylactics" (App. A,
infra, 1a-21).  /2/ Appellee asserted that Section 3001(e), as applied
to its mailings, violated the First, Fifth, and Ninth Amendments (App.
A, infra, 5a).

   The district court held that "all three types of proposed mailings
are commercial solicitations" because they are "promotional materials"
in which appellee "has a commercial interest" (App. A, infra, 7a, 8a
n.5).  Accordingly, the court considered the constitutionality of
Section 3001(e)(2) in light of the standards prescribed by Central
Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557
(1980).  /3/ The court also noted, however, that it considered
appellee's advertisements to be "tasteful expressions" (App. A, infra,
2a), and it specifically reserved judgment on the constitutionality of
restrictions on "promotion * * * for contraceptive materials * * *
done in a tasteless or palpably offensive style" (id. at 14a n.8).

   Applying the Central Hudson standards, the district court concluded
that "the government does have a substantial interest" in enforcing
Section 3001(e)(2).  The court identified two components of this
substantial interest -- the "protection of the privacy of individuals
in their homes from even one mailing that, because of its sexual
subject matter, is likely to offend some sensitive addresses," and the
"interest in preventing such material from falling into the hands of
the children of addressees who do not wish their children to be
exposed to it" (App. A, infra, 10a-11a).

   The district court also ruled that Section 3001(e) "directly
advance(s)" these governmental interests (App. A, infra, 11a;
emphasis in original).  Indeed, the court stated, Section 3001(e)
"would seem to be quite effective in dealing with the problem of
unwanted mailings. * * * (S)ince, generally speaking, noncommercial
mailers do not mail the avalanche of materials that commercial mailers
do, a ban on commercially-inspired mailings will go far to achieve the
governmental objective involved in this case" (App. A, infra, 12a;
footnote omitted).  In any event, the court said, Central Hudson
required only that a restriction directly advance the government's
interest, not that it be a "complete solution" (ibid.).

   The district court nonetheless concluded that Section 3001(e)(2)
violates the First Amendment "because it is 'more extensive than is
necessary to serve the (governmental interest'" (App. A, infra, 12a,
quoting Central Hudson Gas & Electric Corp. v. Public Service
Commission, supra, 447 U.S. at 572;  brackets in original).  The court
"devised a less restrictive alternative" (App. A, infra, 17a), which
it then ordered into effect (App. B, infra, 19a-20a).  That
alternative consisted, first, of permitting "multi-item drugstore
flyers containing tasteful promotion of contraceptives" to be mailed
without restriction, at least so long as "the ad for contraceptives
(is) * * * buried in the middle pages of the flyer" and does not
"appear() on the front pages of the flyer, or by some other manner of
graphic design dominate() the rest of the flyer" (App. A, infra, 13a,
16a & n.10).  The court ordered that "flyers and pamphlets devoted
exclusively or substantially to promoting the desirability or
availability of contraceptives" would be mailable only if they
satisfied certain conditions (id. at 15a):

      First, they must be mailed in an envelope that completely
      obscures from the sight of the addressee the contents.  Second,
      the envelope must contain a prominent notice stating in capital
      letters that the enclosed material has not been solicited in any
      way by the recipient.  Third, the envelope must contain a
      prominent warning that the contents are "promotional material
      for contraceptive products." Fourth, the envelope must contain a
      notice, in less prominent lettering than the warning and the
      other notice, but not in "fine print," that federal law permits
      the recipient to have his name removed from the mailing list of
      the mailer of that envelope, and citing to 39 U.S.C. Section
      3008(a).  /4/

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

                      THE QUESTION IS SUBSTANTIAL

   39 U.S.C. 3001(e)(2), which applies only to unsolicited
advertisements for contraceptive devices mailed to members of the
general public for commercial purposes, places, at most, a very
limited burden on First Amendment rights.  The district court conceded
that Section 3001(e)(2) directly advances the government's substantial
interest in enabling families to avoid unwanted and offensive
promotional materials that may fall into the hands of children.  The
district court nevertheless invalidated the statute because it
believed it could devise a superior alternative scheme.  But "(a)
judge would be unimaginative indeed if he could not come up with
something a little less 'drastic' or a little less 'restrictive' in
almost any situation, and thereby * * * strike legislation down"
(Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173,
188-189 (1979) (Blackmun, J., concurring)).  As the district court
acknowledged, its approach is not as effective as section 3001(e)(2)
in protecting the governmental interests involved;  in addition, the
district court's approach may in the end place a greater burden on
First Amendment interests than Section 3001(e)(2).  Because there was
an insufficient basis for the district court to upset the balance
Congress struck among the important interests implicated by Section
3001(e)(2), review by this Court is warranted.

