Help For WLF From US Supreme Court

The Washington Legal Foundation's First Amendment litigation against the Food and Drug Administration (Marketletter April 22) will be helped by the recent decision of the Supreme Court striking down a state prohibition on advertising of liquor prices (see also page 12), according to WLF chief counsel Glenn Lammi.

The whole rationale of this decision was that, under the First Amendment, the states cannot restrict speech in the way the FDA is currently doing to meet other goals, said Mr Lammi. Protecting public health can be achieved in ways other than restricting free speech, he told the Marketletter, and should not be done by limiting speech to and information for consumers and doctors. The Supreme Court has now spoken clearly against restricting commercial speech unless strongly justified, he commented.

Further Litigation Needed While the opinion was unanimous, there were concurrent opinions that muddied the message, he said. The major opinion was written by Justice Stevens, who is a strong proponent of commercial speech, and some of the other justices might have taken a narrower approach, he said. Further litigation will be needed.