1 103 S. Ct. 2875 (1983).

2 39 U.S.C. § 3001(e) provides:

1. (1)

   (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. (2)

   (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—

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.

39 U.S.C. § 3001(e) (1982) (emphasis added).

3 Youngs Drug Prods. Corp., 103 S. Ct. at 2878.

4 Youngs Drug Prods. Corp., 526 F. Supp. 823, 825 (D.D.C. 1981).

5 “A reasonable reading of [the Postal Service's response to Youngs] is that it addressed all three types of mailings … stating the Service's position that the mailing on an unsolicited basis of both types of flyers, as well as promotional pamphlets, would violate § 3001(e).” Id.

6 The Government brought a direct appeal to the Supreme Court pursuant to 28 U.S.C. § 1252. Youngs Drug Prods. Corp., 103 S. Ct. at 2879.

7 Youngs Drug Prods. Corp., 526 F. Supp. at 825.

8 Id. at 828.

9 Id. at 826-27. The term “commercial speech” describes a profit-motivated advertisement for a product or service. The core notion of commercial speech has been described as “speech which does no more than propose a commercial transaction.” Pittsburgh Press Co. v. Pittsburgh Comm'n of Human Relations, 413 U.S. 376, 385 (1973). Judge Penn noted that “in this type of case, the critical distinction between pure and commercial speech is whether the speaker has a commercial interest … .” Youngs Drug Prods. Corp., 526 F. Supp. at 827 n.5. For a discussion of commercial speech and first amendment, see infra notes 71-93 and accompanying text.

10 Judge Penn restated this interest as the “protection of the privacy of individuals in their homes from even receiving one mailing that, because of its sexual subject matter, is likely to offend some sensitive addressees.” Youngs Drug Prods. Corp., 526 F. Supp. at 828.

11 447 U.S. 557 (1980).

12 Id. at 566.

13 Youngs Drug Prods. Corp., 526 F. Supp. at 827. Determination of first amendment protection is only a threshold question in assessing the validity of restrictions on commercial speech.

14 Id. at 828.

15 Id.

16 Id. at 829 (quoting Central Hudson Gas, 447 U.S. at 572).

17 Id. at 830 (emphasis in original).

18 Id. at 829.

19 Id.

20 Id. The court noted, however, that where advertisements of contraceptives dominate a drugstore circular, the court would impose restrictions such as those placed on Youngs's flyers and informational pamphlets. Id. at 830 n.10. See infra notes 21 & 22.

21 Youngs Drug Prods. Corp., 526 F. Supp. at 830.

22 Id. The court did not impose the envelope, notice and warning requirement on the drugstore circular because “the circular does not present a serious threat … since the advertisement for contraceptives in such flyers will likely be … buried in the middle of the page of the flyer.” Id.

23 Justice Marshall delivered the opinion of the Court, in which Chief Justice Burger, and Justices White, Blackmun, and Powell joined. Justice Rehnquist filed a concurring opinion in which Justice O'Connor joined. Justice Stevens concurred separately. Justice Brennan did not take part in the decision.

24 Brief for Appellants at 13-39.

25 Youngs Drug Prods. Corp., 103 S. Ct. at 2883 (citing Brief for Appellants at 24-33).

26 Brief for Appellants at 30.

27 Brief for Appellee at 14-25.

28 Id. at 31-36.

29 Id. at 36-39.

30 Youngs Drug Prods. Corp., 103 S. Ct. at 2880.

31 Id. at 2880 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 265-266 (1964); Associated Students v. Attorney Gen., 368 F. Supp. 11, 24 (CD. Cal. 1973); Bigelow v. Virginia, 421 U.S. 809, 818 (1975); Ginzburg v. United States, 383 U.S. 463, 474 (1966); Thornhill v. Alabama, 310 U.S. 88 (1940)). The Court cautioned, however, that none of these factors alone would be sufficient to categorize the informational pamphlets as either commercial or noncommercial.

