information regarding price of eyeglasses
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- information regarding price of eyeglasses
Written by the judges who cited it.
The opinion
WHELAN, District Judge
(concurring in part and dissenting in part).
I concur in the decision of the majority that Action No. CV 74k-2321 must be dismissed in deference to the pending State proceeding against Terminal Hudson Electronics, Inc. of California dba Opti-Cal.
However, I .respectfully dissent from the holding of the majority in Action No. 74-2079. It would appear clear that under the rulings of the United States Supreme Court that the named Plaintiffs in the latter numbered action are not entitled to a preliminary injunction. The latest expression of the Supreme Court in Bigelow v. Virginia, 421 U.S. 809 , 95 S.Ct. 2222 , 44 L.Ed.2d 600 , speaking through Mr. Justice Blackmun, in fact states in footnote 10 on page 825, on page 2234 of 95 S.Ct. of the opinion:
“Our decision also is in no way inconsistent with our holdings in the Fourteenth Amendment cases that concern the regulation of professional activity. See North Dakota Pharmacy Bd. v. Snyder’s Stores, 414 U.S. 156 [ 94 S.Ct. 407 , 38 L.Ed.2d 379 ] (1973); Head v. New Mexico Board, 374 U.S. 424 [ 83 S.Ct. 1759 , 10 L.Ed.2d 983 ] (1963); Williamson v. Lee Optical Co., 348 U.S. 483 [ 75 S.Ct. 461 , 99 L.Ed. 563 ] (1955); Barsky v. Board of Regents, 347 U.S. 442 [ 74 S.Ct. 650 , 98 L.Ed. 829 ] (1954); Semler v. Dental Examiners, 294 U.S. 608 [ 55 S.Ct. 570 , 79 L.Ed. 1086 ] (1935).”
What seems to be clear from a reading of Bigelow and Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 , 93 S.Ct. 2553 , 37 L.Ed.2d 669 (1973) is that purely commercial speech advertising purely commercial activity carried on within the state prohibiting such advertising is not protected by the First Amendment. In the instant case the advertising sought to be protected by the injunctive process is purely commercial in nature.
Thus it appears that there is no strong likelihood that such Plaintiffs are likely to prevail upon a full trial upon the merits. I would therefore deny the injunction sought.