WILLIAM F. BOLGER, ET AL., APPELLANTS v. YOUNGS DRUG PRODUCTS CORP. No. 81-1590 In the Supreme Court of the United States October Term, 1982 On Appeal from the United States District Court for the District of Columbia Brief for the Appellants PARTIES TO THE PROCEEDING In addition to the parties listed in the caption, the appellants are the United States Postal Service and William French Smith, Attorney General. TABLE OF CONTENTS Page Opinion below Jurisdiction Statute and regulation involved Statement Summary of argument Argument: 39 U.S.C. 3001(e)(2) is a permissible regulation of commercial speech A. Section 3001(e)(2) does not interfere significantly with free speech B. Section 3001(e)(2) promotes substantial government interests C. Section 3001(e)(2) is no more burdensome than necessary to serve these interests Conclusion OPINION BELOW The opinion of the district court (J.S. App. 1a-18a) is reported at 526 F.Supp. 823. JURISDICITON The order of the district court (J.S. App. 19a-20a) was entered on September 30, 1981, and a notice of appeal to this Court (J.S. App. 21a) was filed on October 30, 1981. On December 23, 1981, the Chief Justice extended the time for docketing the appeal to and including February 27, 1982, and the appeal was docketed on February 25, 1982. This Court noted probable jurisdicition on May 17, 1982 (J.A. 47). Its jurisdiction rests on 28 U.S.C. 1252. United States v. Darusmont, 449 U.S. 292, 293 (1981). STATUTE AND REGULATION INVOLVED 39 U.S.C. 3001(e) provides: (1) Any matter which is unsolicited by the addressee and which is designed, adapted, or intended for preventing conception (except unsolicited samples thereof mailed to a manufacturer thereof, a dealer therein, a licensed physician or surgeon, or a nurse, pharmacist, druggist, hospital, or clinic) is nonmailable matter, shall not be carried or delivered by mail, and shall be disposed of as the Postal Service directs. (2) Any unsolicited advertisement of matter which is designed, adapted, or intended for preventing conception is nonmailable matter, shall not be carried or delivered by mail, and shall be disposed of as the Postal Service directs unless the advertisement -- (A) is mailed to a manufacturer of such matter, a dealer, therein, a licensed physician or surgeon, or a nurse, pharmacist, druggist, hospital, or clinic; or (B) accompanies in the same parcel any unsolicited sample excepted by paragraph (1) of this subsection. An advertisement shall not be deemed to be unsolicited for the purposes of this paragraph if it is contained in a publication for which the addressee has paid or promised to pay a consideration or which he has otherwise indicated he desires to receive. Domestic Mail Manual Section 123.434 (July 7, 1981) provides: Unsolicited advertisements for articles or things which are designed, adapted or intended for preventing conception are nonmailable, except when sent to a manufacturer of such articles or things, a dealer therein, a licensed physician or surgeon, or a nurse, pharmacist, druggist, hospital or clinic, or when the mailer has no commercial interest in any such item. Advertisements contained in a publication for which the addressee has paid or promised to pay a consideration, or which he has otherwise indicated he desires to receive, are not deemed unsolicited for the purposes of this section. QUESTION PRESENTED Whether 39 U.S.C. 3001(e)(2), which prohibits the mailing of unsolicited advertisements for contraceptives, is unconstitutional as applied to appellee's commercial mailings. STATEMENT 1. Appellee is a manufacturer and distributor of contraceptive devices. Until a few years ago, appellee's sales promotions consisted primarily of advertisements in trade publications and popular national magazines (J.S. App. 1a). Recently, following a series of "business discussions" between appellee's marketing director and a wholesaler carrying appellee's products (J.A. 14), appellee determined to supplement its traditional sales techniques by embarking on a campaign of unsolicited mass mailings to members of the public at large (J.S. App. 1a-2a). In early 1979, the Postal Service traced an unsolicited advertisement for contraceptives to a wholesaler of appellee's products (J.S. App. 4a). It advised the wholesaler of 39 U.S.C. 3001(e)(2), which declares that an "unsolicited advertisement" of a contraceptive device "is nonmailable matter" unless it is mailed to a manufacturer, dealer, physician, pharmacist, or hospital, or is contained in a publication that the addressee has requested. /1/ Postal Service regulations, of which the wholesaler and appellee were subsequently informed, specifically exempt from this prohibition materials in which "the mailer has no commercial interest" (Domestic Mail Manual (DMM) Section 123.434 (July 7, 1981)). /2/ The Postal Service considered and rejected appellee's legal argument that Section 3001(e) could not constitutionally prohibit its proposed mailings. Appellee then brought this action, seeking declaratory and injunctive relief, in the United States District Court for the District of Columbia. Appellee offered three types of unsolicited materials as examples of the advertisements it intended to mail as part of its promotional campaign. The district court described these as "informational pamphlets promoting the desirability and availability of prophylactics in general, and (appellee's) products in particular"; "flyers exclusively or substantially devoted to promoting prophylactics in general, those made by (appellee), and/or those stocked * * * by a particular drugstore"; and "multi-page, multi-item flyers * * * promoting a large variety of products * * * including prophylactics" (J.S. App. 1a-2a). /3/ Appellee asserted that Section 3001(e), as applied to its mailings, violated the First, Fifth, and Ninth Amendments (J.S. App. 5a). 2. The district court held that "all three types of proposed mailings are commercial solicitations" and that "this is a commercial speech case with respect to all three types of proposed mailings" (J.S. App. 7a, 8a n.5). The court explained that appellee's mailings are "promotional materials" in which appellee "has a commercial interest" (id. at 8a n.5). Accordingly, the court considered the constitutionality of Section 3001(e)(2) in light of the standards prescribed by Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). /4/ The district court first concluded that "the government does have a substantial interest" in enforcing Section 3001(e)(2). The court identified two components of this substantial interest -- the "interest in preventing such material from falling into the hands of the children of addressees who do not wish their children to be exposed to it," and the "protection of the privacy of individuals in their homes from even one mailing that, because of its sexual subject matter, is likely to offend some sensitive addressees" (J.S. App. 10a-11a). The district court also acknowledged that the interest in ensuring that appellee's unsolicited mailings "not fall into the hands of children whose parents do not wish them to be exposed to subject matter of a sexual nature" was "a central concern" in the case of at least some of appellee's materials (id. at 16a). The district court also ruled that Section 3001(e) "directly advance(s)" these governmental interests and "would seem to be quite effective in dealing with the problem of unwanted mailings" (J.S. App. 11a, 12a; emphasis in original). The district court rejected appellee's argument that mailings of noncommercial materials -- which are not regulated by Section 3001(e)(2) -- could equally impair the government's interests, noting that "since, generally speaking, noncommercial mailers do not mail the avalanche of materials that commercial mailers do, a ban on commercially inspired mailings will go far to achieve the governmental objective involved in this case" (J.S. App. 12a; footnote omitted). In any event, the district court stated, the Constitution requires only that a restriction directly advance the government's interest, not that it be a "complete solution" (ibid.). The district court nonetheless concluded that Section 3001(e)(2) violates the First Amendment "because it is 'more extensive than is necessary to serve the (governmental) interest'" (J.S. App. 12a, quoting Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 572; brackets in original). To remedy this perceived defect, the district court "devised