32 See Youngs Drug Prods. Corp., 103 S. Ct. at 2878 n.4. The pamphlet entitled “Condoms and Human Sexuality” explicitly promotes Trojan-brand condoms manufactured by Youngs. The pamphlet, “Plain Talk about Venereal Disease,” on the other hand, refers generally to condoms, but not specifically to condoms manufactured by Youngs. Youngs is identified, however, as the distributor of Trojan-brand condoms on the last page of both pamphlets.

33 Youngs Drug Prods. Corp., 103 S. Ct. at 2881.

34 Id. at 2881 (citing Carey v. Population Serv. Int'l, 431 U.S. 678, 700-01 (1977)). In Griswold v. Connecticut, 381 U.S. 479 (1965), the Court held that an individual has a constitutional right to unfettered decision-making on matters regarding contraception. For a discussion of contraception and the right of privacy, see text at notes 93-103.

35 Youngs Drug Prods. Corp., 103 S. Ct. at 2885.

36 Id. at 2883.

37 Id. (citing Carey, 431 U.S. at 701).

38 Id. at 2884 (citing Butler v. Michigan, 352 U.S. 380, 383 (1957)).

39 Id. at 2883.

40 Id. at 2884.

41 See supra text at note 12.

42 “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, 447 U.S. at 563 (1980), quoted in Youngs Drug Prods. Corp., 103 S. Ct. at 2881. This approach reflects the use of special treatment categories. See infra note 92; cf. Farber, , Commercial Speech and First Amendment Theory, 74 Nw. U.L. Rev. 372, 386-90 (1979)Google Scholar. 43 “[W]e must be wary of unnecessary insistence on rigid classifications, lest speech entitled to ‘constitutional protection be inadvertently suppressed.'” Youngs Drug Prods. Corp., 103 S. Ct. at 2888 (Stevens, J., concurring) (quoting Central Hudson Gas, 447 U.S. at 579 (1980) (Stevens, J., concurring)).

44 Youngs Drug Prods. Corp., 103 S. Ct. at 2888 (Stevens, J., concurring). Justice Stevens's opinion is reminiscent of Justice Powell's opinion in Central Hudson Gas: “ the failure to distinguish between commercial and noncommercial speech ‘could invite dilution, simply by a leveling process, of the force of the [First] Amendment's guarantee to the latter kind of speech.’ “ Central Hudson Gas, 447 U.S. at 563 n.5 (citing Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978)); accord Metromedia Inc. v. San Diego, 453 U.S. 490, 563 (1980) (governmental officials should not be “put in the position in the first instance of deciding whether the proposed speech is commercial or noncommercial“).

45 Youngs Drug Prods. Corp., 103 S. Ct. at 2886 (Rehnquist & O'Connor, JJ., concurring).

46 Id. at 2887.

47 Id. at 2889 (Stevens, J., concurring).

48 They stated:

Id. at 2887 (Rehnquist & O'Connor, JJ., concurring) (citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 770 (1976)).

49 The history of § 3001(e)(2) may be noted through 18 U.S.C. § 1461, which now imposes criminal sanctions for violations of § 3001(e)(2). 18 U.S.C. § 1461, entitled “Mailing Obscene or Crime-Inciting Matter,” provides in part:

18 U.S.C. § 1461 (1984).

Referring to § 3001(e), § 1461 continues,

Id.

For a detailed history of § 1461, see Manual Enters. Inc. v. Day, 370 U.S. 478, 500-11 (1962) (citing Brief for the Appellees at 21-22, Manual Enters. Inc.).

50 Act of March 3, 1873, ch. 258, 17 Stat. 598.

51 Id. at ch. 258, § 2, 17 Stat. 598 (1873). For a comprehensive discussion of censorship by the Post Office and the Bureau of Customs, see J. Paul & M. Schwartz, Federal Censorship: Obscenity In The Mail (1961); see also Paul, , The Post Office and Nonmailability of Obscenity: An Historical Note, 8 Ucla L. Rev. 44-57 (1961)Google Scholar.

52 Poe v. Ullman, 367 U.S. 497, 520 n.10 (Douglas, J., dissenting)(quoting H. Brown & M. Leech, Anthony Comstock, Roundsman of The Lord 265-66 (1927)).

