OCTOBER TERM, 1995
Syllabus
44 LIQUORMART, INC., ET AL.
v. RHODE ISLAND ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT
No. 94-1140. Argued November 1, 1995-Decided May 13, 1996
Petitioners, a licensed Rhode Island liquor retailer and a
licensed Massachusetts liquor retailer patronized by Rhode Island
residents, filed this action seeking a declaratory judgment that
Rhode Island laws banning the advertisement of retail liquor prices
except at the place of sale violate the First Amendment. In
concluding that the ban was unconstitutional because it did not
directly advance the State's asserted interest in the promotion of
temperance and was more extensive than necessary to serve that
interest, the District Court reasoned that the party seeking to
uphold a restriction on commercial speech carries the burden of
justifying it and that the Twenty-first Amendment did not shift or
diminish that burden. In reversing, the Court of Appeals,
inter
alia, found "inherent merit" in the State's submission that
competitive price advertising would ultimately increase sales, and
agreed with it that the Twenty-first Amendment gave its advertising
ban an added presumption of validity.
Held: The judgment is reversed.
39 F.3d
5, reversed.
JUSTICE STEVENS delivered the opinion of the Court with respect
to Parts I, II, VII, and VIII, concluding:
1. The Twenty-first Amendment cannot save Rhode Island's price
advertising ban because that Amendment does not qualify the First
Amendment's prohibition against laws abridging the freedom of
speech. Although the Twenty-first Amendment-which repealed
Prohibition and gave the States the power to prohibit commerce in,
or the use of, alcoholic beverages-limits the dormant Commerce
Clause's effect on a State's regulatory power over the delivery or
use of liquor within its borders, the Amendment does not license
the States to ignore their obligations under other constitutional
provisions. See,
e. g., Capital Cities Cable, Inc. v.
Crisp, 467 U.
S. 691,712.
California v.
LaRue, 409 U. S. 109,
118-119, disavowed. Because the First Amendment must be included
among those other provisions, the Twenty-first Amendment does not
shield the advertising ban from constitutional scrutiny. Pp.
514-516.
2. Because Rhode Island has failed to carry its heavy burden of
justifying its complete ban on price advertising, that ban is
invalid. P. 516.
485
JUSTICE STEVENS delivered the principal opinion with respect to
Parts III-VI, concluding that Rhode Island's ban on advertisements
that provide the public with accurate information about retail
liquor prices is an unconstitutional abridgment of the freedom of
speech. Pp. 495-514.
(a) JUSTICE STEVENS, joined by JUSTICE KENNEDY, JUSTICE SOUTER,
and JUSTICE GINSBURG, concluded in Part III that although the First
Amendment protects the dissemination of truthful and nonmisleading
commercial messages about lawful products and services in order to
ensure that consumers receive accurate information, see,
e.
g., Virginia Ed. of Pharmacy v.
Virginia Citizens
Consumer Council, Inc.,
425 U. S. 748,765, the
special nature of commercial speech, including its "greater
objectivity" and "greater hardiness," authorizes the State to
regulate potentially deceptive or overreaching advertising more
freely than other forms of protected speech, see,
e.
g., id., at 771772, n. 24, and requires less than strict
review of such regulations,
Central Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n of N. Y.,
447 U. S. 557, 566, n. 9.
However, regulations that entirely suppress commercial speech in
order to pursue a policy not related to consumer protection must be
reviewed with "special care," and such blanket bans should not be
approved unless the speech itself was flawed in some way, either
because it was deceptive or related to unlawful activity. See
ibid. Pp. 495-500.
(b) JUSTICE STEVENS, joined by JUSTICE KENNEDY and JUSTICE
GINSBURG, concluded in Part IV that a review of the case law
reveals that commercial speech regulations are not all subject to a
similar form of constitutional review simply because they target a
similar category of expression. When a State regulates commercial
messages to protect consumers from misleading, deceptive, or
aggressive sales practices, or requires the disclosure of
beneficial consumer information, the regulation's purpose is
consistent with the reasons for according constitutional protection
to commercial speech and therefore justifies less than strict
review. However, where a State entirely prohibits the dissemination
of truthful, nonmisleading commercial messages for reasons
unrelated to the preservation of a fair bargaining process, there
is far less reason to depart from the rigorous review that the
First Amendment generally demands. The special dangers that attend
such complete bans-including, most obviously, the fact that they
all but foreclose alternative channels of communication-present
sound reasons that justify more careful review. Pp. 501-504.
(c) JUSTICE STEVENS, joined by JUSTICE KENNEDY, JUSTICE SOUTER,
and JUSTICE GINSBURG, concluded in Part V that because Rhode
Island's advertising ban constitutes a blanket prohibition against
truthful, nonmisleading speech about a lawful product, and serves
an end
486
unrelated to consumer protection, it must be reviewed with
"special care" under
Central Hudson, 447 U. S., at 566, n.
9. It cannot survive that review because it does not satisfy even
the less than strict standard that generally applies in commercial
speech cases under
Central Hudson, id., at 566. First, the
advertising ban does not directly advance the State's substantial
interest in promoting temperance. See
ibid. Because a
commercial speech regulation may not be sustained if it provides
only ineffective or remote support for the government's purpose,
id., at 564, the State bears the burden of showing not
merely that its regulation will advance its interest, but also that
it will do so "to a material degree," see,
e. g., Edenfield
v.
Fane, 507
U. S. 761, 767. In this case, therefore, the State must show
that the ban will
significantly reduce alcohol consumption,
but has presented no evidence to suggest a significant reduction.
Second, the ban is more extensive than necessary to serve its
stated interest, see 447 U. S., at 566, since alternative forms of
regulation that would not involve any speech restrictions--e.
g., the maintenance of higher prices either by direct
regulation or by increased taxation, the rationing of per capita
purchases, or the use of educational campaigns focused on drinking
problems-would be more likely to achieve the goal of promoting
temperance. Thus, the State has failed to establish the requisite
"reasonable fit" between its regulation and its goal. See,
e.
g., Board of Trustees, State Univ. of N. Y. v.