a less restrictive alternative" (J.S. App. 17a), which it then ordered into effect (id. at 19a-20a). That alternative consisted, first, of permitting "multi-item drugstore flyers containing tasteful promotion of contraceptives" to be mailed without restriction, at least so long as "the ad for contraceptives (is) * * * buried in the middle pages of the flyer" and does not "appear() on the front page of the flyer, or by some other manner of graphic design dominate() the rest of the flyer" (id. at 13a, 16a & n.10). The district court ordered that "flyers and pamphlets devoted exclusively or substantially to promoting the desirability or availability of contraceptives" would be mailable only if they satisfied certain conditions (id. at 15a): First, they must be mailed in an envelope that completely obscures from the sight of the addressee the contents. Second, the envelope must contain a prominent notice stating in capital letters that the enclosed material has not been solicited in any way by the recipient. Third, the envelope must contain a prominent warning that the contents are "promotional material for contraceptive products." Fourth, the envelope must contain a notice, in less prominent lettering than the warning and the other notice, but not in "fine print," that federal law permits the recipient to have his name removed from the mailing list of the mailer of that envelope, and citing to 39 U.S.C. Section 3008(a). /5/ The district court acknowledged that its order did not fully serve all the objectives of Section 3001(e)(2). The district court pointed out that "(i)n particular, these requirements do not provide absolute protection against having material concerning contraception occasionally fall into the hands of inquisitive children" (J.S. App. 18a). But the district court declared that it was "satisfied that it has struck the balance that the Constitution mandates" (ibid.). SUMMARY OF ARGUMENT 39 U.S.C. 3001(e)(2), by its terms and as interpreted by the Postal Service, applies only to commercial speech. As the district court found, all of appellee's proposed unsolicited mailings are commercial expression. This Court's decisions make it clear that Congress may regulate commercial speech if it "assert(s) a substantial interest and the interference with speech (is) in proportion to the interest served" (In re R.M.J., No. 80-1431 (Jan. 25, 1982), slip op. 11). That test is satisfied here. A. 1. Section 3001(e)(2) imposes, as most, a minimal burden on expression. Not only does it have no effect whatever on noncommercial speech -- such as any mailings by organizations promoting birth control as a moral or political cause -- but it reaches only those advertisements that are sent by mail on an unsolicited basis. Appellee and other advertisers therefore remain free to promote contraceptives in a wide variety of ways. In addition, any person who wants to receive appellee's advertisements may do so; appellee need only obtain his consent. Appellee may even attempt to obtain this consent through the mails, because the Postal Service does not interpret Section 3001(e)(2) to prohibit a "pre-mailing" that, while not advertising contraceptive products, notifies recipients that such advertisements are available upon request. Section 3001(e)(2) also permits contraceptive advertisements to be placed in publications that are sent through the mails, so long as the publication itself is not unsolicited, and it permits unsolicited advertisements to be mailed to physicians, pharmacists, dealers, and others with a professional interest. Commercial speech is protected by the First Amendment because of its value to the listener, not because of its value to the advertiser. Thus, to the extent Section 3001(e)(2) prevents appellee's advertisements from reaching unwilling recipients, it has no adverse effect on First Amendment rights. Because it prohibits only unsolicited mailings, Section 3001(e)(2) will have an impact on the protected rights only of those who are so uninterested in appellee's products that they have not sought information about them -- and then only on such a person's ability to receive that information in the form of unsolicited advertisements through the mails. Even as to this group, it is implausible to suppose that unsolicited mailed advertisements are of great importance to people making a decision about a personal and sensitive subject like contraception. 2. Unlike other restrictions on commercial speech that this Court has invalidated, Section 3001(e)(2) is not an attempt to influence behavior by denying information to consumers. On its face, the narrow restriction imposed by Section 3001(e)(2) is obviously not designed for this purpose. It allows information to reach any consumer who seeks it; it permits a wide range of commercial (and all noncommercial) messages to reach all consumers; and the sole category of expression it does restrict is among that least likely to play a role in a consumer's decisions on the subject of contraception. In contrast, the predecessor of Section 3001(e)(2) prohibited all mailings, commercial and noncommercial, concerning contraceptive products; Congress repealed this sweeping prohibition and replaced it with the limited regulation of Section 3001(e)(2) prohibited all mailings, commercial and noncommercial, concerning contraceptive products; Congress repealed this sweeping prohibition and replaced it with the limited regulation of Section 3001(e)(2) because it recognized (explicitly in the legislative history) that contraception is a matter of personal choice, to be left to each individual. B. 1. Section 3001(e)(2) directly promotes the government's substantial interest in aiding parents' efforts to discuss sensitive and important subjects like birth control with their children. Congress may legitimately attempt to ensure that, if parents so desire, they -- not appellee or another manufacturer promoting its wares -- will introduce their children to the subject of contraception and instruct them on that subject. As this Court has recognied, the nature and volume of unsolicited mailed advertisements make them a particularly intrusive form of communication; parents may not even know that this mail contains promotional messages for contraceptives, and Congress was entitled to conclude that even if they do know, they cannot reasonably be expected to monitor all of this mail closely to ensure that advertisements for contraceptives do not fall into their children's hands. It is true, as appellee argued in the district court, that Section 3001(e)(2) permits noncommercial mailings about contraception and to that extent does not further the interest mentioned above. But the Constitution allows, and sometimes requires, a legislature to leave noncommercial expression unregulated in circumstances in which commercial speech can be restricted. Moreover, Congress might reasonably have concluded that because the form, content, and volume of advertisements like appellee's are dictated by the sender's commercial interests, they are more likely to interfere with parents' efforts to educate their children on a sensitive subject. Congress can properly determine that such efforts, while not isolated from the wide range of information and communcation left untouched by Section 3001(e)(2), should be free from the intrusion of inappropriate "junk mail" and unwanted, commercially motivated solicitations. 