Earl Warren: Number 183 Eugene E. Maynard, Petitioner, versus Durham & Southern Railway Company. Mr. Blanchard.
Charles F. Blanchard: Mr. Chief Justice, may it please the Court. This action was brought in the North Carolina State Court by the railroad employee, Maynard against his employer, the Durham Southern Railway Company under the provisions of the Federal Employer's Liability Act, growing out of injuries which he received on August 22nd, 1955. The case came on for trail in the Wake County Superior Court in April 1959, the Superior Court being North Carolina's (Inaudible) highest court. Railroad's motion of a nonsuit was granted at the end of all of the evidence, without the juries having the opportunity of passing on any of the issues. The Supreme Court on appeal, affirmed the Superior Court with one justice dissenting. Thereafter this -- the United States Supreme Court granted the writ on 27 June, 1960. The petitioner was seriously injured while assisting in loading of one of the railroad's motor trucks. In bar a petitioner's rights, the railroad pleaded and offered evidence of a release signed by the petitioner. Plaintiff or petitioner attacks the validity and did attack the validity below of the purported release on two grounds, one that it was unsupported by any consideration whatsoever and its execution was procured by fraud, misrepresentation and undue influence. Now, to please Court, since the railroad conceded in open court in the North Carolina Supreme Court that -- probably the evidence offered by the petitioner, was sufficient to take the case to the jury on the issue of negligence, it would appear unnecessary for me to take the Court's time in reciting the minute details of how the plaintiff's serious injuries occurred during the loading of the truck. With that background, let us consider the evidence most favorable to the petitioner in respect to the execution of the release, itself. Following his injury, the petitioner was off his job for approximate two weeks and was required to see several doctors, before he was able to return to work around the middle of September 1955. Thereafter, on Saturday, September 17, 1955, petitioner went to the office of the defendant railroad's general manager to get his pay check. The petitioner produced evidence, that on this date the defendant railroad owed him a $144.60 for back wages. There were two men in the office, the general manager these being the petitioner and the general manager and no others. When the petitioner requested his pay check, the general manager took a piece of paper from the desk drawer and keeping it partially covered with his hand, pushed it across the desk for petitioner and told petitioner to sign. He didn't take his hand off to the paper testified the petitioner, I remember very distinctly that Mr. McAllister kept his hand on it, he further testified. He also testified that he was not even given a chance to read this paper. Petitioner thought that he was signing for his pay check and so he testified and he testified he ordinarily received his pay check on the Saturday and this being -- this was also Saturday. He would not have signed the paper had he known it was a release and that he had never been paid anything -- he had never been paid anything for his injuries we -- when he signed what he thought was a receipt. Now, the petitioner urges that under this evidence, there were two jury questions, it's properly two jury questions, one, the question of fraud whether it was procured by fraud and second was there complete lack of consideration as alleged. In doing so, making these contentions, the petitioner does not rely only on evidentiary or factual propositions. We feel that the Supreme Court of North Carolina simply misinterpreted or ignored the vast federal questions and authorities on the subject of releases. First, as to fraud, Dice versus Akron, Canton & Youngstown Railroad are considered at this Court in 342 U.S. 1952, seems to be and appears to be the leading case in the last time this Court has considered the question of releases and the -- and the fraud in the procurement of releases under the Federal Employers Liability Act. There, the petitioner alleged that he was owed $900 by the railroad and he went to get his pay check and the railroad told him, he was merely signing a receipt, turned out to be a release from liability for personal injuries.
Charles E. Whittaker: That's when he discovered this fraud, didn't t he?
Charles F. Blanchard: Yes Your Honor, the Court did say that there -- that there was deliberate false statements made to deceive and which did deceive in that case. Here, in the principal case, we have false and deceptive silence made to deceive and which did deceive. We have a situation where the General Manager knew the plaintiff had been hurt, he'd come for his pay check, he kept the so-called release partially covered with his hand during the interview in which they were alone and it knows --
William J. Brennan, Jr.: Well, what -- what is your complaint that -- the copy that the North Carolina Supreme Court applied the wrong standard? Isn't this on determination that whatever the appropriate standard is, the proofs were not sufficient to raise the jury question?
