Only a constitutional amendment can do that. My column in the Pittsburgh Post-Gazette.

Special to the Post-Gazette

Apr 20, 2026

4:30 AM

It is not easy to name the worst Supreme Court decision in American history.The Dred Scott case in 1857 helped bring about the Civil War and its racist restrictions on citizenship remained the law until reversed by the adoption of the Fourteenth Amendment in 1868. The Court upheld Jim Crow segregation, in 1896, and concentration camps for Japanese Americans, in 1944. There are many bad cases.

But one of the Court’s worst decisions in terms of its social impact was Virginia State Board of Pharmacy, issued in 1976. That was the case in which the Court held that commercial advertising is free speech substantially protected by the First Amendment, rendering such advertising virtually unrestricted.

The result has been a plague of gambling addiction and drug dependency.

From business to speech

America needs to overturn the Virginia Pharmacy case by passing a constitutional amendment declaring that commercial advertising is not free speech.

Because amending the American Constitution is very difficult, proposing amendments is almost always a waste of time. To pass an amendment, one needs either a new constitutional convention, which has never happened, or a two-thirds vote in each House of Congress, followed by ratification of the amendment by three-quarters of the states.

This arduous process dooms any proposal that has even a whiff of partisanship. That is why the Citizens United case, which held that corporate political spending constitutes free speech, will not be overturned by a constitutional amendment.

But the Virginia Pharmacy case is different. Almost everyone, in both political parties, is aware of the catastrophic effects of prescription drug and gambling advertising. Restricting that advertising is not a partisan issue. This is a national crisis that cannot be solved without a constitutional amendment, but is easily solved with one.

The Virginia Pharmacy case arose innocently enough. The State of Virginia prohibited pharmacists from advertising the prices of prescription drugs. The consequence was that poor and working people paid more for prescription drugs than did the wealthy, who had access to price information. The ban was challenged by a coalition of consumer groups.

At the time, commercial advertising was treated as just another form of business regulation, where the government enjoys wide regulatory latitude. The Court altered that understanding and treated advertising as speech, thus greatly proscribing the government’s power to enact any restrictions on advertising at all.

That outcome was widely hailed as a victory for vulnerable communities. There is no question that increased competition reduced drug prices.

Then-Justice William Rehnquist was the lone dissent. He predicted that prescription drug advertising would become a staple of mass media advertising.

The dissenter was right

My professors in law school at the time thought Rehnquist was crazy. What would be the point of advertising drugs to consumers when only doctors could prescribe the drugs? It was assumed that doctors would act as a barrier to any inappropriate or excessive consumer demand for drugs.

We can now see how right Rehnquist was. Big Pharma’s relentless advertising campaigns have led to an explosion of consumer demand for prescription drugs. Only two countries in the world, New Zealand and the United States, permit this kind of mass drug advertising and in only one is the government helpless to regulate it. Most medical experts regard the United States as one of the, if not the most, overmedicated country in the world.

Americans are spending too much for drugs we don’t need.

But at least prescription drugs still require a doctor’s approval. It is gambling that has demonstrated just how dangerous unrestrained advertising can be.

In 2018, the U.S. Supreme Court struck down the federal ban on state-authorized sports gambling based on the fact that Congress allowed such gambling in a small number of states.

By itself, this decision was not that harmful since illegal gambling was already widespread.

The harm has come from the ubiquity of sports gambling advertising online that is clearly

targeted at young men. A recent study revealed that one-third of adolescent boys aged 11–17 have engaged in online gambling within the past year.

We have only begun to understand the consequences of this early exposure to gambling.

Under the Virginia Pharmacy case, once an activity is legal, advertising that activity is constitutionally protected. If that approach were reversed by a constitutional amendment, the government would be free to allow gambling and to encourage research into new prescription drugs while prohibiting or greatly limiting the advertising that drives excessive demand in both areas. This would be true of other products as well.

A successful cause

The constitutional amendment would simply state that the freedom of speech shall not be construed to extend to commercial advertising.

Even though this proposed amendment would have widespread bipartisan public support, its passage would not be assured. Civil liberties groups would balk at any limit on freedom of speech, while drug and gambling companies would spend large sums to defeat it.

But a larger coalition could be gathered to support the amendment. It would be composed of those promoting a healthier America and parents worried about the effect of gambling advertising on their children. In the end, I have no doubt which coalition would prevail.

Bruce Ledewitz, a contributing writer for the Post-Gazette’s editorial page, is professor of law emeritus at the Thomas R. Kline School of Law of Duquesne University. He writes every other Monday. The views expressed do not represent those of Duquesne University. His previous article was “Our politics is a world of unreason.”