2. Especially when expression intrudes on a home, as unsolicited commercial mail does, the government has a substantial interest in protecting recipients from materials they are likely to find offensive. This is particularly so when the governmental regulation reaches only commercial expression and when the regulation is, like Section 3001(e)(2), not prompted by Congress's disagreement with a message conveyed by the advertising. There can be little doubt that mnay persons find commercial, promotional messages about a matter like contraception -- a matter so personal and private that it has a special constitutional status -- to be offensive. Apparently, the district court and appellee believe this problem can be solved by distinguishing between "tasteful" and "tasteless" promotions; that approach presents obvious, and fatal, constitutional and practical difficulties. C. Although the district court acknowledged the substantial governmental interests served by Section 3001(e)(2), the court invalidated the statute because it believed it had "devised" a less restrictive alternative. The principal effect of the district court's alternative scheme is to shift the burden and cost of distinguishing between willing and unwilling recipients from the advertiser to the to the unwilling recipient. Since, as we have said, appellee and other advertisers may use a pre-mailing to ask postal customers to request their products, the only gain from the district court's approach is that appellee will be able to make one less mailing to those customers, if any, who are interested in its advertisements but have not already requested them in some way. Moreover, as the district court conceded, its alternative is not as effective as Section 3001(e)(2) in achieving Congress's objectives. The district court's alternative may make it more likely that contraceptive advertisements will fall into the hands of children; it may increase the offensiveness of such advertisements; and as a practical matter it will prevent unwilling recipients from cutting off advertisements until they have received at least one unwanted mailing. Finally, the district court's alternative will probably not even be less restrictive of First Amendment rights; under that alternative, a recipient who objects to contraceptive advertisements will be forced to remove himself from the advertiser's mailing list entirely, with the result that he will be deprived of information about the advertiser's other products -- precisely the sort of deprivation that the constitutional protection for commercial speech is intended to prevent. More fundamentally, however, the district court erred in viewing "less restrictive alternative" analysis as an invitation to design a regulatory scheme that, in its view, struck a superior balance among the competing interests. Particularly in the area of commercial expression, the district court was not empowered to engage in this essentially legislative task. ARGUMENT 39 U.S.C. 3001(e)(2) IS A PERMISSIBLE REGULATION OF COMMERCIAL SPEECH By its terms, 39 U.S.C. 3001(e)(2) applies only to "advertisements," and the Postal Service has further interpreted it not to apply where the mailer has "no commercial interest" in the materials. /6/ Section 3001(e)(2) therefore reaches only commercial speech -- "'expression related solely to the economic interests of the speaker and its audience'" (In re R.M.J., No. 80-1431 (Jan. 25, 1982), slip op. 12 n.17, quoting Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 561 (1980)). In addition, as the district court found, all the materials involved in this case are commercial speech. In seeking to mail its unsolicited materials promoting contraceptives, appellee's "sole purpose was to encourage members of the public to (buy its products) for * * * profit" (In re R.M.J., supra, slip op. 12 n.17). The drugstore flyers containing advertisements for contraceptives (J.A. 16-19, 42-45) are no more than "'speech proposing a commercial transaction'" and therefore fall within the core definition of commercial speech (Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 562, quoting Ohralik v. Ohio State Bar Association, 436 U.S. 447, 456 (1978); see, e.g., Pittsburgh Press Co. v. Human Relations Commission, 413 U.S. 376, 385 (1973); Valentine v. Chrestensen, 316 U.S. 52 (1942)). The other promotional materials appellee proposes to mail are, as appellee acknowledges (J.A. 7), also "commercial activity" (Ohralik v. Ohio State Bar Assocation, supra, 436 U.S. at 456; Friedman v. Rogers, 440 U.S. 1, 10 n.9 (1979)); they are "primarily concerned with providing information about the characteristics and costs of goods and services" (Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980)). /7/ The fact that some of these materials take the form of "advertising that links a product to a * * * debate" over the various methods of contraception does not entitle them to the "broad constitutional protection" afforded noncommercial speech. Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 563 n.5. /8/ Commercial speech occupies a "subordinate position in the scale of First Amendment values" and is subject to greater regulation than fully protected expression. Ohralik v. Ohio State Bar Association, supra, 436 U.S. at 456; see, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-772 n.24 (1976). Specifically, "(t)he protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation." Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 563. Therefore, in deciding whether a restriction on commercial expression is valid, "a court may not escape the task of assessing the First Amendment interest as stake and weighing it against the public interest allegedly served by the regulation." Bigelow v. Virginia, 421 U.S. 809, 826 (1975); see Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 502-503, 517 (1981) (plurality opinion); Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 91 (1977). While the power to regulate commercial speech is greatest when the speech is deceptive or proposes an illegal transaction, the Court has made it clear that the government "retains * * * authority to regulate" other forms of commercial expression if it "assert(s) a substantial interest and the interference with speech (is) in proportion to the interest served." In re R.M.J., supra, slip op. 11; see Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 564. A. Section 3001(e)(2) Does Not Interfere Significantly With Free Speech 1. Section 3001(e)(2) constitutes, at most, a minimal burden on expression. Because it is limited to "advertisements" in which the sender has a "commercial interest," Section 3001(e)(2) has no effect on the activities -- including the unsolicited mailings -- of individuals or organizations committed to advocating birth control or family planning as a moral or political matter. Instead, Section 3001(e)(2) concerns only "solicitation for pecuinary gain" (In re Primus, 436 U.S. 412, 422 (1978)). The Postal Service's interpretation of Section 3001(e)(2) was issued to make this point clear (see pages 13-14 note 6, supra). Moreover, even within the area of commercial advertising for contraceptives, Section 3001(e)(2) is in no sense comparable to the state statute, invalidated in Carey v. Population Services International, 431 U.S. 678, 700-702 (1977), that sought "to suppress completely any information about the availability and price of contraceptives" (id. at 700). Nor does Section 3001(e)(2) resemble the regulatory measure at issue in Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, which "completely ban(ned) promotional advertising by an electrical utility" (447 U.S. at 558). See also Bates v. State Bar, 433 U.S. 350, 379, 383 (1977) ("the suppression of all advertising by attorneys"; "blanket suppression"); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra, 425 U.S. at 771 (regulation "singles out speech of a particular content and seeks to prevent its dissemination completely"). Far from being an absolute ban, Section 3001(e)(2) does not bar any major channel of communication or require that advertising for contraceptives conform to certain narrow specifications. Advertising that does not rely on the mails is unaffected by Section 3001(e)(2). The statute also leaves appellee free to mail its advertisements to persons who have requested them. Appellee may promote its contraceptives in newspapers and other publications that are sent through the mails to subscribers. Furthermore, appellee may use the mails, even without a request, to reach physicians, pharmacists, dealers, and others who are in the best position to buy its products in large quantities and recommend or distribute them. Thus, appellee is prevented only from engaging in mass mailings of its promotional materials to members of the general public who have not asked to receive them. Appellee does not suggest, and the district court did not find, that the numerous alternatives to mass mailings are available only "'in theory,'" while "'in practice'" unsolicited mailed advertisements are the only effective means of promoting its products. See Metromedia, Inc. v. City of San Diego, supra, 453 U.S. at 516, quoting Linmark Associates, Inc. v. Township of Willingboro, supra, 431 U.S. at 93; United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 135-136 (1981) (Brennan, J., concurring). Indeed, until very recently, appellee, which has sold contraceptives for 60 years (J.A. 5), used a sales force and advertisements in