Comstock was not an elected official. He was a special agent of the Post Office (1873-1915) and founder and Secretary for the Society for the Suppression of Vice in New York (1873- 1915). His books include Fraud Exposed (1880), Traps For The Young (1883), and Morals Versus Art (1886).

53 The changes in the Comstock Act through 1970 are codified in Act of Mar. 4, 1909, ch. 321, 35 Stat. 1128; Act of Mar. 4, 1911, ch. 241, 36 Stat. 1339; Act of June 25, 1948, ch. 645, 62 Stat. 768; Act of June 28, 1955, ch. 190, 69 Stat. 183; Act of Aug. 28, 1958, Pub. L. No. 85-796, 74 Stat. 962; Act of Sept. 2, 1960, Pub L. No. 86-682, 74 Stat. 654; Act of Dec. 16, 1967, Pub. L. No. 90-206, 81 Stat. 623.

54 S. Rep. No. 113, 84th Cong., 1st Sess., 1 n., reprinted in 1955 U.S. Code Cong. & Ad. News 2210-11.

55 Postal Reorganization Act of 1970, Pub. L. No. 91-375, 84 Stat. 745; Act of Jan. 8, 1971, Pub. L. No. 91-662, 84 Stat. 1973. See H.R. 4605 § 5, 91st Cong., 2d Sess. (1970); H.R. Rep. No. 1105, 91st Cong., 2d Sess. 2 (1970). The amendments deleted all reference in § 1461 to contraceptives except for the penalties imposed for violations of § 3001(e).

56 Importing, transporting, mailing, and advertising of obscene and crime-inciting materials remain subject to criminal penalties. 18 U.S.C. § 1461. See supra note 49.

57 Section 3001(e) permits the mailing of unsolicited samples to manufacturers, dealers, licensed physicians, nurses, pharmacists, druggists, hospitals, and clinics. S. Rep. No. 1472, 91st Cong., 2d Sess. 2(1970); H.R. Rep. No. 1105, 91st Cong., 2d Sess. 1 (1970). See supra note 2.

58 H.R. Rep. No. 1105, 91st Cong., 2d Sess. 3 (1970).

59 Id.

60 Id.

61 Id. at 2-3.

62 368 F. Supp. 11 (C.D. Cal. 1973).

63 Birth Control Handbook (5th ed. rev. 1969) (published by students at McGill University in Montreal), cited in Associated Students, 386 F. Supp. at 14.

64 Associated Students, 368 F. Supp. at 14.

65 See supra note 49.

66 Associated Students, 368 F. Supp. at 24. An advertisement may constitute “commercial” or “noncommercial” speech. In Associated Students, the court based its finding that the mailing was noncommercial on the combined facts that the students had no commercial interest in the distribution of the birth control pamphlet and that the pamphlet expressed a “position on social policy.” Id.

67 Id. at 23.

68 Id. at 21.

69 39 C.F.R. pt. 111. Section 123.434 reads, in pertinent part: “Unsolicited advertisements for articles or things which are designed, adapted, or intended for preventing conception are nonmailable, except… when the mailer has no commercial interest in any such item.” Id. (emphasis added).

The Domestic Mail Manual is issued under the Postal Service's power to adopt regulations. 39 U.S.C. § 4001 as incorporated by reference in 39 C.F.R. pt. 111 (current version at 39 U.S.C. § 3001).

70 U.S. Const, amend. I. Reference to the first amendment in this Comment is solely to the clause that guarantees free speech.