   1. "The protection available for particular commercial expression
turns on the nature both of the expression and of the governmental
interests served by its regulation." Central Hudson Gas & Electric
Corp. v. Public Service Commission, supra, 447 U.S. at 563.  Moreover,
"a court may not escape the task of assessing the First Amendment
interest allegedly served by the regulation." Bigelow v. Virginia, 421
U.S. 809, 826 (1975);  see Metromedia, Inc. v. City of San Diego, No.
80-195 (July 2, 1981), slip op. 10-11, 15, 25 (plurality opinion);
Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 91
(1977).

   Section 3001(e)(2) imposes, at most, a minimal burden on First
Amendment rights.  On its face, it applies only to "advertisements";
the Postal Service has further interpreted it not to apply where the
mailer has no "commercial interest" in the materials.  /5/ Commercial
speech, of course, occupies "a subordinate position in the scale of
First Amendment values" and is subject to greater regulation than
fully protected expression.  Ohralik v. Ohio State Bar Association,
436 U.S. 447, 456 (1978);  see, e.g., Metromedia, Inc. v. City of San
Diego, supra, slip op. 13-15 (plurality opinion).  /6/ Thus this case
does not involve the activities -- even the unsolicited mailings -- of
individuals or organizations committed to advocating birth control or
family planning as a moral, political, or ideological matter;  it
concerns only "solicitation for pecuniary gain" (In re Primus, 436
U.S. 412, 422 (1978)).

   Moreover, Section 3001(e)(2) is in no sense comparable to the state
statute, invalidated in Carey v. Population Services International,
431 U.S. 678, 700-702 (1977), that sought "to suppress completely any
information about the availability and price of contraceptives" (id.
at 700).  Advertising that does not rely on the mails is unaffected by
Section 3001(e)(2).  Any person who seeks information about
contraceptive devices may obtain it without restriction even through
the mails, because Section 3001(e)(2) applies only to unsolicited
materials.  Appellee remains free to promote contraceptives in
newspapers and other publications that are sent through the mails as
long as the publication has been requested by the recipient.  This
Court has frequently emphasized the hardiness of commercial speech
(e.g., Central Hudson Gas & Electric Corp. v. Public Service
Commission, supra, 447 U.S. at 564 n.6;  Bates v. State Bar of
Arizona, 433 U.S. 350, 381 (1977));  impelled by the profit motive,
appellee and other manufacturers and distributors of contraceptives
are likely to be resourceful in devising means of reaching potential
customers.  For example, the Postal Service does not interpret Section
3001(e)(2) to prohibit a "pre-mailing" that, while not advertising
contraceptive products, notifies recipients that such advertisements
are available upon request.

   Commercial speech is protected by the First Amendment principally
because of its value to the hearer, not because of its value to the
party attempting to sell its wares.  See, e.g., Central Hudson Gas &
Electric Corp. v. Public Service Commission, supra, 447 U.S. at 563.
See also First National Bank of Boston v. Bellotti, 435 U.S. 765,
776-786 (1978).  Applying Section 3001(e)(2) in the circumstances of
this case will, therefore, have an impact on the protected rights only
of those who are so uninterested in appellee's products that they have
not sought information about them -- and then only on such a person's
ability to receive that information through the mails in the form of
unsolicited promotional materials.  To whatever degree consumers
generally depend on unsolicited advertisements to guide their
decisions about what to buy (see Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council, 425 U.S. 748, 763-765 (1976)), it
is implausible to suggest that this source of information is of great
significance to people making "private and sensitive" decisions (Carey
v. Population Services International, supra, 431 U.S. at 685) about
contraception.  /7/

   2. The district court acknowledged that Section 3001(e)(2) directly
promotes the government's substantial interests in preventing families
from receiving unwanted advertisements that may be offensive and that
may, against the parents' wishes, fall into the hands of children.
"That we are often 'captives' outside the sanctuary of the home and
subject to objectionable speech * * * does not mean we must be
captives everywhere. * * * The asserted right of a mailer * * * stops
at the outer boundary of every person's domain." Rowan v. Post Office
Department, 397 U.S. 728, 738 (1970).  See also Carey v. Brown, 447
U.S. 455, 471 (1980).  Compare Breard v. City of Alexandria, 341 U.S.
622 (1951), with Martin v. City of Struthers, 319 U.S. 141 (1943).
The interest in not subjecting addressees to offensive material is
particularly strong when the government itself is being made the cause
of the intrusion through a "government-created forum()" (Metromedia,
Inc. v. City of San Diego, supra, slip op. 22 n.19 (plurality
opinion)) -- the Postal Service -- that is normally subject to its
plenary control (see, e.g., United States Postal Service v. Council of
Greenburgh Civic Associations, No. 80-608 (June 25, 1981), slip op.
11-12).  The district court undervalued this interest by explicitly
assuming that, if its approach were followed, addressees would receive
only "tasteful" unsolicited advertisements.  In fact, even if it were
possible to draw a distinction between tasteful and tasteless
advertisements that is not unconstitutionally vague and a "broad
invitation to subjective or discriminatory enforcement" (Grayned v.
City of Rockford, 408 U.S. 104, 113 (1972);  see, e.g., Coates v.
Cincinnati, 402 U.S. 611 (1971)), any such distinction is likely, in
practice, to permit a good deal of offensive material to reach
unwilling recipients.