national magazines exclusively (J.S. App. 1a) -- apparently with considerable success -- to reach potential customers. In additon, this Court has frequently emphasized the hardiness of commercial speech. See, e.g., Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 564 n.6; Bates v. State Bar, supra, 433 U.S. at 381. "Commercial speech, because of its importance to business profits, and because it is carefully calculated, is * * * less likely than other forms of speech to be inhibited by proper regulation." Friedman v. Rogers, supra, 440 U.S. at 10. The principle that the overbreadth doctrine generally does not apply to commercial expression (see Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., No. 80-1681 (Mar. 3, 1982), slip op. 7) rests on the premise that one who has a commercial interest in speaking is likely to do so even in ways that may appear to be prohibited by a statute. See New York v. Ferber, No. 81-55 (July 2, 1982), slip op. 25. A fortiori, appellee and other manufacturers and distributors of contraceptives, impelled by the profit motive, are likely to be resourceful in devising means of eaching potential customers other than unsolicited mailings. Finally, Section 3001(e)(2) applies only to unsolicited mailings, and therefore does not prevent any willing recipient from receiving advertisements for contraceptive products. Appellee may use any number of means -- such as flyers distributed at drugstores or with its products -- to obtain the necessary consent to mail its advertisements. Appellee may even use the mails in this effort; the Postal Service does not interpret Section 3001(e)(2) to prohibit a "premailing" that, while not advertising contraceptive products, notifies recipients that such advertisements are available upon request. Thus, at most, the net effect of Section 3001(e)(2) is to require appellee to conduct a single additional mailing to those consumers who are interested in appellee's advertisements but have not already requested them. Neither the district court nor appellee has suggested any reason to believe that this will be a large class. /9/ Appellee apparently would find its commercial interests better served by mass unsolicited mailings of advertisements to willing and unwilling recipients alike. But the purpose of protecting commercial expression is not to ensure that sellers will be able to select what they consider to be the optimal marketing strategy. The Court has suggested that the speech of corporate entities -- even noncommercial speech on matters of pressing public concern -- is protected not because of its importance to the speaker but because of "its capacity for informing the public * * *." First National Bank v. Bellotti, 435 U.S. 765, 777 (1978); see Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 534 n.1 (1980). See also CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981), quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389 (1969). And the Court has stated that "(t)he First Amendment's concern for commercial speech is based on the informational function of advertising." Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 563 (emphasis added); see Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra, slip op. 6 & n.8 (regulation does not offend the First Amendment if it does not "appreciably limit (a seller's communication of information * * * to its customers"); Metromedia, Inc. v. City of San Diego, supra, 453 U.S. at 505-506 n.12. See also Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra, 425 U.S. at 762-765. In otherwords, in the are of commercial speech the First Amendment is concerned with the likely value of the expression to the listeners, not to the advertiser. Seen in this light, the insignificance of the burden Section 3001(e)(2) imposes on free expression becomes clear. To the extent Section 3001(e)(2) prevents appellee's advertisements from reaching unwilling recipients, it has no adverse effect on First Amendment values. Because it regulates only unsolicited mailings, Section 3001(e)(2) will have an impact on the protected rights only of those who are so uninterested in appellee's products that they have not sought information about them -- and then only on such a person's ability to receive that information through the mails in the form of unsolicited commercial advertisements. Moreover, to whatever extent consumers generally depend on unsolicited advertisements in deciding what to buy, it is implausible to suggest that this source of information is of great importance to people making "private and sensitive" decisions (Carey v. Population Services International, supra, 431 U.S. at 685) about contraception. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra, 425 U.S. at 763-765 (importance of prescription drug prices to consumers of prescription drugs); Linmark Associates, Inc. v. Township of Willingboro, supra, 431 U.S. at 93 (usefulness of "For Sale" signs to prospective home buyers). See generally In re R.M.J., supra, slip op. 8 n.11 ("The commercial speech doctrine is itself based on certain empirical assumptions as to the benefits of advertising."). 2. It also cannot plausibly be contended that Section 3001(e)(2) is an effort to influence individuals' choices about whether to practice contraception. /10/ Thus, unlike other restrictions on commercial speech that this Court has invalidated, Section 3001(e) (2) is not a "covert attempt by the State to manipulate the choices of its citizens * * * by depriving the public of the information needed to make a free choice." Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 574-575 (Blackmun, J., concurring); see, e.g., Bates v. State Bar, supra, 433 U.S. at 375; Linmark Associates, Inc. v. Township of Willingboro, supra, 431 U.S. at 94-97; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra, 425 U.S. at 770. This is clear from both the statute on its face and its legislative history. The narrow restriction imposed by Section 3001 (e)(2) could not have been designed to influence behavior by reducing the free flow of information; as we noted above, it permits a wide variety of commercial and noncommercial information about contraception to reach consumers, and places no restriction whatever on the ability of any consumer who wants information to receive it. The relatively small amount of expression Section 3001(e)(2) does restrict is among that least likely to play a role in the important decisions consumers make on this subject. In addition, the legislative history of Section 3001(e)(2) shows that Congress, respecting the personal nature of decisions about contraception, deliberately chose to allow nearly all commercial and noncommercial communication about contraceptives to use the mails, regulating only unsolicited advertisements. The predecessor of Section 3001(e)(2) banned all mailings, commercial and noncommercial, concerning contraceptive products; its prohibitions applied to any "written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means (contraceptive drugs or devices) may be obtained * * * or how or by what means conception may be prevented" as well as "(e)very paper, writing, advertisement, or representation that any article * * * may, or can, be used or applied for preventing conception * * *." 18 U.S.C. (1964 ed.) 1461. In 1971, however, Congress replaced this sweeping prohibition with Section 3001(e) -- a narrow regulation of unsolicited commercial advertisements alone. Act of Jan. 8, 1971, Pub. L. No. 91-662, 84 Stat. 1974. Such a step would not have been taken by a legislature that intended to influence citizens not to practice contraception. /11/ In fact, the legislative history explains that Congress replaced the blanket prohibition with Section 3001(e) because it "(r)ecogniz(ed) that the use of contraceptive devices is a matter of individual choice for each citizen" (116 Cong. Rec. 20630 (1970) (remarks of Rep. Byrnes)), although it believed that unsolicited mailings of advertisements, except to physicians, hospitals, distributors, and the like, presented special concerns and should continue to be proscribed (see ibid.; S. Rep. No. 91-1472, 91st Cong., 2d Sess. 2 (1970)). B. Section 3001(e)(2) Promotes Substantial Government Interests As the district court recognized, Section 3001(e)(2) directly promotes the government's substantial interests in preventing families from receiving unwanted advertisements that may be offensive and that may, against parents' wishes, fall into the hands of children. Although Congress did not announce these interests in the legislative history when it enacted Section 3001(e), it is clear that Congress had such objectives in mind; it repealed all prohibitions against solicited mailings of contraceptive devices and advertisements for contraceptives, as well as the prohibition on unsolicited mailings to those with a professional interest in the products, while taking care not to permit unsolicited mailings to other persons. 