Charles F. Blanchard: Your Honor, we feel that it's more than that, the -- we feel that the North Carolina court misinterpreted all of the federal authority apparently and while they didn't specifically said, apparently, they felt that the federal authorities require affirmative statements -- false statements or require some deliberate act of fraud and since there were no affirmative misstatements in this case, we feel that they let it go off on that and that tenure, but missing --
William J. Brennan, Jr.: (Voice Overlap) in other words that there was deficiency in the quantum of proof, isn't that the basis on which they turned it?
Charles F. Blanchard: Your Honor, we feel it's more than that. We feel that they ignored the federal authorities. We'd say that there does not have to be affirmative fraud. There can be fraud by silence and by actions, rather than affirmative, deliberate fraud and in that respect we say, they ignored the federal authorities. They did not consider for instance, the Purvis versus Pennsylvania case, decided by the Third Circuit, the same year as Dice, but following Dice and it is based on Dice. We feel in that case the further -- the Purvis case the facts are as close to being on all force as this case as any case can be. There, there was no deliberate, no affirmative misstatement of facts, it was simply the actions and the silence to the railroad which --
Potter Stewart: Now, it's on the fraud question, how about on the one of consideration?
Charles F. Blanchard: Now --
Potter Stewart: I mean it just --
Charles F. Blanchard: Yes.
Potter Stewart: -- is your -- isn't your point really what Justice Brennan has suggested by his question that you -- you put a little other way, you say they had ignored the federal authorities, but the authorities upon which you rely I gather, are those cases which upheld that it -- that under the facts of those cases, a jury question was presented. Isn't all you're asking here for a right to go to jury?
Charles F. Blanchard: Yes, Your Honor. May I ask --
Potter Stewart: On -- on both issues?
Charles F. Blanchard: Both issues --
Potter Stewart: On the issue of fraud or the issue of one of lack of --
Charles F. Blanchard: Yes, Your Honor.
Potter Stewart: -- federal of consideration by that way, lack of consideration.
Charles F. Blanchard: Now, as -- as to lack of consideration, plaintiff clearly gives the evidence that he was owing at the time of the execution of this release, they owed him a $144.60. The North Carolina Supreme Court never treated total lack of consideration in its opinion. On the inadequacy of consideration did they discuss in their opinion, which is of course in the record. They said, near inadequacy or consideration alone, is insufficient and cited only to an immediate state court cases. They cited the Nevada's case and the William's case and intermediate cases in Illinois, Missouri as authority for that holding and at no time did they consider the complete lack of consideration and in our brief, we have the Burns case coming out of the Eight Circuit and the Hogue case from a certain District Court which reasonably and logically, we say require that a release be supported by some consideration and when its not supported by any consideration, its nullity. Therefore, --
William J. Brennan, Jr.: (Voice Overlap) the $144.60 pay, wasn't that it?
Charles F. Blanchard: Yes, Your Honor.
William J. Brennan, Jr.: It's your point that the only evidence -- there was at least a jury question although that did -- was the consideration supporting the release or not, is that it?
Charles F. Blanchard: Yes, Your Honor.
William J. Brennan, Jr.: Because apparently, the Court held that there was no evidence in the record to support the contention that he was entitled for the $144.60 as wages. And your suggestion is there was some evidence upon of which a jury can make that finding and thus find that there was -- a release was not supported by consideration, is that it?
Charles F. Blanchard: Yes, Your Honor. We feel that North Carolina has just decided the federal question of substance not in accord with decisions of this and other federal courts and that is not merely an evidentiary or factual proposition before this Court in this case. And that if the case is permitted to stay, it will become authority for other erroneous state decisions under the Federal Employers Liability Act.
Potter Stewart: Did Judge Parker write a -- he dissented, didn't he?
Charles F. Blanchard: He dissented, but he did not write a (Voice Overlap) dissenting opinion.
Potter Stewart: -- notice anything.
William J. Brennan, Jr.: Now, on this last point Mr. Blanchard, I notice at page 31, this is not a complete transcript, isn't it, it's just a narrative point of transcript. Is the evidence that you suggest presented the jury question that which here under redirect examination at page 31, “The $144.60 that I receive there from Mr. McAllister there was not for injuries that was my pay check.”
Charles F. Blanchard: That's one of the places in record, which we complain of and there are two or three others, Your Honor. One on page 21, “I thought I had to sign for my pay check, at that time the railroad owed me $144.65 for labor --
William J. Brennan, Jr.: What page is that?
Charles F. Blanchard: 21.
William J. Brennan, Jr.: Thank you.