For discussions on the guarantee of free speech, see generally Z. Chaffee, Free Speech In The United States (1941); A. Meiklejohn, Free Speech And Its Relation To Selfgovernment (1948); Baker, , Scope of the First Amendment Freedom of Speech, 25 Ucla L. Rev. 964 (1978)Google Scholar; Bogen, , Balancing Freedom of Speech, 38 Md. L. Rev. 387 (1979)Google Scholar; Emerson, , First Amendment Doctrine and the Burger Court, 68 Calif. L. Rev. 422 (1980)Google Scholar; Emerson, , Toward a General Theory of the First Amendment, 72 Yale L.J. 877 (1963)Google Scholar; Farber, , Content Regulation and the First Amendment: A Revisionist View, 68 GEO. L.J. 727 (1980)Google Scholar; Monaghan, , First Amendment “Due Process,” 83 Harv. L. Rev. 518 (1970)Google Scholar; Nimmer, , The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 Calif. L. Rev. 935 (1968)Google Scholar; Redish, , The Content Distinction in First Amendment Analysis, 34 Stan. L. Rev. 113 (1981)Google Scholar; Stone, , Restrictions on Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev. 81 (1978)Google Scholar.

71 See Palko v. Connecticut, 302 U.S. 319, 324-27 (1937).

72 See, e.g., Frohwerk v. United States, 249 U.S. 204, 206 (1917) (citing Robertson v. Baldwin, 165 U.S. 275, 281 (1896) (the first amendment “was not intended to give immunity for every possible use of language“)).

In Whitney v. California, Justice Brandeis, Justice Holmes concurring, stated that:

274 U.S. 357, 373 (1927) (Brandeis & Holmes, JJ., concurring).

73 See Chaplinsky v. New Hampshire, 315 U.S. 568, 572-74 (1942) (fighting words comprise an unprotected category of speech); see also Feiner v. New York, 340 U.S. 315, 320-21 (1958) (“[where] the speaker passed the bounds of argument or persuasion and undertakes incitement to riot [the police] are [not] powerless to prevent a breach of the peace“); Gooding v. Wilson, 405 U.S. 518, 523 (1972) (recognizing the “state power constitutionally to punish ‘fighting’ words under carefully drawn statutes not also susceptible of application to protected expression“).

74 See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563 (“[t]he government may ban forms of communication more likely to deceive the public than to inform it“); see also Freidman v. Rogers, 440 U.S. 1, 13, 15-16 (1979) (prohibition against the use of optometrical trade names ensures that information on optometrical services will be fully and accurately communicated to consumers).

75 See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (even the press is not immune from defamation suits, although “actual malice” must be alleged and proved to warrant an award of damages for false statements); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 348 (1974) (a publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim New York Times Co. protection against liability for defamation on the ground that the defamatory statements concern an issue of public or governmental interest).

76 See FCC v. Pacifica Found., 438 U.S. 726 (1978) (plurality opinion) (the government has a legitimate interest in regulating indecent speech over the airwaves); Paris Adult Theatre I v. Slayton, 413 U.S. 49, 57 (1973) (states have a legitimate interest in regulating the commerce and public exhibition of obscene materials); cf. Cohen v. California, 403 U.S. 15, 22-26 (1971) (the government may not impose criminal sanctions for the public display of indecent speech). Courts have freely interchanged the terms “obscene” and “indecent.“

77 See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam) (“constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action“).

78 Valentine v. Chrestensen, 316 U.S. 52 (1942). In Chrestensen, the defendant hand distributed a leaflet advertising a submarine exhibit which charged an admission fee. A New York statute prohibited street distribution of commercial and business advertising material. Id. at 53. In an attempt to sidestep the statute, the defendant printed, on the reverse side of the leaflet, a protest against New York City for denying his application for wharfage facilities. Id. The Court refused to enjoin the enforcement of the ordinance, ruling that the defendant's protest did not change the commercial nature of the leaflet. Id. at 55.

79 The Valentine Court only held that the ordinance was a reasonable regulation of the manner in which commercial advertising could be distributed. Valentine may not stand for the proposition that all restrictions on commercial advertising are constitutionally sanctioned. Justice Douglas, a member of the Valentine Court, noted “[t]he ruling was casual, almost offhand. And it has not survived reflection.” Cammarano v. United States, 358 U.S. 498, 514 (1959) (Douglas, J., concurring); see also Lehman v. City of Shaker Heights, 418 U.S. 298, 314 n.6 (1974) (Brennan, J., dissenting); Pittsburgh Press Co. v. Pittsburgh Comm'n of Human Relations, 413 U.S. 376, 387-88 (1973) (Douglas, J., dissenting); id. at 393 (Burger, C.J. dissenting); id. at 401 (Stewart, J., dissenting).