1. It is undeniable that the government has a substantial interest in aiding parents' efforts to discuss sensitive and important subjects such as birth control with their children. "(C)onstitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. * * * The legislature (can) properly conclude that parents and others * * * who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility." Ginsberg v. New York, 390 U.S. 629, 639 (1968). Many parents have strong moral and religious views concerning how their children should be educated about contraception and related subjects. Moreover, when sensitive subjects like contraception are involved, it is particularly important to prevent interference with the lines of communication between parents and children. See H.L. v. Matheson, 450 U.S. 398, 410 (1981), quoting Bellotti v. Baird, 443 U.S. 622, 637 (1979) ("(P)arents have an important 'guiding role' to play in the upbringing of their children * * * which presumptively includes counseling them on important decisions."). See also New York v. Ferber, supra, slip op. 9; id. at 10, citing FCC v. Pacifica Foundation, 438 U.S. 726 (1978) ("(T)he government's interest in the 'well-being of its youth' justifie(s) special treatment of indecent broadcasting received by adults as well as children."); Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 (1975). Unsolicited advertisements for contraceptives can work a "direct interference with the parental guidance that is especially appropriate in this sensitive area of child development" (Carey v. Population Services International, supra, 431 U.S. at 708 (Powell, J., concurring)). Section 3001(e)(2) is an effort by Congress to ensure that if parents so desire, they -- not appellee or another manufacturer engaged in an effort to promote its wares -- will introduce their children to the subject of contraception and instruct them on that subject. "It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural." Moore v. City of East Cleveland, 431 U.S. 494, 503-504 (1977) (pluraltiy opinion) (emphasis added). The district court was plainly correct in finding that Section 3001(e)(2) directly helps "prevent (contraceptive advertisements) from falling into the hands of the children of addressees who do not wish their children to be exposed to (them)" (J.S. App. 11a). As this Court has recognized, postal customers routinely receive large amounts of unsolicited commercial mail (Rowan v. Post Office Department, 397 U.S. 728, 736 (1970)); such mail can reach "avalanche" proportions (J.S. App. 12a). Presumably, many addressees do not examine this mail immediately with care, but they also do not automatically dispose of unsolicited commercial mail without reading it all; otherwise, advertisers would not find it worth sending. Consequently, many parents will not know that unsolicited promotional discussions of contraceptives are arriving in their homes. Even if they do know, it is unreasonably burdensome to expect parents to monitor this large volume of mail from the time it arrives at the home, and to examine every piece to determine if it must be placed beyond their children's reach. In this respect, unsolicited commercial mail is a particularly intrusive medium. See Metromedia, Inc. v. City of San Diego, supra, 453 U.S. at 501, quoting Kovacs v. Cooper, 336 U.S. 77, 97 (1949) (Jackson, J., concurring) ("Each method of communicating * * * is 'a law unto itself' and that law must reflect the 'differing natures, values, abuses and dangers' of each method."). /12/ Unsolicited mail ordinarily arrives directly at the family's residence; unlike a drugstore display or even a billboard (see Carey v. Population Services International, supra, 431 U.S. at 717 (Stevens, J., concurring)), a family cannot avoid it. The Court has permitted close regulation of the broadcast media in part precisely because they "confront() the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder" (FCC v. Pacifica Foundation, supra, 438 U.S. at 748); and unlike messages on those media, the arrival and availability of unsolicited mail cannot be scheduled for times when children are unlikely to be exposed to it. /13/ Appellee argued in the district court (see J.S. App. 11a-12a) that these interests cannot be advanced in support of Section 3001 (e)(2) because that statute does not prevent noncommercial messages -- for example, pamphlets from organizations advocating a certain position on birth control as a social or ideological matter -- from reaching children. But it is plainly reasonable for Congress to determine that parents' discussions of a sensitive subject with their children, while not isolated from the wide range of information and communication left untouched by Section 3001(e)(2), should at least be free from the "unwarranted * * * intrusion" (Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)) of inappropriate "junk mail" and unwanted, commercially motivated, solicitations. Unlike mailings intended as a contribution to a public debate, the form and content of the advertisements regulated by Section 3001(e)(2) are dictated solely by the sender's commercial interest in selling his product. It was reasonable for Congress to conclude that such advertisements are more of a potential interference with parents' efforts to instruct their children than the economically disinterested advocacy of a social or political view. Compare Ohralik v. Ohio State Bar Association, supra, with In re Primus, supra. In addition, as the district court noted, commercial mailers, because of "the profit motive that fuels" them, are likely to be more persistent and aggressive and to mail in larger quantities (J.S. App. 12a, citing Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, supra, 425 U.S. at 771-772 n.24; Bates v. State Bar, supra, 433 U.S. at 380-381). This too suggests that commercial mailings constitute more of a potential interference with the relationship between parents and children. See also Metromedia, Inc. v. City of San Diego, supra, 453 U.S. at 511-512 (municipality need not regulate all speech that interferes with the objectives it seeks to promote). Even if noncommercial mailings do impair the same interests, to the same degree, as commercial mailings, the First Amendment may require that the cost be borne in the case of speech that is entitled to full constitutional protection. The Postal Service has therefore made it clear that social and political advocacy is exempt from the prohibitions of Section 3001(e)(2). See pages 13-14 and note 6, supra. But this Court has always held that commercial speech is entitled to less protection than speech advocating a social or political cause. See page 15, supra. For essentially this reason, the Court long ago ruled that the intrusions of house-to-house solicitation would have to be suffered at the hands of a person exercising rights fully protected by the First Amendment (Martin v. City of Struthers, 319 U.S. 141 (1943)) but not when the speaker was engaged in commercial solicitation (Breard v. Alexandria, 341 U.S. 622, 641-643 (1951)). 