Charles F. Blanchard: I never received anything from the railroad as a result from the injury which I have described here today and there -- there's I think, on page 26 of the transcript a similar statement.
Earl Warren: Mr. Nye.
Charles B. Nye: Mr. Chief Justice. I like to say first, there is nothing in the record to suggest that North Carolina Supreme Court did not rule in accordance with the applicable federal authorities. It was stipulated in the trial court and the record will show that the case was to be decided by federal law. The Supreme Court of North Carolina recognized that the case should be decided by federal law. It recognized the problem before it, because it says, “The only question to be determined is whether or not the issue fraud and lack of consideration should go to jury.” So what I am here doing now, is arguing a nonsuit motion, because there is no law in conflict. There is no law that I know of that the petitioner cited that I am in fundamental disagreement with. Now, he raised two questions in his petition. He cited the same two questions in his brief, but he did not as such, discussed the questions. He raised five points and discussed five points. I would like to mark -- remark briefly on each of the five points. His first point, was federal not state law prevails is conceded here, is conceded in the trial court, it was conceded in the Supreme of North Carolina. His second point was defendant concedes evidence sufficient to take the case to the jury had the plaintiff not signed the so-called release. In the Supreme Court of North Carolina, my statement was the evidence was properly sufficient to go to the jury on negligence, had not the release existed, but if you will read this evidence, there is not enough evidence of negligence. There is not enough evidence of injury to support a jury verdict for negligence and damages, but that question was not before the Supreme Court, it is not before this Court, but it does have some bearing on the entire picture of this action.
William J. Brennan, Jr.: But -- but that's question is not before us (Voice Overlap) --
Charles B. Nye: No, sir. That was raised to support in the petitioner's brief. Petitioner's point 3 is this, “Only preponderance or greater weight of evidence is required to set a signed release." The Supreme Court of North Carolina stated that and recognized the federal principle. It was conceded in my brief that that is the law. Petitioner's point 4, so-called release unsupported by any consideration and therefore void. I'd like to say that, in -- in that connection this. Now, we can follow the petitioner's logic to this extent. I can file an action for wrongful death and bring the deceased in the Court to testify he is dead we've got a conflict of evidence and it has to go to jury whether or not he's dead. Now, that if you call cow mule, that cow is not a mule. The -- the plaintiff testified at various times about -- dealt with so much for labor, dealt with so much for wages, but on page 26, now, here is where we come clear, the judge can't close his eyes and recognize the truth as it comes out. I did not know that it was standing policy to Durham & Southern Railway Company that when an employee is injured on the railroad that it would pay the injured employee only upon the signing a release, that's important because the plaintiff's own witness, his labor supervisor stated that it had been a policy for forty years, this is the plaintiffs evidence. Now I thought --
Earl Warren: He stated what --
Charles B. Nye: -- they were --
Earl Warren: -- would you -- would you mind making that last statement again, I didn't quite understand it.
Charles B. Nye: The plaintiff testified and then he put on his labor supervisor as his own witness. On cross-examination Mr. Bailey testified that for forty years, the policy of the railroad had been that if when an employee was injured and was off from work when came back regardless of responsibility, they paid him his back wages while he was out for the consideration to sign a release, that's the plaintiff's evidence.
Earl Warren: The supervisor was employed by the company.
Charles B. Nye: Yes, sir, but he was a -- a labor representative, a union labor representative.
Earl Warren: Oh, I see.
Charles B. Nye: And he testified and my position is to be sure that the employees get a fair break. Now, this is what the petitioner testifies about those wages. I thought they were paying while you were out. I mean I hadn't been discharged from the railroad. I just wasn't able to work. I have never been discharged. I expected wages when I was not working because I just figured it was mine. I have never been discharged form the railroad and was just off because I was hurt. Now, is he due those wages because of labor? Now is he playing words, the facts are he was out four or five days. The -- the railroad gave him the equivalent salary and he signed the release. Now, that's your consideration, now, when one reads this record, it is inconceivable to me that you could come up with a theory that that was due for labor, he referred to it as labor, he referred to this wages, But there again, is cow a mule because you refer it back and forth, the truth came out of this.
Earl Warren: Well, did the -- did the supervisor say that this man knew of that policy?
Charles B. Nye: No sir, he did not.
Earl Warren: He did not.
Charles B. Nye: No, sir.
