First Amendment topicsAbout the First Amendment
Free speech is the best medicine
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

Few would associate freedom of speech with pharmacists.

Yet in two cases involving pharmacists — one decided just last week — the U.S. Supreme Court has issued important decisions that help protect the First Amendment and the free flow of information to consumers.

In 1976 the Supreme Court issued a landmark ruling that struck down a Virginia law that barred pharmacists from advertising the price of prescription drugs.

In that historic case, the court held that even commercial speech that “does no more than propose a commercial transaction” is protected by the First Amendment. Until then, advertising enjoyed far less constitutional protection than so-called “political speech.”

In reaching this decision, the court reasoned that consumers’ interest in information about drugs and products may be even greater than interest in ongoing political debates. After all, getting access to affordable medicine can be a key factor in the quality of one’s life.

This commitment to the free flow of consumer information also was evident last week in a case in which the Supreme Court struck down a federal law preventing pharmacies from advertising the availability of compound drugs.

Pharmacists have long combined or mixed drugs to create medications tailored to patients' specific needs. Sometimes this fine-tuning is done, for example, to address individual allergies or other personal circumstances.

The 1997 law permitted this compounding to continue, but told pharmacists they could not advertise the availability of such compounds. The government’s reasoning: It has a strong interest in ensuring that medicines are safe, and compounding should not be used as an end-run around the government’s intensive approval process for new drugs.

Large-scale compounding of medication — coupled with advertising to build demand — would be tantamount to putting a new drug on the market without adequate safeguards, the government maintains.

You can’t quarrel with the government’s motives. Ensuring the quality of drugs and protecting the public welfare should be among government’s priorities.

Unfortunately, good motives don’t always make good law. Under the First Amendment, government can’t limit the speech contained in advertising except under compelling circumstances, and then only after it has exhausted other remedies.

Last week, the Supreme Court told the federal government that it had taken the easy way out, and in doing so, had violated the Constitution. In the words of Justice Sandra Day O’Connor, who wrote the court’s opinion, “If the First Amendment means anything, it means that regulating speech must be a last — not first — resort. Yet here it seems to have been the first strategy the government thought to try.”

The Supreme Court pointed out that the government could have achieved its goals of protecting the public by limiting out-of-state sales or prohibiting compounding without a prescription in hand.

Most of us don’t pay attention to First Amendment cases unless they involve controversy. Can the Nazis march down Main Street? Can pornography be posted on the Internet? Should the Ten Commandments be posted on public buildings?

It’s helpful to remember that there are often less-visible decisions that make fewer headlines, but do make a difference.

The highest court in the land stood up for our right to receive detailed information from our pharmacists and to make informed decisions about our health care. Sometimes the quiet victories can mean the most.

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