80 New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Petitioner New York Times ran an advertisement which described police activity against members of the civil rights movement and appealed for funds to support the causes of Dr. Martin Luther King, Jr. In both Chrestensen and New York Times Co. the advertisers couched their commercial goals in grievances. But the New York Times Co. Court focused on the advertisement's content, rather than the advertiser's purpose, and consequently found that the advertisement was “editorial” in nature and not “commercial” in the Chrestensen sense. Id.

81 See, e.g., Pittsburgh Press Co., 413 U.S. 376 (1973).

82 421 U.S. 809 (1975).

83 Bigelow, 421 U.S. at 822.

84 One writer has summarized the Bigelow test:

Roberts, , Toward a General Theory of Commercial Speech and the First Amendment, 40 Ohio St. L.J. 115, 126 (1979)Google Scholar.

85 425 U.S. 748 (1976).

86 Id. at 773. Citing Bigelow, the Court reiterated that “[p]urely factual matter of public interest may claim protection.” Id. at 762. The Court cautioned, however, that some restrictions on commercial speech are legitimate. Id. at 761. But the Court declined to set a standard for such restrictions. Id. at 770.

87 Id. at 773.

88 447 U.S. 557 (1980). See supra text at note 12. In a companion case, Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530 (1980), the Court invalidated an order by the New York Public Service Commission prohibiting a public utility's inclusion of noncommercial bill inserts to promote its position on controversial issues of public policy. Holding that utilities enjoy full first amendment protection for comments on public issues, the Court reasserted its reliance on a flexible balancing approach. See generally Note, The Two-Track Model of First Amendment Adjudication after Consolidated Edison Co. v. Public Service Commission, 62 B.U.L. Rev. 215 (1982) [hereinafter cited as Note, The Two-Track Model]; Note, Utility Companies and the First Amendment: Regulating the Use of Political Inserts in Utility Bills, 64 Va. L. Rev. 921 (1978).

In more recent cases, the Court has continued to rely upon Central Hudson Gas. See, e.g., Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981); In re R.M.J., 455 U.S. 191 (1982). The Court has continued to allow regulation of commercial speech where equivalent regulation of noncommercial speech is impermissible. See Friedman v. Rogers, 440 U.S. 1, 11 n.9 (1979).

89 Central Hudson Gas, 447 U.S. at 563 (citing Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456, 457 (1978)).

90 Id. at 564.

91 Id. at 563.

92 The Central Hudson Gas test introduced two modifications of pre-existing models for commercial speech adjudication: 1) the use of “special treatment categories,” and 2) compelling state interest/least restrictive means analysis. Special treatment categorization arises when the Court must evaluate content-based restrictions on previously unprotected categories. See Note, The Two-Track Model, supra note 88. Because special treatment categories rely upon subjective interpretation of facts, judgments based on special treatment categories may have little precedential value. Id. at 254-55.

93 Griswold v. Connecticut, 381 U.S. 479, 483 (1965). See Loving v. Virginia, 388 U.S. 1, 12 (1967) (marriage); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-42 (1942) (procreation); Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972) (White, J., concurring) (contraception); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (family relationships); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) (child rearing and education); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); and Roe v. Wade, 410 U.S. 113 (1973) (abortion).

94 381 U.S. 479 (1965).

95 405 U.S. 438 (1972).

96 Id. at 453.

97 In Roe v. Wade, 410 U.S. 113 (1973), the Court cautioned that the right to privacy is not absolute; certain state interests (in Roe, “interests in safeguarding health, in maintaining medical standards, and in protecting potential life“) may “become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.'’ Id. at 154 (emphasis added). Government regulation “may be justified only by a ‘compelling state interest'… and … must be narrowly drawn to express only the legitimate state interests at stake.” Id. at 155. See also Eisenstadt, 405 U.S. at 463 (White, J., concurring).