Fox,
492 U. S. 469,
480. Pp. 504-508.
(d) JUSTICE STEVENS, joined by JUSTICE KENNEDY, JUSTICE THOMAS,
and JUSTICE GINSBURG, concluded in Part VI that the State's
arguments in support of its claim that it merely exercised
appropriate "legislative judgment" in determining that a price
advertising ban would best promote temperance-i.
e., (1)
that because expert opinions as to the effectiveness of the ban "go
both ways," the Court of Appeals correctly concluded that the ban
constituted a "reasonable choice" by the legislature; (2) that
precedent requires that particular deference be accorded that
legislative choice because the State could, if it chose, ban the
sale of alcoholic beverages outright; and (3) that deference is
appropriate because alcoholic beverages are so-called "vice"
products-must be rejected. See
Rubin, 514 U. S., at 482-483,
n. 2.
United States v.
Edge Broadcasting, 509 U. S. 418,
distinguished;
Posadas de Puerto Rico Associates v.
Tourism Co. of P. R., 478 U. S. 328,
distinguished and disavowed in part. Pp. 508-514.
JUSTICE SCALIA concluded that guidance as to what the First
Amendment forbids, where the core offense of suppressing particular
political ideas is not at issue, must be taken from the long
accepted practices of the American people. See
McIntyre v.
Ohio Elections Comm'n, 514 U. S. 334, 375 (SCALIA, J.,
dissenting). Since, however, the Court has before it no evidence as
to state legislative practices regarding regula-
487
tion of commercial speech when the First and Fourteenth
Amendments were adopted, or even as to any national consensus on
the subject later developed, he would simply adhere to the Court's
existing jurisprudence, which renders the Rhode Island regulation
invalid. Pp. 517-518.
JUSTICE THOMAS concluded that in cases such as this, in which
the government's asserted interest is to keep legal users of a
product or service ignorant in order to manipulate their choices in
the marketplace, the
Central Hudson balancing test should
not be applied. Rather, such an "interest" is
per se
illegitimate, cf.,
e. g., Virginia Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 768-770,
and can no more justify regulation of "commercial" speech than it
can justify regulation of "noncommercial" speech. Pp. 518-528.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE SOUTER,
and JUSTICE BREYER, agreed with the principal opinion that Rhode
Island's prohibition on alcohol-price advertising is invalid and
cannot be saved by the Twenty-first Amendment, but concluded that
the First Amendment question must be resolved more narrowly by
applying the test established in
Central Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n of N. Y.,
447 U. S. 557, 566.
Assuming that the prohibition satisfies the test's first three
prongs-i.
e., that (1) the speech at issue concerns lawful
activity and is not misleading, (2) the asserted governmental
interest is substantial, and (3) the regulation directly advances
the governmental interest-Rhode Island's regulation fails the final
fourth prong because its ban is more extensive than necessary to
serve its stated interest. Rhode Island justifies its ban on price
advertising on the ground that the ban is intended to keep alcohol
prices high as a way to keep consumption low. In order for a speech
restriction to pass muster under the fourth prong, there must be a
reasonable fit between the legislature's goal and method.
Board
of Trustees of State Univ. of N. Y. V.
Fox, 492 U. S. 469, 480. The
fit here is not reasonable, since the State has other methods at
its disposal-e.
g., establishing minimum prices and/or
increasing sales taxes on alcoholic beverages-that would more
directly accomplish its stated goal without intruding on sellers'
ability to provide truthful, nonmisleading information to
customers.
Posadas de Puerto Rico Associates V.
Tourism
Co. of P. R., 478
U. S. 328, 341-344, distinguished. The principal opinion errs
in adopting a new analysis for the evaluation of commercial speech
regulation. Pp. 528-534.
STEVENS, J., announced the judgment of the Court, and delivered
the opinion of the Court with respect to Parts I, II, and VII, in
which SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined,
the opinion of the Court with respect to Part VIII, in which
SCALIA, KENNEDY, SOUTER, and GINSBURG, JJ., joined, an opinion with
respect to Parts III and V, in
488
which KENNEDY, SOUTER, and GINSBURG, JJ., joined, an opinion
with respect to Part VI, in which KENNEDY, THOMAS, and GINSBURG,
JJ., joined, and an opinion with respect to Part IV, in which
KENNEDY and GINSBURG, JJ., joined. SCALIA, J.,
post, p. 517,
and THOMAS, J.,
post, p. 518, filed opinions concurring in
part and concurring in the judgment. O'CONNOR, J., filed an opinion
concurring in the judgment, in which REHNQUIST, C. J., and SOUTER
and BREYER, JJ., joined,
post, p. 528.
Evan T. Lawson argued the cause and filed briefs for
petitioners.
Rebecca Tedford Partington, Special Assistant Attorney
General, argued the cause and filed a brief for respondent State of
Rhode Island.
Lauren E. Jones, Caroline Cole Cornwell, William
P. Gasbarro, and
Robert M. Brady filed a brief for
respondent Rhode Island Liquor Stores Association. *
JUSTICE STEVENS announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I, II,
VII, and VIII, an opinion with respect to Parts III and V, in which
JUSTICE KENNEDY, JUSTICE SOUTER, and
*Briefs of amici curiae urging reversal were filed for the
American Advertising Federation et al. by Richard E. Wiley, Andrew
Krulwich, Howard H. Bell, Daniel E. Troy, John F. Kamp, David S.
Versfelt, Slade Metcalf, and Robert L. Sherman; for the American
Civil Liberties Union et al. by Marjorie Heins and Steven R.
Shapiro; for the Association of National Advertisers, Inc., et al.
by Burt Neuborne, Gilbert H. Weil, Valerie Schulte, and John F.