2. The government also has a substantial interest in shielding all recipients of mail from materials that they are likely to find offensive. We recognize that this is a problematic reason for regulating expression; little would be left of the First Amendment if speech could be banned whenever some might find it offensive. See, e.g., NAACP v. Claiborne Hardware Co., No. 81-202 (July 2, 1982), slip op. 23-25, citing Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971); Cohen v. California, 403 U.S. 15 (1971). But the Court has ruled that when expression enters the home, its potential offensiveness is a proper reason for regulation. See Consolidated Edison Co. v. Public Service Commission, supra, 447 U.S. at 541-542; /14/ FCC v. Pacifica Foundation, supra, 438 U.S. at 748; Erznoznik v. City of Jacksonville, supra, 422 U.S. at 209; Bigelow v. Virginia, supra, 421 U.S. at 828; Rowan v. Post Office Department, supra. Moreover, Congress should have greater freedom in regulating potentially offensive commercial speech, especially if -- as here -- there is no danger that the expression is being restricted because Congress disagrees with an implicit message it conveys. Since commercial speech is entitled to less constitutional protection, and the costs of suppression are primarily economic, /15/ there is far less reason to allow a speaker to use an offensive form of communication to draw attention to its message. See Cohen v. California, supra, 403 U.S. at 24-26. Indeed, one of the principal reasons for permitting speakers to use offensive expression -- that it allows them to express "otherwise inexpressible emotions" (id. at 26) -- is simply inapplicable to commercial speech. For the Court to hold that the potential offensiveness of a commercial advertisement cannot justify a regulation would, therefore, be a significant expansion of the constitutional protection afforded commercial speech. Here, as we have said, there is no basis for concluding that Congress acted out of hostility to the advocacy or practice of contraception, or that Congress intended to interfere with full public debate on the issue. Decisions about contraception are constitutionally protected because they are personal and intimate, and of particular importance to the individual (Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Griswold v. Connecticut, 381 U.S. 479, 484-486 (1965)); a commercial treatment of such a private and sensitive subject may well give offense to many. /16/ Furthermore, Section 3001(e)(2) regulates only expression that enters the home -- in, as we have explained, a particularly intrusive fashion. The Court has said of unsolicited mail (Rowan v. Post Office Department, supra, 397 U.S. at 738): That we are often "captives" outside the sanctuary of the home and subject to objectionable speech * * * does not mean we must be captives everywhere. * * * The asserted right of a mailer * * * stops at the outer boundary of every person's domain. See also Carey v. Brown, 447 U.S. 455, 471 (1980). Finally, the government's interest in not subjecting citizens to offensive material is particularly strong when the government itself is being made the cause of the intrusion through a "government-created forum()" (Metromedia, Inc. v. City of San Diego, supra, 453 U.S. at 514 n.19) -- the Postal Service -- that is normally subject to its plenary control. See United States Postal Service v. Council of Greenburgh Civic Associations, supra, 453 U.S. at 126-131; see Consolidated Edison Co. v. Public Service Commission, supra, 447 U.S. at 540 ("the special interests of a government in overseeing the use of its property"). See also Lehman v. City of Shaker Heights, 418 U.S. 298 (1974). The district court, while not denying that potential offensiveness might justify regulating the mass mailing of contraceptive advertisements, dealt with the problem by explicitly limiting its holding to "tasteful" advertisements (J.S. App. 2a). The district court found that appellee's materials were tasteful, and it intimated that Section 3001(e)(2) might properly be enforced against "tasteless" advertisements (J.S. App. 14a n.8). See also Motion to Affirm 2-3. Whether or not appellee's materials are in some sense "tasteful," the difficulties of this approach are obvious. Any attempt to distinguish between "tasteful and "tasteless" advertisements would offend First Amendment values by "increas(ing) opportunities for the content-based censorship disfavored by the First Amendment" (New York v. Ferber, supra, slip op. 1 (O'Connor, J., concurring)). Indeed, any such distinction would almost certainly be unconstitutionally vague, a "broad invitation to subjective or discriminatory enforcement" (Grayned v. City of Rockford, 408 U.S. 104, 113 (1972); see, e.g., Coates v. Cincinnati, 402 U.S. 611 (1971)). /17/ For these reasons, it must be assumed that, without Section 3001(e)(2), "tasteless" as well as "tasteful" advertisements will be mailed to people who do not wish to receive them. /18/ Section 3001(e)(2) thus significantly furthers the government's substantial interest in preventing offensive material from reaching unwilling recipients. C. Section 3001(e)(2) Is No More Burdensome Than Necessary to Serve These Interests Although the district court found that "the Government does have a substantial interest to be achieved by this statute" (J.S. App. 10a), the court invalidated Section 3001(e)(2) because it believed it had "devised" a less restrictive alternative (id. at 17a). This alternative essentially consists of allowing advertisements for contraceptives to be mailed to homes that do not request them, if the advertisements are (i) on the inside pages of -- and not graphically dominant in -- a flyer that advertises other products, or (ii) enclosed in an envelope that notifies the recipient of the contents, states that they are unsolicited, and gives the recipient an opportunity to have his name removed from the sender's mailing list (id. at 13a-15a). 1. As we have explained, appellee and other advertisers of contraceptive products are free to use a premailing to ask postal customers to solicit their advertisements. Appellee has no legitimate interest in sending unsolicited advertisements for contraceptives to unwilling recipients (see page 20, supra). Thus, the only gain from the district court's approach -- the only respect in which it is even arguably less restrictive than Section 3001(e)(2) -- is that instead of using a pre-mailing, appellee would be able to mail advertisements directly to people who are not sufficiently interested to request them. This modest benefit plainly does not offset the substantial costs and risks of the district court's approach. The district court conceded (see J.S. App. 18a) that its suggested alternative is not equally effective in achieving the objectives of Section 3001(e)(2); the court acknowledged, for example, that a "prominent," explicit notice on the outside of the envelope (J.S. App. 15a) might increase the risk of advertisements falling into the hands of children (ibid). Such a notice might also make the mailings more offensive to many recipients. Moreover, the principal effect of the district court's alternative is that instead of appellee's bearing the burden of conducting an additional mailing to determine who wants to receive its advertisements, unwilling recipients would bear the burden of notifying appellee or the Postal Service that they do not wish to receive them. The district court did not explain why this cost should be placed on the unwilling recipients, instead of being treated as a cost of advertising. In addition, the government would incur the costs of administering the district court's scheme. And the district court's suggestion that unwilling recipients be permitted to cut off further mailings remains less effective than Section 3001(e) (2); a recipient would, in practice, have to receive at least one offensive mailing before he could invoke the protection Section 3001(e)(2) now affords automatically. /19/ See also page 7 note 5, supra. Finally, under the district court's approach, an addressee who objected to contraceptive advertisements would "have his name removed from the (mailer's) mailing list" entirely (J.S. App. 15a). The result would be to deprive the recipient of information about the mailer's other products. /20/ As we have explained, this is precisely the sort of deprivation that the constitutional protection for commercial speech is designed to prevent. Thus not only is the district court's alternative not as effective in promoting the objectives of Section 3001(e)(2); in many circumstances, it may also be more, not less, restrictive of First Amendment freedoms. 