98 431 U.S. 678 (1977).

99 NY [Educ] Law § 6811(8)(McKinney 1972).

100 The Court stated that “a State may not ‘completely, suppress the dissemination of concededly truthful information about an entirely lawful activity,’ even when that information could be categorized as ‘commercial speech.’ “ Carey, 431 U.S. at 700 (citing Virginia State Bd. of Pharmacy, 425 U.S. at 773 (1976)).

101 Carey, 431 U.S. at 700. The prohibition on advertisements and displays of contraceptives was held invalid for both prescription and nonprescription contraceptives. Id. at 700 n.26.

102 Id. at 701 (citing Virgina State Bd. of Pharmacy, 425 U.S. at 760). Construing Griswold, the Carey Court ruled that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the state. Carey, 431 U.S. at 687. The “independent, fundamental ‘right of access to contraceptives’ … [is] essential to [the] exercise of the constitutionally protected right of decision in matters of childbearing.” Id. at 688.

103 United States ex rel. Milwaukee Social Democratic Pub. Co., v. Burleson, 255 U.S. 407, 437 (1921) (Holmes, J., dissenting).

104 Unlike an individual's constitutional right of privacy in contraceptive matters, the interest in freedom from invasion of privacy sounds in state tort law. See Prosser, , Privacy, 48 Cal. L. Rev. 383 (1960)Google Scholar. But see Bloustein, , Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962 (1964)Google Scholar.

105 381 U.S. 301 (1965).

106 Id. at 307. The Court struck down § 305(a) of the Postal Service and Federal Employees Salary Act of 1962, Pub. L. No. 87-793, 76 Stat. 840. Section 305(a) required that unsealed mail containing communist propaganda from foreign countries be detained unless the addressee returned a reply card indicating his desire to receive it.

107 397 U.S. 728 (1970).

108 81 Stat. 645, 39 U.S.C. § 4009 (Supp. IV 1964 ed.). 39 U.S.C. § 4009, entitled “Prohibition of Pandering Advertisements in the Mails,” provided that any individual may protect himself from the receipt of advertisements in his home that offer for sale “matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative.” Section 4009 has been recodified in 39 U.S.C. § 3008 (Supp. III 1979).

109 Rowan, 397 U.S. at 738.

110 Id. at 736.

111 In United States v. Treatman, 408 F. Supp. 944 (CD. Cal. 1976), the District Court for the Central District of California relied upon Lamont and Rowan and held that, pursuant to 39 U.S.C. § 3011, injunctions may constitutionally issue on behalf of addressees who have requested not to receive “sexually oriented advertisements,” but that injunctions could not issue on behalf of those who had not requested that they not receive such mail.

112 See Carey v. Population Servs. Int'l, 431 U.S. 678, 701 (1977); see also Cohen v. California, 403 U.S. 15 (1971).

113 Miller v. California, 413 U.S. 15, 24, reh'g denied, 414 U.S. 881 (1973) (emphasis added); see Manual Enters. Inc. v. Day, 370 U.S. 478 (1962) (photographs of nude male were held not to be obscene because they were not so offensive as to be indecent). The Court in Manual Enters. Inc. stated that under 18 U.S.C. § 1461, which bars obscene matter from the mail, obscenity must be judged according to a national standard. See also Annot., 5 A.L.R. 3d 1158, 1182-86, (1966 & Supp. 1984 at 142-47).

114 See Roth v. United States, 354 U.S. 476, 487, reh'g denied, 355 U.S. 852 (1957).

115 See United States v. 35 MM. Motion Picture Film, 432 F.2d 705 (2d Cir. 1970) (motion picture film depicting normal sexual relations in graphic detail held not obscene because it did not appeal to prurient interest and had redeeming social value).

116 431 U.S. 678 (1977).

117 Id. at 701.

118 Id. Because the advertisements were deemed neither obscene nor likely to incite lawless activities, the Court held that exposure to minors was not a sufficient justification to warrant suppression of expression. See Erznoznik v. Jacksonville, 422 U.S. 205 (1975).