Kamp; for the Beer Institute et al. by John
J. Walsh, Steven
G. Brody, and Mary Elizabeth Taylor; for the Institute for Justice
by William H. Mellor III and Clint Bolick; and for the Washington
Legal Foundation et al. by Daniel
J. Popeo, Paul D. Kamenar,
and Martin H. Redish.
Briefs of
amici curiae urging affirmance were filed for
the Council of State Governments et al. by
Richard Ruda and
Lee Fennell; and for the Malt Beverage Distributors
Association of Pennsylvania.
P. Cameron DeVore, John F. Sturm, Rene P. Milam, Ralph P. Huber,
Jerry S. Birenz, Andrew A. Merdek, Jonathan E. Thackeray, and
George Freeman filed a brief for the Newspaper Association of
America et al. as amici curiae.
489
JUSTICE GINSBURG join, an opinion with respect to Part VI, in
which JUSTICE KENNEDY, JUSTICE THOMAS, and JUSTICE GINSBURG join,
and an opinion with respect to Part IV, in which JUSTICE KENNEDY
and JUSTICE GINSBURG join.
Last Term we held that a federal law abridging a brewer's right
to provide the public with accurate information about the alcoholic
content of malt beverages is unconstitutional.
Rubin v.
Coors Brewing Co., 514 U. S. 476, 491
(1995). We now hold that Rhode Island's statutory prohibition
against advertisements that provide the public with accurate
information about retail prices of alcoholic beverages is also
invalid. Our holding rests on the conclusion that such an
advertising ban is an abridgment of speech protected by the First
Amendment and that it is not shielded from constitutional scrutiny
by the Twenty-first Amendment.1
I
In 1956, the Rhode Island Legislature enacted two separate
prohibitions against advertising the retail price of alcoholic
beverages. The first applies to vendors licensed in Rhode Island as
well as to out-of-state manufacturers, wholesalers, and shippers.
It prohibits them from "advertising in any manner whatsoever" the
price of any alcoholic beverage offered for sale in the State; the
only exception is for price tags or signs displayed with the
merchandise within licensed premises and not visible from the
street.2 The second stat-
1 Although the text of the First Amendment states that "Congress
shall make no law ... abridging the freedom of speech, or of the
press," the Amendment applies to the States under the Due Process
Clause of the Fourteenth Amendment. See
Board of Ed., Island
Trees Union Free School Dist. No. 26 v.
Pico, 457 U. S. 853, 855, n. 1
(1982);
Grosjean v.
American Press Co., 297 U. S. 233, 244
(1936);
Gitlow v.
New York, 268
2 Rhode Island Gen. Laws §3-8-7 (1987) provides:
"Advertising price of malt beverages, cordials, wine or
distilled liquor.No manufacturer, wholesaler, or shipper from
without this state and no holder of a license issued under the
provisions of this title and chapter
490
ute applies to the Rhode Island news media. It contains a
categorical prohibition against the publication or broadcast of any
advertisements-even those referring to sales in other States-that
"make reference to the price of any alcoholic beverages."3
In two cases decided in 1985, the Rhode Island Supreme Court
reviewed the constitutionality of these two statutes. In
S&S
Liquor Mart, Inc. v.
Pastore, 497 A. 2d 729, a liquor
retailer located in Westerly, Rhode Island, a town that borders the
State of Connecticut, having been advised that his license would be
revoked if he advertised his prices in a Connecticut paper, sought
to enjoin enforcement of the first statute. Over the dissent of one
justice, the court upheld the statute. It concluded that the
statute served the substantial state interest in "'the promotion of
temperance.'''4
Id., at
shall cause or permit the advertising in any manner whatsoever
of the price of any malt beverage, cordials, wine or distilled
liquor offered for sale in this state; provided, however, that the
provisions of this section shall not apply to price signs or tags
attached to or placed on merchandise for sale within the licensed
premises in accordance with rules and regulations of the
department."
Regulation 32 of the Rules and Regulations of the Liquor Control
Administrator provides that no placard or sign that is visible from
the exterior of a package store may make any reference to the price
of any alcoholic beverage. App. 2 to Brief for Petitioners.
3 Rhode Island Gen. Laws § 3-8-8.1 (1987) provides:
"Price advertising by media or advertising companies
unlawful.-No newspaper, periodical, radio or television broadcaster
or broadcasting company or any other person, firm or corporation
with a principal place of business in the state of Rhode Island
which is engaged in the business of advertising or selling
advertising time or space shall accept, publish, or broadcast any
advertisement in this state of the price or make reference to the
price of any alcoholic beverages. Any person who shall violate any
of the provisions of this section shall be guilty of a misdemeanor
.... " The statute authorizes the liquor control administrator to
exempt trade journals from its coverage.
Ibid.
4 "We also have little difficulty in finding that the asserted
governmental interests, herein described as the promotion of
temperance and the reasonable control of the traffic in alcoholic
beverages, are substantial. We note,
491
737. Because the plaintiff failed to prove that the statute did
not serve that interest, the court held that he had not carried his
burden of establishing a violation of the First Amendment. In
response to the dissent's argument that the court had placed the
burden on the wrong party, the majority reasoned that the
Twenty-first Amendment gave the statute "'an added presumption [of]
validity.'"
Id., at 732. Although that presumption had not
been overcome in that case, the State Supreme Court assumed that in
a future case the record might "support the proposition that these
advertising restrictions do not further temperance objectives."
Id., at 734.
In Rhode Island Liquor Stores Assn. v. Evening Call Pub.
Co., 497 A. 2d 331, the plaintiff association 5 sought to
enjoin the publisher of the local newspaper in Woonsocket, Rhode
Island, from accepting advertisements disclosing the retail price
of alcoholic beverages being sold across the state line in
Millville, Massachusetts. In upholding the injunction, the
parenthetically, that the word 'temperance' is oftentimes
mistaken as a synonym for 'abstinence.' It is not. Webster's Third
New International Dictionary (1961) defines 'temperance' as
'moderation in or abstinence from the use of intoxicating drink.'