   Perhaps more important, unsolicited advertisements for
contraceptives can work a "direct interference with the parental
guidance that is especially appropriate in this sensitive are of child
development" (Carey v. Population Services International, supra, 431
U.S. at 708 (Powell, J., concurring)).  In view of the quantity of
unsolicited commercial mail -- the district court itself recognized
that it can reach "avalanche" proportions (App. A, infra, 12a;  see
Rowan v. Post Office Department, supra, 397 U.S. at 736) -- there is a
significant probability that, if advertisements for contraceptives are
left unregulated, some will fall into the hands of children.  Whatever
protection the First Amendment affords to advocates of birth control
as a political or social cause who make such materials available to
children on an unsolicited basis, or to those who give commercial
information to children who seek it (see Carey v. Population Services
International, supra, 431 U.S. at 691-699 (plurality opinion))
unsolicited commercial advertisements are surely entitled to the least
protection.  Moreover, the form, content, and volume of such
advertisements are dictated solely by the sender's commercial interest
in selling his product.  Compare Ohralik v. Ohio State Bar
Association, supra, with In re Primus, supra.  The government has a
substantial interest in aiding parents' efforts to discuss sensitive
and important subjects such as birth control with their children;
here Congress has taken steps to ensure that such discussions, while
not isolated from the wide range of information and communication left
untouched by Section 3001(e)(2), will at least be free from the
intrusion of inappropriate "junk mail" and unwanted, commercially
motivated, solicitations.

   3. The district court invalidated Section 3001(e)(2) because it
believed it had "devised" a less restrictive alternative.  This
alternative essentially consisted of allowing advertisements for
contraceptives to be mailed to homes that did not request them, if the
advertisements were (i) on the inside pages of -- and not graphically
dominant in -- a flyer that advertised other products, or (ii)
enclosed in an envelope that notified the recipient of the contents,
stated that they were unsolicited, and gave the recipient an
opportunity to have his name removed from the sender's mailing list
(App. A, infra, 13a-15a).  See page 7, note 4, supra.  The district
court believed that its approach struck a better balance than the one
adopted by Congress.

   But "(t)he logic of such elaborate less-restrictive-alternative
arguments could raise insuperable barriers to the exercise of
virtually all (regulatory) powers" (United States v. Martinez-Fuerte,
428 U.S. 543, 557 n.12 (1976)) that affect First Amendment rights.
The district court conceded that its alternative would be less
effective in achieving the legitimate objectives of Section
3001(e)(2);  it recognized that the risk of advertisements' falling
into children's hands might even be increased by the requirement of an
explicit notice on the outside of the envelope (see App. A, infra,
18a).  By enacting a simple prohibition on the mailings that created
this problem, Congress "has gone no farther than necessary in seeking
to meet its ends" (Metromedia, Inc. v. City of San Diego, supra, slip
op. 16 (pluraltiy opinion)).

   Moreover, a recipient who objected to contraceptive advertisements
would, under the district court's approach, be forced to remove
himself from the mailer's mailing list entirely, /8/ with the result
that he would be deprived of information about the mailer's other
products -- precisely the sort of deprivation that the constitutional
protection for commercial speech is designed to prevent.  The sole
gain from the district court's approach would be that appellee,
instead of having to use pre-mailings to obtain requests from those
who desire its materials, will be able to use the mails to send
advertisements to addressees who are not sufficiently interested to
request them.  For these reasons, the "less restrictive alternative"
devised by the district court is not an adequate basis for declaring
Section 3001(e)(2) unconstitutional.

                              CONCLUSION

   Probable jurisdiciton should be noted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL MCGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   DAVID A. STRAUSS

      Assistant to the Solicitor General

   LEONARD SCHAITMAN

   JOHN C. HOYLE

      Attorneys

   FEBRUARY 1982

   /1/ The DMM, which is issued pursuant to the Postal Service's broad
power to adopt regulations (39 U.S.C. 401) is incorporated by
reference into 39 C.F.R. Part 111.

   Postal Service regulations provide that an administrative
proceeding to determine whether certain materials are mailable may be
instituted before an administrative law judge or the Postal Service's
Judicial Officer.  See 39 C.F.R. Part 953.  In addition, 18 U.S.C.
1461 makes it a crime "knowingly (to) use() the mails for the mailing,
carriage in the mails, or delivery of anything declared by * * *
section 3001(e) of title 39 to be nonmailable * * *."