119 Carey, 431 U.S. at 701 & n.27 (citing Cohen v. California, 403 U.S. 15 (1971), and Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 773, 765 (1976)).

120 Note that, under the majority's opinion in Youngs Drug Prods. Corp., § 3001(e)(2) is unconstitutional as applied whether one considers the speech in question commercial or noncommercial. Youngs Drug Prods. Corp., 103 S. Ct. at 2880 n . l l.

121 Id. at 2889 (Stevens, J., concurring); cf. Farber, , Commercial Speech and First Amendment Theory, 74 Nw. U.L. Rev. 372, 386-90 (1979)Google Scholar. Justice Stevens went so far as to say that § 3001(e)(2) should be scrutinized as should a “prohibition on unsolicited mailings by an organization with absolutely no commmercial interest in the subject.” Youngs Drug Prods. Corp., 103 S. Ct. at 2889 (Stevens, J., concurring) (emphasis added).

122 Bigelow v. Virginia, 421 U.S. 809 (1975); First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978); see generally Farber, supra note 121, at 372, 407.

123 The Government argued that the drugstore circular advertisements were clearly commercial speech and that Youngs acknowledged the flyers and informational pamphlets to be “commercial activity.” Brief for Appellant at 14, Youngs Drug Prods. Corp.

Youngs, on the other hand, saw little distinction between its proposed mailings and speech characterized as noncommercial. Brief for Appellee at 27, Youngs Drug Prods. Corp. In Youngs's opinion, the content of all its proposed mailings was therefore “fully protected speech.” Id. at 12, 13, 15, 17, 20, 25-31, 32.

124 Virginia State Bd. of Pharmacy, 425 U.S. at 762 (quoting Pittsburgh Press v. Human Rel. Comm'n, 413 U.S. 376, 385 (1973)), quoted in Youngs Drug Prods. Corp., 103 S. Ct. at 2880.

125 Youngs Drug Prods. Corp., 103 S. Ct. at 2880.

126 Id.

127 “[Here], a speaker desires to convey truthful information relevant to important social issues such as family planning and prevention of veneral disease … .” Id. at 2882.

Justices Rehnquist and O'Connor, concurring, recognized the informational value of the advertisements in aiding parents in guiding their children's education with respect to contraception. Id. at 2887 (Rehnquist & O'Connor, JJ., concurring).

128 The number of unintended pregnancies and abortions each year demonstrates public ignorance about contraception. Reports of epidemic genital herpes and venereal disease further show the lack of public exposure to information on the use of contraceptives. See The New Scarlet Letter, Time, Aug. 2, 1982, at 62-64; Dryfoos, Contraceptive Use, Pregnancy Intentions and Pregnancy Outcomes Among U.S. Women, 14 Fam. Plan. Persps. 81, 83, cited in Amicus Curiae Brief at 15 n.8., 19-20, Youngs Drug Prods. Corp.; Hastings, Providing Hope for Herpes Patients, 6 Sexual Med. Today 8, 15 (1982), cited in Amicus Curiae Brief at 20, Youngs Drug Prods. Corp. See generally id. at 19-22.

129 See supra notes 58-60 and accompanying text.

130 Youngs Drug Prods. Corp., 103 S. Ct. at 2882.

131 Id. at 2881 (citing Central Hudson Gas, 447 U.S. at 566 (1980)).

132 Id.

133 The Government neither alleged nor could it be seriously argued that Youngs's mailings were obscene materials. Because the sale and use of contraceptives is not prohibited, Youngs's mailings may not be termed “crime-inciting.” For a discussion of unprotected categories of speech, see supra notes 73-77 and accompanying text.

134 Youngs Drug Prods. Corp., 103 S. Ct. at 2883 (citing Carey, 431 U.S. at 701).

135 See Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 543 (1980).

136 See, e.g., FCC v. Pacifica Found., 438 U.S. 726, 750-51 (1978) (broadcast regulation) (“As Mr. Justice Sutherland wrote, a ‘nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard'… . [W]hen … the pig has entered the parlor, the exercise of … regulatory power does not depend on proof that the pig is obscene.“).