The Rhode Island Legislature has the authority, derived from the
state's inherent police power, to enact a variety of laws designed
to suppress intemperance or to minimize the acknowledged evils of
liquor traffic. Thus, there can be no question that these asserted
interests are indeed substantial.
Oklahoma Telecasters
Association v.
Crisp, 699 F.2d
500."
S&S Liquor Mart, Inc. v.
Pastore, 497
A. 2d, at 733-734.
In her dissent in
Rhode Island Liquor Stores Assn. v.
Evening Call Pub. Co., 497 A. 2d 331 (R. I. 1985), Justice
Murray suggested that the advertising ban was motivated, at least
in part, by an interest in protecting small retailers from price
competition.
Id., at 342, n. 10. This suggestion is
consistent with the position taken by respondent Rhode Island
Liquor Stores Association in this case. We, however, accept the
State Supreme Court's identification of the relevant state interest
served by the legislation.
5 The plaintiff in that case is a respondent in this case and
has filed other actions enforcing the price advertising ban. See
id., at 333.
492
State Supreme Court adhered to its reasoning in the
Pastore case and rejected the argument that the statute
neither "directly advanced" the state interest in promoting
temperance, nor was "more extensive than necessary to serve that
interest" as required by this Court's decision in
Central Hudson
Gas &
Elec. Corp. v.
Public Servo Comm'n of
N.
Y., 447 U.
S. 557, 563 (1980). It assumed the existence of other, "perhaps
more effective means" of achieving the State's "goal of
temperance," but concluded that it was "not unreasonable for the
State of Rhode Island to believe that price advertising will result
in increased sales of alcoholic beverages generally."
Rhode
Island Liquor Stores Assn. v.
Evening Call Pub. Co., 497
A. 2d, at 336.
II
Petitioners 44 Liquormart, Inc. (44 Liquormart), and Peoples
Super Liquor Stores, Inc. (Peoples), are licensed retailers of
alcoholic beverages. Petitioner 44 Liquormart operates a store in
Rhode Island and petitioner Peoples operates several stores in
Massachusetts that are patronized by Rhode Island residents.
Peoples uses alcohol price advertising extensively in
Massachusetts, where such advertising is permitted, but Rhode
Island newspapers and other media outlets have refused to accept
such ads.
Complaints from competitors about an advertisement placed by 44
Liquormart in a Rhode Island newspaper in 1991 generated
enforcement proceedings that in turn led to the initiation of this
litigation. The advertisement did not state the price of any
alcoholic beverages. Indeed, it noted that "State law prohibits
advertising liquor prices." The ad did, however, state the low
prices at which peanuts, potato chips, and Schweppes mixers were
being offered, identify various brands of packaged liquor, and
include the word "WOW" in large letters next to pictures of vodka
and rum bottles. Based on the conclusion that the implied reference
to bargain prices for liquor violated the statutory ban on
493
price advertising, the Rhode Island Liquor Control Administrator
assessed a $400 fine.
After paying the fine, 44 Liquormart, joined by Peoples, filed
this action against the administrator in the Federal District Court
seeking a declaratory judgment that the two statutes and the
administrator's implementing regulations violate the First
Amendment and other provisions of federal law. The Rhode Island
Liquor Stores Association was allowed to intervene as a defendant
and in due course the State of Rhode Island replaced the
administrator as the principal defendant. The parties stipulated
that the price advertising ban is vigorously enforced, that Rhode
Island permits "all advertising of alcoholic beverages excepting
references to price outside the licensed premises," and that
petitioners' proposed ads do not concern an illegal activity and
presumably would not be false or misleading. 44
Liquor Mart,
Inc. v.
Racine, 829 F. Supp. 543, 545 (RI 1993). The parties
disagreed, however, about the impact of the ban on the promotion of
temperance in Rhode Island. On that question the District Court
heard conflicting expert testimony and reviewed a number of
studies.
In his findings of fact, the District Judge first noted that
there was a pronounced lack of unanimity among researchers who have
studied the impact of advertising on the level of consumption of
alcoholic beverages. He referred to a 1985 Federal Trade Commission
study that found no evidence that alcohol advertising significantly
affects alcohol abuse. Another study indicated that Rhode Island
ranks in the upper 30% of States in per capita consumption of
alcoholic beverages; alcohol consumption is lower in other States
that allow price advertising. After summarizing the testimony of
the expert witnesses for both parties, he found "as a fact that
Rhode Island's off-premises liquor price advertising ban has no
significant impact on levels of alcohol consumption in Rhode
Island."
Id., at 549.
494
As a matter of law, he concluded that the price advertising ban
was unconstitutional because it did not "directly advance" the
State's interest in reducing alcohol consumption and was "more
extensive than necessary to serve that interest."
Id., at
555. He reasoned that the party seeking to uphold a restriction on
commercial speech carries the burden of justifying it and that the
Twenty-first Amendment did not shift or diminish that burden.
Acknowledging that it might have been reasonable for the state
legislature to "assume a correlation between the price advertising
ban and reduced consumption," he held that more than a rational
basis was required to justify the speech restriction, and that the
State had failed to demonstrate a reasonable "'fit'" between its
policy objectives and its chosen means.
Ibid.
The Court of Appeals reversed.
39 F.3d
5 (CA1 1994).
It found "inherent merit" in the State's submission that
competitive price advertising would lower prices and that lower
prices would produce more sales.
Id., at 7. Moreover, it
agreed with the reasoning of the Rhode Island Supreme Court that
the Twenty-first Amendment gave the statutes an added presumption
of validity.
Id., at 8. Alternatively, it concluded that
reversal was compelled by this Court's summary action in
Queensgate Investment Co. v.
Liquor Control Comm'n of
Ohio, 459 U. S. 807 (1982). See 39 F. 3d, at 8. In that case
the Court dismissed the appeal from a decision of the Ohio Supreme
Court upholding a prohibition against off-premises advertising of
the prices of alcoholic beverages sold by the drink. See
Queensgate Investment Co. v.