Earl Warren: Well --
Charles B. Nye: The man had worked for the sea board for nine years, Your Honor before he came on the Government and he was an apprentice foreman. He was educated, he was -- went through 10th grade and it -- in reference to the check, he testified that it was a different place from where I usually sign for my check, that's his regular word. He testified that he usually didn't sign things without looking at them, but just on the question of consideration, it is my opinion that one can read the entire record and state that he'd labored for these wages. It was equivalent of -- of what he would receive had he worked.
Earl Warren: There was a rather (Inaudible), was that for a given number of days?
Charles B. Nye: Your Honor, he was out --
Earl Warren: (Inaudible) prevented that --
Charles B. Nye: -- he stopped -- yes, sir.
Earl Warren: It was for --
Charles B. Nye: Yes sir.
Earl Warren: -- an equivalent of a given number of days.
Charles B. Nye: Now, just as the side remark, the petitioner in his brief stated that Saturday was a normal work day. The only evidence is that said, it's not a normal work day. That's -- that's what the record says.
William J. Brennan, Jr.: Well, your point I gather is this, even -- for its time off he would not have been paid any wages compensation.
Charles B. Nye: Yes, sir and that's what (Voice Overlap) --
William J. Brennan, Jr.: But that --
Charles B. Nye: -- the Supreme Court of North Carolina.
William J. Brennan, Jr.: -- but that -- in order to give him that -- that he would execute a release, the company was willing to pay him the equivalent of what would have been his wages if he had worked.
Charles B. Nye: Yes, sir. Now, I think it's very important just to get --
William J. Brennan, Jr.: And you're pointing this out as an effect that admission of his is that is --
Charles B. Nye: What -- he act -- cannot read otherwise. He -- he says, “I didn't know that it was policy.” But he says, “I didn't work, I just felt was doing --
William J. Brennan, Jr.: Well, he also says that -- still that I -- I thought they were paying you while you were out. In other words, he's taking the position that -- his understanding was that even though he was off hurt, he'd be compensated for this time -- at the wages he would have received, had been working here?
Charles B. Nye: That is right. But his own witness, the next witness testified as to 40-year policy, that when the railroad's witness.
Earl Warren: But his own witness didn't testify that he knew the policy, isn't there a difference?
Charles B. Nye: This is based on fraud, Your Honor, not -- not mistake. Now, you paid alleged the state. Instead of the vicious (Inaudible) they did, that we might not be here, but they didn't allege mistake. They didn't offer any evidence concerning mistake. That brings us up to the next point.
William J. Brennan, Jr.: But we were not on the fraud issue in the colloquy you and I have had, we're talking only that federal consideration, lack of consideration.
Charles B. Nye: Well, the question -- I don't think --
William J. Brennan, Jr.: Well, aren't the questions here, one is fraud and the other is lack of consideration.
Charles B. Nye: The other one is no consideration.
William J. Brennan, Jr.: No consideration, alright.
Charles B. Nye: Which is a big difference in the -- in the period of the State --
William J. Brennan, Jr.: Yes, but they're separate issues as I understand.
Charles B. Nye: Yes, sir.
William J. Brennan, Jr.: And (Voice Overlap) --
Charles B. Nye: They tried to set aside.
William J. Brennan, Jr.: And either should have gone to the jury, then the Supreme Court of North Carolina was in error was it?