2. The district court's approach also suffers from a more fundamental flaw. "The logic of * * * elaborate less-restrictive-alternative arguments" like the district court's "could raise insuperable barriers to the exercise of virtually all (regulatory) powers" (United States v. Martinez-Fuerte, 428 U.S. 543, 557 n.12 (1976)) that affect First Amendment rights. The district court was explicit in viewing "least restrictive alternative" analysis as a broad invitation to duplicate the task Congress performed when it considered the problems that gave rise to Section 3001(e)(2), balanced the relevant interests, and enacted a regulatory scheme (see J.S. App. 18a). But when legislation regulating speech is challenged, it will almost always be possible to "devise" some alternative approach that is arguably less restrictive and that arguably promotes some of the government's interests almost as well as the approach Congress chose. "A judge would be unimaginative indeed if he could not come up with something a little less 'drastic' or a little less 'restrictive' in almost any situation, and thereby enable himself to vote to strike legislation down" (Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173, 188-189 (1979) (Blackmun, J., concurring)). This Court has made it clear that even when a regulation affects fully protected speech, a court should not, in the guise of determining whether the regulation is sufficiently precise, simply duplicate Congress's function or second-guess its regulatory approach. See United States v. Robel, 389 U.S. 258, 267-268 & n.20 (1967). There is even less justification for invalidating a regulation of commercial speech on the ground that the court can devise an alternative it prefers; not only is commercial speech of less intrinsic worth, but the economic interest of commercial speakers gives them an incentive to seek alternative means of communicating (see pages 18-19, supra), thus making the excessive breadth of a regulation less harmful. Accordingly, in commercial speech cases, this Court has invalidated a measure because there was a "less restrictive alternative" only in certain limited circumstances. First, if a legislature (or a regulatory body) overreacts to a discrete problem by enacting an absolute prohibition on an entire category of expression, the Court has intervened. It has pointed out that the government's articulated reason does not support an absolute ban, and that the government could enact a more limited restriction without impairing its interests at all. See, e.g., Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 570; Bates v. State Bar, supra, 433 U.S. at 372-373. See also Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981). It is appropriate for a court to intervene in such circumstances, both because of the indications that the regulation did not take sufficient account of First Amendment interests (cf. In re R.M.J., supra, slip op. 14-15 (suggesting that the regulation might have been upheld if the record showed "a failed effort to proceed along * * * a less restrictive path"); Bates v. State Bar, supra, 433 U.S. at 371 ("(H)abit and tradition are not in themselves an adequate answer to a constitutional challenge.")), and because an absolute ban will prevent advertisers from exploring alternative means of communicating commercial information to consumers. Second, the Court has insisted that a legislature use a less restrictive alternative when its regulation of commercial speech was designed to influence behavior by suppressing information. See, e.g., Central Hudson Gas & Electric Corp. v. Public Service Commission, supra, 447 U.S. at 570-571, citing Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968), cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969); Bates v. State Bar, supra, 433 U.S. at 375; Linmark Associates, Inc. v. Township of Willingboro, supra, 431 U.S. at 96-97. The Court has explained that the less restrictive "alternative is to assume that * * * information is not in itself harmful, (and) that people will perceive their own best interests if only they are well enough informed." Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra, 425 U.S. at 770. In other words, "less restrictive alternative" analysis is a means of enforcing the principle that "'the fitting remedy for evil counsels is good ones'" (Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring), quoted in Ohralik v. Ohio State Bar Association, supra, 436 U.S. at 457; see, e.g., Bates v. State Bar, supra, 433 U.S. at 375 ("(T)he preferred remedy is more disclosure, rather than less.")). Section 3001(e)(2) fits neither of these patterns. It is not an absolute prohibition. It leaves open abundant alternative means for appellee and others to communicate information about their products, and appellee is free to seek new ways of advertising that are consistent with Section 3001(e). Far from being a broad legislative overreaction to a specific problem, Section 3001(e)(2) greatly narrowed a regulatory scheme Congress considered excessively restrictive. Finally, as we have said, Section 3001(e)(2) is not an effort to affect behavior by restricting the flow of information; its "justification" is based not "on the benefits of public ignorance" (Bates v. State Bar, Supra, 443 U.S. at 375) but on the potential interference with parents' efforts to educate their children, and the potential offensiveness that accompanies a particularly intrusive manner of circulating commercial advertisements about contraceptives. Thus, the government's interests cannot be promoted by providing more speech instead of less. In sum, Section 3001(e)(2) is a narrow measure that deals in the most obvious and direct fashion with specific problems that Congress has a substantial interest in averting, and that does not violate any basic principles of the First Amendment by trying to keep the public in ignorance. The district court believed its alternative regulatory scheme struck a better balance among the competing interests, but that does not make Section 3001(e)(2) unconstitutional. See Metromedia, Inc. v. City of San Diego, supra, 453 U.S. at 508 (plurality opinion) ("If the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them."). CONCLUSION The judgment of the district court should be reversed. Respectfully submitted. REX E. LEE Solicitor General KENNETH S. GELLER Deputy Solicitor General DAVID A. STRAUSS Assistant to the Solicitor General AUGUST 1982 /1/ 39 U.S.C. 3001(e)(1) places a similar prohibition on the unsolicited mailing of contraceptive devices. /2/ The DMM, which is issued pursuant to the Postal Service's broad power to adopt regulations (39 U.S.C. 401), is incorporated by reference into 39 C.F.R. Part 111. Postal Service regulations provide that an administrative proceeding to determine whether certain materials are mailable may be instituted before an administrative law judge or the Postal Service's Judicial Officer. See 39 C.F.R. Part 953. In addition, 18 U.S.C. 1461 makes it a crime "knowingly (to) use() the mails for the mailing, carriage in the mails, or delivery of anything declared by * * * section 3001(e) of title 39 to be nonmailable * * *." /3/ Examples of these materials are reproduced at J.A. 16-19, 21-39, 42-45 and Mot. to Aff. App. 3-6, 8-29. /4/ In Central Hudson, this Court identified a "four-part analysis" that has been applied to restrictions on commercial speech (447 U.S. at 566; see J.S. App. 9a-10a): At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. /5/ 39 U.S.C. 3008(a) provides: Whoever for himself, or by his agents or assigns, mails or causes to be mailed any pandering advertisement which offers for sale matter which the addressee in his sold discretion believes to be erotically arousing or sexually provocative shall be subject to an order of the Postal Service to refrain from further mailings of such materials to designated addressees thereof. The constitutionality of this statute was upheld in Rowan v. Post Office Department, 397 U.S. 728 (1970). The addressee has "unreviewable discretion * * * to determine whether or not the advertisement (is) 'erotically arousing or sexually provocative'" (id. at 739 n.6), and his certification to that effect is final; there is no "power to make any discretionary evaluation of the material in a(ny) governmental official" (id. at 737). The district court appears not to have recognized, however, that the plain language of the statute, and the implementing regulations (DMM Section 123.611), require the addressee to certify that the material is erotically arousing or sexually provocative, and some addressees may be unwilling to make such a representation about advertisements of the sort in issue here. See Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev. 81, 85 n.17 (1978). /6/ In Associated Students v. Attorney General, 368 F.Supp. 11 (C.D. Cal. 1973), a three-judge district court held that the prohibition on the mailing of "advertisements" in Section 3001(e)(2) could not constitutionally be "expand(ed) * * * beyond the () commercial sense" of the term (id. at 24) and had to