Liquor Control Comm'n of
Ohio, 69 Ohio St. 2d 361, 433 N. E. 2d 138 (1982).
Queensgate has been both followed and distinguished in
subsequent cases reviewing the validity of similar advertising
bans.6 We are now persuaded that the importance of
6 In
Dunagin v.
Oxford, 718
F.2d 738 (1983), the Fifth Circuit distinguished our summary
action in
Queensgate in considering the constitutionality of
a sweeping state restriction on outdoor liquor adver-
495
the First Amendment issue, as well the suggested relevance of
the Twenty-first Amendment, merits more thorough analysis than it
received when we refused to accept jurisdiction of the
Queensgate appeal. We therefore granted certiorari. 514 U.
S. 1095 (1995).
III
Advertising has been a part of our culture throughout our
history. Even in colonial days, the public relied on "commercial
speech" for vital information about the market. Early newspapers
displayed advertisements for goods and services on their front
pages, and town criers called out prices in public squares. See J.
Wood, The Story of Advertising 21,45-69,85 (1958); J. Smith,
Printers and Press Freedom 49 (1988). Indeed, commercial messages
played such a central role in public life prior to the founding
that Benjamin Franklin authored his early defense of a free press
in support of his decision to print, of all things, an
advertisement for voyages to Barbados. Franklin, An Apology for
Print-
tising. The court explained that
Queensgate did not
control because it involved a far narrower alcohol advertising
regulation.
Id., at 745-746. By contrast, in
Oklahoma
Telecasters Assn. v.
Crisp, 699 F.2d
490, 495497 (1983), rev'd on other grounds
sub nom. Capital
Cities Cable, Inc. v.
Crisp, 467 U. S. 691, 697
(1984), the Tenth Circuit relied on
Queensgate in
considering a prohibition against broadcasting alcohol
advertisements. The Court of Appeals concluded that
Queensgate stood for the proposition that the Twenty-first
Amendment gives the State greater authority to regulate liquor
advertising than the First Amendment would otherwise allow. 699 F.
2d, at 495-497.
Other than the two Rhode Island Supreme Court decisions
upholding the constitutionality of the statutes at issue in this
case, only one published state court opinion has considered our
summary action in
Queensgate in passing on a liquor
advertising restriction. See
Michigan Beer &
Wine
Wholesalers Assn. v.
Attorney General, 142 Mich. App.
294, 370 N. W. 2d 328 (1985). There, the Michigan Court of Appeals
concluded that
Queensgate did not control because it
involved a far narrower restriction on liquor advertising than the
one that Michigan had imposed. 142 Mich. App., at 304-305, 370 N.
W. 2d, at 333-335.
496
ers, June 10, 1731, reprinted in 2 Writings of Benjamin Franklin
172 (1907).
In accord with the role that commercial messages have long
played, the law has developed to ensure that advertising provides
consumers with accurate information about the availability of goods
and services. In the early years, the common law, and later,
statutes, served the consumers' interest in the receipt of accurate
information in the commercial market by prohibiting fraudulent and
misleading advertising. It was not until the 1970's, however, that
this Court held that the First Amendment protected the
dissemination of truthful and nonmisleading commercial messages
about lawful products and services. See generally Kozinski &
Banner, The Anti-History and Pre-History of Commercial Speech, 71
Texas L. Rev. 747 (1993).
In
Bigelow v.
Virginia, 421 U. S. 809 (1975), we
held that it was error to assume that commercial speech was
entitled to no First Amendment protection or that it was without
value in the marketplace of ideas.
Id., at 825-826. The
following Term in
Virginia Bd. of Pharmacy v.
Virginia
Citizens Consumer Council, Inc., 425 U. S. 748 (1976), we
expanded on our holding in
Bigelow and held that the State's
blanket ban on advertising the price of prescription drugs violated
the First Amendment.
Virginia Bd. of Pharmacy reflected the conclusion that
the same interest that supports regulation of potentially
misleading advertising, namely, the public's interest in receiving
accurate commercial information, also supports an interpretation of
the First Amendment that provides constitutional protection for the
dissemination of accurate and nonmisleading commercial messages. We
explained:
"Advertising, however tasteless and excessive it sometimes may
seem, is nonetheless dissemination of information as to who is
producing and selling what product, for what reason, and at what
price. So long as we pre-
497
serve a predominantly free enterprise economy, the allocation of
our resources in large measure will be made through numerous
private economic decisions. It is a matter of public interest that
those decisions, in the aggregate, be intelligent and well
informed. To this end, the free flow of commercial information is
indispensable." 425 U. S., at 765.7
The opinion further explained that a State's paternalistic
assumption that the public will use truthful, nonmisleading
commercial information unwisely cannot justify a decision to
suppress it:
"There is, of course, an alternative to this highly
paternalistic approach. That alternative is to assume that this
information is not in itself harmful, that people will perceive
their own best interests if only they are well enough informed, and
that the best means to that end is to open the channels of
communication rather than to close them. If they are truly open,
nothing prevents the 'professional' pharmacist from marketing his
own assertedly superior product, and contrasting it with that of
the low-cost, high-volume prescription drug retailer. But the
choice among these alternative approaches is not ours to make or
the Virginia General Assembly's. It is precisely this kind of
choice, between the dangers of suppressing information, and the
dangers of its misuse if it is freely available, that the First
Amendment makes for us." Id., at no.
On the basis of these principles, our early cases uniformly
struck down several broadly based bans on truthful, nonmisleading
commercial speech, each of which served ends unre-
7 By contrast, the First Amendment does not protect commercial
speech about unlawful activities. See
Pittsburgh Press Co.
v.
Pittsburgh Comm'n on Human Relations, 413 U. S. 376 (1973).
498
lated to consumer protection.8 Indeed, one of those cases
expressly likened the rationale that
Virginia Bd. of
Pharmacy employed to the one that Justice Brandeis adopted in
his concurrence in
Whitney v.
California, 274 U. S. 357 (1927). See
Linmark Associates, Inc. v.
