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METPATH INC. v. IMPERATO

April 17, 1978

METPATH INC., Plaintiff,
v.
PASCAL IMPERATO, M.D., as Commissioner of the Department of Health of the City of New York and Chairman of the Board of Health of the City of New York, the DEPARTMENT OF HEALTH OF THE CITY OF NEW YORK, and the BOARD OF HEALTH OF THE CITY OF NEW YORK, Defendants


Cannella, D.J.


The opinion of the court was delivered by: CANNELLA

CANNELLA, D.J.:

After a bench trial, advanced and consolidated with the hearing on plaintiff's application for a preliminary injunction, the Court declares unconstitutional New York City Health Code § 13.21(h) ["the regulation"] and enjoins defendants from enforcing the ban on advertising by clinical laboratories contained in that regulation. *fn1"

 Jurisdiction is based upon the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343(3), and the Declaratory Judgments Act, 28 U.S.C. § 2201.

 FACTS

 The regulation challenged in this suit provides in full text:

 
A clinical laboratory shall not advertise for patronage to the general public by means of bills, posters, circulars, letters, newspapers, magazines, directories, radio, television, or through any other medium.

 N.Y.C. Health Code § 13.21(h) (1973).

 Plaintiff Metpath Inc. ["Metpath"] is a New York corporation, with its principal place of business in New Jersey, and is a "clinical laboratory" within the meaning of the regulation. During January and February of 1978 Metpath sought permission from defendants to publish a certain advertisement *fn2" in a newspaper of general circulation within the City of New York. The text of the advertisement states that the amount of a certain type of cholesterol, known as high density lipoproteins ["HDL"], in the blood is related to an individual's susceptibility to heart disease. The advertisement also states that Metpath can perform a laboratory test to measure HDL levels in the blood and concludes with the statement: "And even though all laboratory tests must be ordered by a physician, we thought you should know something about us." *fn3"

 Defendants responded to Metpath's inquiries that publication of the advertisement would be a violation of the regulation and could result in revocation of Metpath's clinical laboratory permit as well as criminal prosecution. *fn4"

 Based upon defendants' negative response, Metpath commenced the instant suit, by order to show cause, seeking to declare the regulation unconstitutional. On consent of the parties, trial on the merits was advanced and consolidated with the hearing on Metpath's application for a preliminary injunction. Fed. R. Civ. P. 65(a)(2).

 At a meeting of the New York City Board of Health held subsequent to the filing of this action, its members officially decided that Metpath's publication of the proposed advertisement, in a newspaper of general circulation within the City of New York, would violate the regulation.

 DISCUSSION

 A series of recent Supreme Court opinions establishes beyond peradventure that "commercial" speech is entitled to the protections of the first amendment to the Constitution. *fn5" In the most recent of these opinions, Mr. Justice Blackmun, speaking for the Court, observed

 
that our cases long have protected speech even though it is in the form of a paid advertisement; in a form that is sold for profit; or in the form of a solicitation to pay or contribute money. If commercial speech is to be distinguished, it "must be distinguished by its content." But a consideration of competing interests [reinforces] our view that such speech should not be withdrawn from protection merely because it [proposes] a mundane commercial transaction. Even though the speaker's interest is largely economic, the Court has protected such speech in certain contexts. The listener's interest is substantial: the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. And commercial speech serves to inform the public of the availability, ...

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