be interpreted in a way that "recognize(d) the inherent difference between commercial solicitation on one hand and informative editorializing on the other" (id. at 23). The Postal Service accepts this holding, and it issued DMM Section 123.434, confining Section 3001(e)(2) to advertisements in which the mailer has a commercial interest (see page 4, supra), to make this interpretation clear. See Reply Memorandum for the Appellants at 2. /7/ See International Longshoremen's Association v. Allied International, Inc., No. 80-1663 (Apr. 20, 1982), slip op. 13-14; Ohralik v. Ohio State Bar Association, supra, 436 U.S. at 456, citing Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949) ("(T)he State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity."). /8/ See also Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 540 (1981) (Brennan, J., concurring in the judgment) ("I have no doubt that those who seek to convey commercial messages will engage in the most imaginative of exercises to place themselves within the safe haven of noncommercial speech, while at the same time conveying their commercial message."). /9/ By contrast, the cost to consumers of the ban on advertising of drug prices invalidated in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra, was very substantial (see 425 U.S. at 766 n.20), probably several million dollars annually. See Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va. L. Rev. 1, 26-28 & n.92 (1979). /10/ Even though Section 3001(e)(2) regulates unsolicited advertisements for contraceptives and not for other products, we believe it is incorrect to view Section 3001(e)(2) as a "content-based" restriction for First Amendment purposes (see generally Consolidated Edison Co. v. Public Service Commission, supra, 447 U.S. at 535-541). Advertising for one product or service may present different concerns from advertising for another product or service; common sense dictates that Congress and state legislatures be allowed to take account of these differences, and the Court has never suggested otherwise. When striking down a ban on advertisements of prescription drug prices, for example (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra), the Court did not suggest that a state would violate the Constitution if it treated advertisements for drugs differently from advertisements for automobiles or groceries, or regulated pharmacists differently from businessmen. See 425 U.S. at 773 n.25. In analyzing regulations of professional advertising (see In re R.M.J., supra; Ohralik v. Ohio State Bar Association, supra; Bates v. State Bar, supra), the Court has never suggested that a state must regulate advertising by doctors or accountants in the same way as it regulates advertising by lawyers. Indeed, a plurality of the Court recently endorsed a state's power to distinguish among categories of commercial speech on the basis of content, not because of the different regulatory problems presented but because the state simply "chose() to value one kind of commercial speech * * * more than another" (Metromedia, Inc. v. City of San Diego, 453 U.S. at 512), even though a comparable distinction among categories of noncommercial speech would be unconstitutional (see id. at 574-575). We do not assert that commercial speech about contraceptives is intrinsically less valuable than other forms of commercial speech; our contention is that unsolicited mailings of contraceptive advertisements present legitimate regulatory concerns, unrelated to Congress's valuation of the content of the speech, that do not arise in connection with other unsolicited commercial mailings. See pages 24-33, infra. /11/ By contrast, the prohibition on contraceptive advertising that this Court invalidated in Carey v. Population Services International, supra, was part of a statute that also restricted the sale and distribution of contraceptives. See 431 U.S. at 681 n.1. See also Population Services International v. Wilson, 398 F. Supp. 321, 328 n.7 (S.D.N.Y. 1975) (three-judge court) (state legislature rejected proposal to permit certain advertising). /12/ In Consolidated Edison Co. v. Public Service Commission, supra, the Court held that a state may not prohibit a utility company from including a discussion of controversial public issues as an insert in its electric bills. But there are a number of distinctions between Consolidated Edison and this case. In Consolidated Edison, the "prohibition of discussion of controversial issues (struck) at the heart of the freedom to speak" (447 U.S. at 535); by contrast, Section 3001(e)(2) regulates only commercial speech. In addition, a bill insert is unlikely to escape a recipient's notice in the way that unsolicited commercial mailings often do; a recipient will generally open an envelope containing a bill promptly and examine its contents with care. Precisely because contraception is a "sensitive area of child development" in which "parental guidance is especially appropriate" (Carey v. Population Services International, supra, 431 U.S. at 708 (Powell, J., concurring)), contraceptive advertisements present a greater threat to parents' prerogative to educate their children than a utility's discussion of a controversial public issue would. Indeed, in Consolidated Edison the state did not advance any such justification for its restriction. (One principal justification the state did advance -- that recipients would be offended by the inserts -- applies with far more force to contraceptive advertisements. See page 31, infra.) In any event, there was no suggestion in Consolidated Edison that the state was willing to permit the utility to determine which customers were willing to receive inserts and to mail inserts only to them. See page 19, supra. /13/ In addition, a regulation of the broadcast media generally prevents every listener, willing and unwilling, from hearing a message; a regulation of unsolicited mail permits any person who requests the mailings to obtain them. In this respect, regulation of unsolicited mail presents fewer First Amendment difficulties than regulation of radio or television. See Comment, Pacifica Foundation v. FCC: "Filthy Words," The First Amendment and the Broadcast Media, 78 Colum. L. Rev. 164, 174 (1978). /14/ In Consolidated Edison, the Court considered the potential offensiveness of a utility's bill inserts to be a permissible justification for regulation, but ruled that "the seriousness of the intrusion" (447 U.S. at 541) in that case was insufficient to justify prohibiting the inserts. /15/ See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra, 425 U.S. at 762-764; Jackson & Jeffries, supra, 65 Va. L. Rev. at 14-18. /16/ By contrast, in Carey v. Population Services International, Inc., supra, the justifications for a regulation of advertising for contraceptives -- an absolute ban, in that case -- were "directed not at any commercial aspect of the prohibited advertising but at the ideas conveyed." 431 U.S. at 701 n.28; see id. at 716-717 (Stevens, J., concurring). /17/ Even if administrative criteria for distinguishing "tasteful" from "tasteless" advertisements could somehow be developed, they would be likely, in practice, to permit a good deal of offensive material to reach unwilling recipients. /18/ The district court also suggested (J.S. App. 17a) that advertisers will circulate only "tasteful" advertisements because they will not want to alienate customers. This is too optimistic an estimate, as this Court has noted. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., surpa, 425 U.S. at 765; FCC v. Pacifica Foundation, supra, 438 U.S. at 744 n.19 (plurality opinion). Not only is miscalculating public taste one of the hazards of the advertiser's trade, but many advertisers may find it profitable to engage in practices that are distasteful to most, but that have a strong appeal to certain potential consumers. /19/ See FCC v. Pacifica Foundation, supra, 438 U.S. at 748-749 ("To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow."). See also page 27 note 12, supra. /20/ Even if the addressee could specify that he wished not to receive contraceptive advertisements but to receive other mailings, a mailer might well find it uneconomical to maintain two mailing lists or to print two sets of flyers -- one with and one without advertisements for contraceptives -- so the practical effect of the notification would likely be to cut off all mailings to the objecting addressee.