Willingboro, 431 U. S.
85, 97 (1977). There, Justice Brandeis wrote, in explaining his
objection to a prohibition of
political speech, that "the
remedy to be applied is more speech, not enforced silence. Only an
emergency can justify repression."
Whitney, 274 U. S., at
377; see also
Carey v.
Population Services Int'l,
431 U. S. 678,
701 (1977) (applying test for suppressing political speech set
forth in
Brandenburg v.
Ohio, 395 U. S. 444, 447
(1969)).
At the same time, our early cases recognized that the State may
regulate some types of commercial advertising more freely than
other forms of protected speech. Specifically, we explained that
the State may require commercial messages to "appear in such a
form, or include such additional information, warnings, and
disclaimers, as are necessary to prevent its being deceptive,"
Virginia Bd. of Pharmacy, 425 U. S., at 772, n. 24, and that
it may restrict some forms of aggressive sales practices that have
the potential to exert "undue influence" over consumers, see
Bates v.
State Bar of Ariz., 433 U. S. 350, 366
(1977).
Virginia Bd. of Pharmacy attributed the State's authority
to impose these regulations in part to certain "commonsense
8 See
Bates v.
State Bar of Ariz., 433 U. S. 350, 355 (1977)
(ban on lawyer advertising);
Carey v.
Population Services
Int'l, 431 U. S.
678, 700 (1977) (ban on contraceptive advertising);
Linmark
Associates, Inc. v.
Willingboro, 431 U. S. 85, 92-94 (1977)
(ban on "For Sale" signs);
Virginia Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976) (ban
on prescription drug prices);
Bigelow v.
Virginia,
421 U. S. 809,
825 (1975) (ban on abortion advertising). Although
Linmark
involved a prohibition against a particular means of advertising
the sale of one's home, we treated the restriction as if it were a
complete ban because it did not leave open "satisfactory"
alternative channels of communication. 431 U. S., at 92-94.
499
differences" that exist between commercial messages and other
types of protected expression. 425 U. S., at 771, n. 24. Our
opinion noted that the greater "objectivity" of commercial speech
justifies affording the State more freedom to distinguish false
commercial advertisements from true ones,
ibid., and that
the greater "hardiness" of commercial speech, inspired as it is by
the profit motive, likely diminishes the chilling effect that may
attend its regulation,
ibid.
Subsequent cases explained that the State's power to regulate
commercial transactions justifies its concomitant power to regulate
commercial speech that is "linked inextricably" to those
transactions.
Friedman v.
Rogers, 440 U. S. 1, 10, n. 9
(1979);
Ohralik v.
Ohio State Bar Assn., 436 U. S. 447, 456 (1978)
(commercial speech "occurs in an area traditionally subject to
government regulation"). As one commentator has explained: "The
entire commercial speech doctrine, after all, represents an
accommodation between the right to speak and hear expression
about goods and services and the right of government to
regulate the sales
of such goods and services." L. Tribe,
American Constitutional Law § 12-15, p. 903 (2d ed. 1988).
Nevertheless, as we explained in
Linmark, the State
retains less regulatory authority when its commercial speech
restrictions strike at "the substance of the information
communicated" rather than the "commercial aspect of [it]-with
offerors communicating offers to offerees." 431 U. S., at 96;
Carey v.
Population Services Int'l, 431 U. S., at
701, n. 28.
In
Central Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n of N.
Y., 447 U. S. 557 (1980), we
took stock of our developing commercial speech jurisprudence. In
that case, we considered a regulation "completely" banning all
promotional advertising by electric utilities.
Ibid. Our
decision acknowledged the special features of commercial speech but
identified the serious First Amendment concerns that attend blanket
advertising prohibitions that do not protect consumers from
commercial harms.
500
Five Members of the Court recognized that the state interest in
the conservation of energy was substantial, and that there was "an
immediate connection between advertising and demand for
electricity."
Id., at 569. Nevertheless, they concluded that
the regulation was invalid because respondent commission had failed
to make a showing that a more limited speech regulation would not
have adequately served the State's interest.
Id., at
571.9
In reaching its conclusion, the majority explained that although
the special nature of commercial speech may require less than
strict review of its regulation, special concerns arise from
"regulations that entirely suppress commercial speech in order to
pursue a nonspeech-related policy."
Id., at 566, n. 9. In
those circumstances, "a ban on speech could screen from public view
the underlying governmental policy."
Ibid. As a result, the
Court concluded that "special care" should attend the review of
such blanket bans, and it pointedly remarked that "in recent years
this Court has not approved a blanket ban on commercial speech
unless the expression itself was flawed in some way, either because
it was deceptive or related to unlawful activity."
Ibid.lO
9 In other words, the regulation failed the fourth step in the
four-part inquiry that the majority announced in its opinion. It
wrote:
"In commercial speech cases, then, a four-part analysis has
developed.
At the outset, we must determine whether the expression is
protected by the First Amendment. For commercial speech to come
within that provision, it at least must concern lawful activity and
not be misleading. Next, we ask whether the asserted governmental
interest is substantial. If both inquiries yield positive answers,
we must determine whether the regulation directly advances the
governmental interest asserted, and whether it is not more
extensive than is necessary to serve that interest."
Central
Hudson, 447 U. S., at 566.
10 The Justices concurring in the judgment adopted a somewhat
broader view. They expressed "doubt whether suppression of
information concerning the availability and price of a legally
offered product is ever a permissible way for the State to 'dampen'
the demand for or use of the product."
Id., at 574. Indeed,
Justice Blackmun believed that even
501
IV
As our review of the case law reveals, Rhode Island errs in
concluding that
all commercial speech regulations are
subject to a similar form of constitutional review simply because
they target a similar category of expression. The mere fact that
messages propose commercial transactions does not in and of itself
dictate the constitutional analysis that should apply to decisions
to suppress them. See
Rubin v.