   /2/ Examples of these materials are reproduced in Appendix C to the
complaint.

   /3/ In Central Hudson, the Court identified a "four-part analysis"
that has been applied to restrictions on commercial speech (447 U.S.
at 566;  see App. A, infra, 9a-10a):

         At the outset, we must determine whether the expression is
      protected by the First Amendment.  For commercial speech to come
      within that provision, it at least must concern lawful activity
      and not be misleading.  Next, we ask whether the asserted
      governmental interest is substantial.  If both inquiries yield
      positive answers, we must determine whether the regulation
      directly advances the governmental interest asserted, and
      whether it is not more extensive than is necessary to serve that
      interest.

   /4/ Section 3008(a) of Title 39 provides:

         Whoever for himself, or by his agents or assigns, mails or
      causes to be mailed any pandering advertisement which offers for
      sale matter which the addressee in his sole discretion believes
      to be erotically arousing or sexually provocative shall be
      subject to an order of the Postal Service to refrain from
      further mailings of such materials to the designated addresses
      thereof.

   The constitutionality of this statute was upheld in Rowan v. Post
Office Department, 397 U.S. 728 (1970).  The addressee has
"unreviewable discretion * * * to determine whether or not the
advertisement was 'erotically arousing or sexually provocative'" (id.
at 739 n.6), and his certification to that effect is final;  there is
no "power to make any discretionary evaluation of the material in
a(ny) governmental official" (id. at 737).  The district court appears
not to have recognized, however, that the plain language of the
statute, and the implementing regulations (DMM Section 123.611),
require the addressee to certify that the material is erotically
arousing or sexually provocative, and some addressees may be unwilling
to make such a representation about advertisements of the sort in
issue here.

   /5/ In Associated Students v. Attorney General, 368 F. Supp. 11
(C.D. Cal. 1973), a three-judge court held that this prohibition on
the mailing of "advertisements" could not constitutionally be
"expand(ed) * * * beyond the() commercial sense" of the term (id. at
24) and had to be interpreted in a way that "recognize(d) the inherent
difference between commercial solicitation on one hand and informative
editorializing on the other" (id. at 23).  The Postal Service accepts
this holding, and it issued DMM Section 123.434 (see page 3, supra) to
make this interpretation clear.

   /6/ The district court found that all the materials involved in
this case are commercial speech.  The drugstore flyers containing
advertisements for contraceptives fall within the core definition of
commercial speech -- "'speech proposing a commercial transaction'"
(Centeral Hudson Gas & Electric Corp. v. Public Service Commission,
supra, 447 U.S. at 562, quoting Ohralik v. Ohio State Bar Association,
supra, 436 U.S. at 456;  see Pittsburgh Press Co. v. Human Relations
Commission, 413 U.S. 376, 385 (1973);  Valentine v. Chrestensen, 316
U.S. 52 (1942)).  The other promotional materials were also
"commercial activitity" (Ohralik v. Ohio State Bar Association, supra,
436 U.S. at 456), and the fact that the took the form of "advertising
that link(ed) a product to a * * * debate" over the various methods of
contraception does not entitle them to the "broad constitutional
protection" afforded noncommercial speech (Central Hudson Gas &
Electric Corp. v. Public Service Commission, supra, 447 U.S. at 563
n.5).  See also Metromedia, Inc. v. City of San Diego, supra, slip op.
19 (Brennan, J., concurring in the judgment) ("I have no doubt that
those who seek to convey commercial messages will engage in the most
imaginative of exercises to place themselves within the safe haven of
noncommercial speech, while at the same time conveying their
commercial message.").

   /7/ Thus, unlike other restrictions on commercial speech that this
Court has invalidated, Section 3001(e)(2) is not a "covert attempt by
the State to manipulate the choices of its citizens * * * by depriving
the public of the information needed to make a free choice" (Central
Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447
U.S. at 574-575 (Blackmun, J., concurring);  see, e.g., Linmark
Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 94 (1977);
Virginia State Board of Pharmacy v. Virginia Citizens' Consumer
Council, 425 U.S. 748, 770 (1976)).  The narrow restriction imposed by
Section 3001(e)(2) is, in fact, very poorly designed to influence
behavior by reducing the free flow of information;  it permits a wide
variety of commercial and noncommercial information about
contraception to reach consumers, and the relatively small amount of
information it restricts is among that least likely to play a role in
the important decisions consumers make on this subject.

   /8/ Even if the addressee could specify that he wished not to
receive contraceptive advertisements but to receive other mailings, a
mailer might well find it uneconomical to maintain two mailing lists
or to print two sets of flyers -- one with and one without
advertisements for contraceptives -- so the practical effect of the
notification would likely be to cut off all mailings to the objecting
addressee.

   Appendix Omitted