137 See, e.g., Cohen v. California, 403 U.S. 15, 25 (1971) (“the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us… . [O]ne man's vulgarity is another's lyric“).

138 Youngs Drug Prods. Corp., 103 S. Ct. at 2883. In Youngs Drug Prods. Corp., the district court stated that Youngs's proposed mailings were “not obscene” and that “there is no suggestion that they treat the subject matter of desirability and availability of contraceptives in a pandering, suggestive, or graphic way.” Youngs Drug Prods. Corp., 526 F. Supp. at 824. The district court found that the mailings in question “appear[ed] to be less explicit and less potentially offensive to sensitive addressees than was the detailed booklet on birth control and abortion practices and resources in Associated Students.” Id. at 827.

139 Id. at 2886.

140 Much advertising is “tasteless and excessive,” and is bound to offend someone. Virginia State Bd. of Pharmacy, 425 U.S. at 765 (1976).

141 Consolidated Edison Co., 447 U.S. at 538 (citing Police Dep't v. Mosely, 408 U.S. 92, 96 (1972)).

142 H.L. v. Matheson, 450 U.S. 398, 410 (1981) (quoting Bellotti v. Baird, 443 U.S. 622, 637 (1979)), quoted in Youngs Drug Prods. Corp., 103 S. Ct. at 2883-84.

143 Central Hudson Gas, 447 U.S. at 566 (1980).

144 Youngs Drug Prods. Corp., 103 S. Ct. at 2884.

145 Note that if Griswold is read narrowly to only affirm an individual's right to have and use contraceptives, then there is arguably no companion Griswold right to any particular access to contraceptives. The constitutional right to have contraceptives therefore would not imply constitutional protection against a conviction for advertising contraceptives. Compare Stanley v. Georgia, 394 U.S. 557 (1967) (an individual has a constitutional right to have and use obscene materials in his home) with United States v. Reidel, 402 U.S. 351 (1971) (upholding a statute prohibiting the solicited supply of obscene material for commercial purposes and leaving undecided the validity of such prohibition as against individual importation for personal use).

146 Youngs Drug Products Corp., 103 S. Ct. at 2885 (citing Linmark Assocs. v. Willingboro, 431 U.S. 85, 95-96 (1977)). But see Bigelow v. Virginia, 421 U.S. 832 (Rehnquist & White, JJ., dissenting) (“the States have a strong interest in the prevention of commercial advertising in the health field—both in order to maintain high ethical standards in the medical profession and to protect the public from unscrupulous practices“).

147 See supra notes 58-60 and accompanying text.

148 Youngs Drug Prods. Corp., 103 S. Ct. at 2879 n.5.

149 In Lamont v. Commission of Motor Vehicles, 269 F. Supp. 880 (S.D.N.Y. 1966), aff'd, 386 F.2d 449 (2d Cir. 1967), cert, denied, 391 U.S. 915 (1968), the Court stated that “[t]he mail box, however noxious its advertising contents often seem to judges as well as other people, is hardly the kind of enclave that requires constitutional defense to protect ‘the privacies of life.’ The short, though regular, journey from mail box to trash can … is an acceptable burden at least as far as the Constitution is concerned.” Id. at 883.

150 The Postal Service had suggested that Youngs conduct a “pre-mailing,” to obtain permission to send its advertisements. This action, however, would have worked an undue economic hardship on Youngs.

151 In the broadcast media, Youngs Drug Prods. Corp. will not prove ultimately persuasive. The Court's treatment of broadcast regulations differs considerably from regulation of more traditional types of speech. The uniquely public nature of the airwaves separates broadcast media from direct mail advertising. For a detailed discussion of advertisements for contraceptives in the broadcast media, see Note, Advertisements for Contraceptives as Commercial Speech in the Broadcast Media, 31 Case W. Res. L. Rev. 336 (1981).

152 Youngs Drug Prods. Corp., 103 S. Ct. at 2883 (citing Brief for Appellants at 24-33).