Coors Brewing Co., 514
U. S., at 491-494 (STEVENS, J., concurring in judgment).
When a State regulates commercial messages to protect consumers
from misleading, deceptive, or aggressive sales practices, or
requires the disclosure of beneficial consumer information, the
purpose of its regulation is consistent with the reasons for
according constitutional protection to commercial speech and
therefore justifies less than strict review. However, when a State
entirely prohibits the dissemination of truthful, nonmisleading
commercial messages for reasons unrelated to the preservation of a
fair bargaining process, there is far less reason to depart from
the rigorous review that the First Amendment generally demands.
Sound reasons justify reviewing the latter type of commercial
speech regulation more carefully. Most obviously, complete speech
bans, unlike content-neutral restrictions on the time, place, or
manner of expression, see
Kovacs v.
Cooper, 336 U. S. 77, 89 (1949),
are particularly dangerous because they all but foreclose
alternative means of disseminating certain information.
Our commercial speech cases have recognized the dangers that
attend governmental attempts to single out certain messages for
suppression. For example, in
Linmark, 431 U. S., at 92-94,
we concluded that a ban on "For Sale" signs
"though 'commercial' speech is involved, such a regulation
strikes at the heart of the First Amendment."
Ibid.
502
was "content based" and failed to leave open "satisfactory"
alternative channels of communication; see also
Virginia Bd. of
Pharmacy, 425 U. S., at 771. Moreover, last Term we upheld a
30-day prohibition against a certain form of legal solicitation
largely because it left so many channels of communication open to
Florida lawyers.
Florida Bar v.
Went For It, Inc.,
515 U. S. 618,
633-634 (1995).11
The special dangers that attend complete bans on truthful,
nonmisleading commercial speech cannot be explained away by appeals
to the "commonsense distinctions" that exist between commercial and
noncommercial speech.
Virginia Bd. of Pharmacy, 425 U. S.,
at 771, n. 24. Regulations that suppress the truth are no less
troubling because they target objectively verifiable information,
nor are they less effective because they aim at durable messages.
As a result, neither the "greater objectivity" nor the "greater
hardiness" of truthful, nonmisleading commercial speech justifies
reviewing its complete suppression with added deference.
Ibid.
It is the State's interest in protecting consumers from
"commercial harms" that provides "the typical reason why commercial
speech can be subject to greater governmental regulation than
noncommercial speech."
Cincinnati v.
Discovery Network,
Inc., 507 U. S.
410, 426 (1993). Yet bans
11 "Florida permits lawyers to advertise on prime-time
television and radio as well as in newspapers and other media. They
may rent space on billboards. They may send untargeted letters to
the general population, or to discrete segments thereof. There are,
of course, pages upon pages devoted to lawyers in the Yellow Pages
of Florida telephone directories. These listings are organized
alphabetically and by area of specialty. See generally Rule
4-7.2(a), Rules Regulating The Florida Bar ('[A] lawyer may
advertise services through public media, such as a telephone
directory, legal directory, newspaper or other periodical,
billboards, and other signs, radio, television, and recorded
messages the public may access by dialing a telephone number, or
through written communication not involving solicitation as defined
in rule 4-7.4');
The Florida Bar: Petition to Amend the Rules
Regulating The Florida Bar-Advertising Issues, 571 So. 2d, at
461." 515 U. S., at 633-634.
503
that target truthful, nonmisleading commercial messages rarely
protect consumers from such harms. 12 Instead, such bans often
serve only to obscure an "underlying governmental policy" that
could be implemented without regulating speech.
Central
Hudson, 447 U. S., at 566, n. 9. In this way, these commercial
speech bans not only hinder consumer choice, but also impede debate
over central issues of public policy. See
id., at 575
(Blackmun, J., concurring in judgment).13
Precisely because bans against truthful, nonmisleading
commercial speech rarely seek to protect consumers from either
deception or overreaching, they usually rest solely on the
offensive assumption that the public will respond "irrationally" to
the truth.
Linmark, 431 U. S., at 96. The First Amendment
directs us to be especially skeptical of regulations that seek to
keep people in the dark for what the government perceives to be
their own good. That teaching applies equally to state attempts to
deprive consumers of accurate information about their chosen
products:
"The commercial marketplace, like other spheres of our social
and cultural life, provides a forum where ideas and information
flourish. Some of the ideas and information are vital, some of
slight worth. But the general rule is that the speaker and the
audience, not the gov-
12 In
Discovery Network, we held that the city's
categorical ban on commercial newsracks attached too much
importance to the distinction between commercial and noncommercial
speech. After concluding that the esthetic and safety interests
served by the newsrack ban bore no relationship whatsoever to the
prevention of commercial harms, we rejected the State's attempt to
justify its ban on the sole ground that it targeted commercial
speech. See 507 U. S., at 428.
13 This case bears out the point. Rhode Island seeks to reduce
alcohol consumption by increasing alcohol price; yet its means of
achieving that goal deprives the public of their chief source of
information about the reigning price level of alcohol. As a result,
the State's price advertising ban keeps the public ignorant of the
key barometer of the ban's effectiveness: the alcohol beverages'
prices.
504
ernment, assess the value of the information presented. Thus,
even a communication that does no more than propose a commercial
transaction is entitled to the coverage of the First Amendment. See
Virginia State Bd. of Pharmacy, supra, at 762."
Edenfield v. Fane, 507 U. S. 761, 767
(1993).
See also
Linmark, 431 U. S., at 96 (1977);
Rubin
v.
Coors Brewing Co., 514 U. S., at 497-498 (STEVENS, J.,
concurring in judgment); Tribe, American Constitutional Law § 12-2,
at 790, and n. 11.
v
In this case, there is no question that Rhode Island's price
advertising ban constitutes a blanket prohibition against truthful,
nonmisleading speech about a lawful product. There is also no
question that the ban serves an end unrelated to consumer
protection. Accordingly, we must review the price advertising ban
with "special care,"
Central Hudson, 447 U. S., at 566, n.