Charles B. Nye: That's right, sir. Well, the first point I show that there are about a little bit of consideration, by then very small related portion on that, they said no consideration. The next part, execution of the so-called release procured by fraud, misrepresentations and undue influence on the part of the defendant's agents, required submission of the jury and here's your evidence in that respect, page 25 of the record. Now, there were two estimates executed, he was hurt on August 27th, so he says then on August 23rd, there was accident report signed by the petitioner and he was referring on page 25 the accident report. It states on here that I would probably have no disability, that none were expected. I didn't expect much disability at that time. I didn't know how bad my disability was at that time. I didn't expect any permanent disability. I just thought it was a mild back sprain and that I would get over in a few weeks or a month. When, I signed it with the answer to the problem of disability, "I mean it at that time," that was just a few days before the release. At the time I filled out that accident report, I had no idea I would ever get the lawsuit back. Now, just a few days later, he signs a release, an evidence concerning that. Now -- now, the evidence shows that this accident report which was signed in Apex, North Carolina where he says, no disability, everything was held properly, were set to McAllister in Durham, North Carolina, a few days before the petitioner went to Durham and signed this release. The evidence is that McAllister knew nothing about the accident, nothing about the facts, except what was set forth in that accident report signed by Maynard which he says, “When I signed it, I didn't think I'll be hurting.” So, on page 31, we were talking about the day he signed the release, I do not know what I -- I did not know what I'm signing that day. I did not have any curiosity about it. I thought I was just signing for my check. I just assumed that's what I was doing. It was at a different place from where I usually signed for my check. I haven't -- then he goes back to personnel injury report. I admit signing the personnel injury report, but I don't remember when or what time to sign, I couldn't say. If I knew what the personnel injury report was at the time signed it, but I'd usually don't sign papers not knowing what they are. Now, we get back to the release, this fellow, they say was used duress and fraud. Mr. McAllister didn't tell me anything about it, he didn't tell me a story about it, all he did was ask me how or was on that particular day. I don't know how -- I didn't know how long in the future, I still thought it was temporary. What was there from Mr. McAllister to defraud him about? Mr. McAllister didn't know the things that what he put on the -- on the accident report. And -- and certainly, if the plaintiff himself thought it was temporary, there was nothing for under defraud and there was nothing for McAllister to make a -- misrepresentation about at that time. That could have been a mutual mistake. We're not here on mutual mistake. At that time I didn't know what it was -- that I was signing or wouldn't sign it, he did testify that. At that time Mr. McAllister didn't know what disability might be in the future from my injury. He didn't make any false misrepresentation. The only thing he did do there, he just didn't explain the paper to me. He didn't make any deceitful suggestions to me. He didn't make any fraudulent suggestions to me. He just put the paper down there and I signed it and got my check and left. I didn't think I was going to be pertinent in the future. What was there to misrepresent this man who was an apprentice foreman, who would had been on the railroad for 9 or 10 or 11 years, who the record shows, talked to his union representative before he filed the accident report and knew all their in his negotiations went through his labor representatives. The trial judge heard the evidence, he nonsuited. The Supreme Court of North Carolina fully and fairly recognized each and every question presented to it. And I state that there was only one question before this Court. And my question was this, the question for determination is whether or not, the plaintiff's evidence, in supporting his -- allegations that the release was without consideration and rather procured by means of fraud and duress was sufficient the warrant its submission to the jury. I quoted the only question before this Court from page 55 of the record which is a quote from the decision of the North Carolina Supreme Court. Now, what the Supreme Court, it recognized both of those. There is no evidence in the record before us to support the contention of plaintiff that he was entitled as a matter of right to the $144.60 as wages for the time he did not work because of his alleged injuries. Therefore, unless the release was procured by fraud and duress as alleged in plaintiff's reply to the appropriate matter pleading in defendants answer, the judgement of nonsuit entered in the court below must be upheld. As the Supreme Court of North Carolina construes the evidence, he does not show any fraud or duress on the part of defendant or its agency. But on the contrary, his own testimony negates his allegations in that respect. In our opinion the plaintiff and defendant entered into the release in good faith, neither party at time of the execution of the release, had any idea to the plaintiff has sustained an injury that might or would develop into any permanent disability. There are may have been mutual mistake on the part of plaintiff and the defendant in this respect as was alleged and relied on in Cohen versus Pennsylvania Railroad, supra. However, in instant case, the plaintiff's cause of action is not about a mere mistake, but on fraud and duress. In the light of the record before us in the applicable decisions bearing thereon, we are constrained to hold that the ruling of the court below must be upheld. So that's the reason I say, “We're here arguing a motion of nonsuit.” The record gets smaller and smaller, as it comes up in the trial court. But the truth came out at the trial we call the cow, mule, but it was still a cow. He referred it as labor, he referred to his wages, but the record and the plaintiff's evidence shows that it was a small consideration, it was a consideration. They have not based his answer on -- insignificant consideration or mutual mistake. They based their action on a very vicious reply alleging all types of fraud and duress were at the time and I repeat, there was nothing for McAllister in this representation.
Earl Warren: Mr. Blanchard, you may continue.
Charles F. Blanchard: In respect to $144.60 which the petitioner states was due him, the defendant railroad, never offered any evidence to the effect that petitioner was not entitled to the $144.60. There our main witness, Mr. McAllister, never testified that the man was not due $144.60 for labor. All the General Manager testified to about this, was that he told the petitioner, “It would be necessary for him sign a release before settling up.” So, you --
William O. Douglas: -- where are you reading?
Charles F. Blanchard: Record 45, Your Honor. So you would think that if a -- they -- are we really going to make a lot about this $144.60 not being used to the petitioner, they would put on some evidence themselves. Now, in respect to our own witness, what he had to say about the policy of the railroad. I want to say first this that there is no evidence that the petitioner ever knew about any so-called policy or that this witness ever informed the petitioner about this so-called policy. All that that witness which has been referred to and testified to him, was that -- was on page 34 as follows. I know that the policy of the company that -- was that, when anyone had been off and had come back to work, they did not get their wages unless they sign the release. I knew that -- I knew that was the policy of the Durham & Southern Railway Company, ever since I have known anything about it. That is, you don't get your wages when you have been off from work, unless you sign a release, didn't say anything about injuries there, but then it goes down to next paragraph as so, likewise if a man is injured he is called upon to sign a release when he gets his money. Never -- this witness which they tried to establish the policy of that, never said that this release is required. He uses the word, is called upon. That I think is synonymous with asked to sign a release, but even that witness which they may so much to do about, never said that it was necessary to sign a release before getting his money. And finally, we say that the North Carolina Supreme Court never considered the subject of lack of consideration -- of -- of total lack of consideration. No way in the decision can I see that -- that point was even considered by the court and we say that there in particular, did they ignore the federal authorities in never discussing the complete lack of consideration. They did discuss inadequacy of consideration at some -- at some length and cited particularly, the (Inaudible) and Williams cases, the two state intermediate cases, which dealt entirely within adequacy of consideration.
Hugo L. Black: May I ask you a question about your pleadings, I don't quite understand. The defendants pleaded the release, that's an amendment under your procedures. You filed something which you called a reply, that's what you only call a replication? You call it a replication in North Carolina?
Charles F. Blanchard: Yes, Your Honor.
Hugo L. Black: In that -- in paragraph 4 of your replication, you said that the amount paid was not far a release for damages but was for wages due. What followed there -- what pleading followed that in the court?
Charles F. Blanchard: Your Honor --
Hugo L. Black: -- with reference to that point?
Charles F. Blanchard: I -- I do not believe further pleadings were filed following a reply, I'm sure they were not.
Hugo L. Black: This raises the issue as to whether or not that was for payment, for the injury or payment for wages that is this replication for?
Charles F. Blanchard: That's our opinion, yes, sir.
Hugo L. Black: And put -- well that's what it says, that's what you charge. That -- did that become an issue or was it necessary for them on the old pleadings to deny that, if they wanted to deny it, I don't know.
Charles F. Blanchard: I think, Your Honor, it's deemed denied.
Hugo L. Black: It's deemed denied by being (Inaudible)
Charles F. Blanchard: Yes.
Hugo L. Black: Then did they offer any evidence on that point as to the wages that was due him, was there any offer?
Charles F. Blanchard: Your Honor, we --
Hugo L. Black: He pointed to some which he thought raised that point by (Voice Overlap) --
Charles F. Blanchard: He pointed to our own witnesses on cross-examination and is called by name of Bailey, but they themselves, never offered any evidence that the wages were not due to this petitioner.
Hugo L. Black: What he referred to and what you have referred to is the total relevant evidence on that point?
Charles F. Blanchard: In -- in my opinion, yes, Justice Black.
Charles E. Whittaker: As I understand there was (Inaudible) there's no dispute about it as having been paid for all wages up to the time he got (Inaudible). The issue is that whether or not, he is entitled to the wages from the time he was injured, he was trying to sign this release, is that it?
Charles F. Blanchard: Yes, sir.
Hugo L. Black: But is there any evidence beside here that much you had with reference to what was the policy of the company when men were off injured to whether they could pay them.
Charles F. Blanchard: Justice Black the only thing about that was the evidence of - of dues from my own witness Bailey and they never offered any evidence about the policy of the railroad, but I used Bailey to show what the policy was about a man when he was off, but they did not specify about a man who was injured. Now, being off, that could apply to somebody who just quit or decided did -- did not want to work for two or three weeks, but that was the only thing -- Bailey was the only witness to discuss that point and he was the petitioner's witness.
Hugo L. Black: He was -- you mean (Voice Overlap) --
Charles F. Blanchard: Well he was petitioner's witness and they took him on cross-examination to establish what the so-called policy was, but never offered any evidence themselves on that point.


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