9, mindful that speech prohibitions of this type rarely survive
constitutional review,
ibid.
The State argues that the price advertising prohibition should
nevertheless be upheld because it directly advances the State's
substantial interest in promoting temperance, and because it is no
more extensive than necessary. Cf.
id., at 566. Although
there is some confusion as to what Rhode Island means by
temperance, we assume that the State asserts an interest in
reducing alcohol consumption.14
14 Before the District Court, the State argued that it sought to
reduce consumption among irresponsible drinkers. App. 67. In its
brief to this Court, it equates its interest in promoting
temperance with an interest in reducing alcohol consumption among
all drinkers. See,
e. g., Brief for Respondents 28.
The Rhode Island Supreme Court has characterized the State's
interest in "promoting temperance" as both "the state's interest in
reducing the consumption of liquor,"
S&S Liquormart,
Inc. v.
Pastore, 497 A. 2d 729, 734 (1985), and the
State's interest in discouraging "excessive consumption of
alcoholic beverages,"
id., at 735. A state statute declares
the ban's purpose to be "the promotion of temperance and for the
rea-
505
In evaluating the ban's effectiveness in advancing the State's
interest, we note that a commercial speech regulation "may not be
sustained if it provides only ineffective or remote support for the
government's purpose."
Id., at 564. For that reason, the
State bears the burden of showing not merely that its regulation
will advance its interest, but also that it will do so "to a
material degree."
Edenfield, 507 U. S., at 771; see also
Rubin v.
Coors Brewing Co., 514 U. S., at 486-488.
The need for the State to make such a showing is particularly great
given the drastic nature of its chosen means-the wholesale
suppression of truthful, nonmisleading information. Accordingly, we
must determine whether the State has shown that the price
advertising ban will
significantly reduce alcohol
consumption.
We can agree that common sense supports the conclusion that a
prohibition against price advertising, like a collusive agreement
among competitors to refrain from such advertising,15 will tend to
mitigate competition and maintain prices at a higher level than
would prevail in a completely free market. Despite the absence of
proof on the point, we can even agree with the State's contention
that it is reasonable to assume that demand, and hence consumption
throughout the market, is somewhat lower whenever a higher,
noncompetitive price level prevails. However, without any findings
of fact, or indeed any evidentiary support whatsoever, we cannot
agree with the assertion that the price advertising ban will
significantly advance the State's interest in promoting
temperance.
sonable control of the traffic in alcoholic beverages." R. I.
Gen. Laws §3-1-5 (1987).
15 See,
e. g., Business Electronics Corp. v.
Sharp
Electronics Corp., 485 U. S. 717, 735 (1988) (considering
restriction on price advertising as evidence of Sherman Act
violation);
United States v.
Sealy, Inc., 388 U. S.
350, 355 (1967) (same);
Blackburn v.
Sweeney,
53 F.3d
825, 828
(CA7 1995) (considering restrictions on the
location of advertising as evidence of Sherman Act violation).
506
Although the record suggests that the price advertising ban may
have some impact on the purchasing patterns of temperate drinkers
of modest means, 829 F. Supp., at 546, the State has presented no
evidence to suggest that its speech prohibition will
significantly reduce marketwide consumption.16 Indeed, the
District Court's considered and uncontradicted finding on this
point is directly to the contrary.
Id., at 549.17 Moreover,
the evidence suggests that the abusive drinker will probably not be
deterred by a marginal price increase, and that the true alcoholic
may simply reduce his purchases of other necessities.
In addition, as the District Court noted, the State has not
identified what price level would lead to a significant reduction
in alcohol consumption, nor has it identified the amount
16 Petitioners' stipulation that they each expect to realize a
$100,000 benefit per year if the ban is lifted is not to the
contrary. App. 47. The stipulation shows only that petitioners
believe they will be able to compete more effectively for existing
alcohol consumers if there is no ban on price advertising. It does
not show that they believe either the number of alcohol consumers,
or the number of purchases by those consumers, will increase in the
ban's absence. Indeed, the State's own expert conceded that
"plaintiffs' expectation of realizing additional profits through
price advertising has no necessary relationship to increased
overall consumption." 829 F. Supp., at 549.
Moreover, we attach little significance to the fact that some
studies suggest that people budget the amount of money that they
will spend on alcohol.
39 F.3d
5, 7
(CA1 1994). These studies show only that, in a
competitive market, people will tend to search for the cheapest
product in order to meet their budgets. The studies do not suggest
that the amount of money budgeted for alcohol consumption will
remain fixed in the face of a marketwide price increase.
17 Although the Court of Appeals concluded that the regulation
directly advanced the State's interest, it did not dispute the
District Court's conclusion that the evidence suggested that, at
most, a price advertising ban would have a marginal impact on
overall alcohol consumption.
Id., at 7-8; cf.
Michigan
Beer &
Wine Wholesalers Assn. v.
Attorney
General, 142 Mich. App., at 311, 370 N. W. 2d, at 336
(explaining that "any additional impact on the level of consumption
attributable to the absence of price advertisements would be
negligible").
507
that it believes prices would decrease without the ban.
Ibid. Thus, the State's own showing reveals that any
connection between the ban and a significant change in alcohol
consumption would be purely fortuitous.
As is evident, any conclusion that elimination of the ban would
significantly increase alcohol consumption would require us to
engage in the sort of "speculation or conjecture" that is an
unacceptable means of demonstrating that a restriction on
commercial speech directly advances the State's asserted interest.
Edenfield, 507 U. S., at 770.18 Such speculation certainly
does not suffice when the State takes aim at accurate commercial
information for paternalistic ends.
The State also cannot satisfy the requirement that its
restriction on speech be no more extensive than necessary. It is
perfectly obvious that alternative forms of regulation that would
not involve any restriction on speech would be more likely to
achieve the State's goal of promoting temperance. As the State's
own expert conceded, higher prices can be maintained either by
direct regulation or by increased taxation. 829 F. Supp., at 549.
Per capita purchases could be limited as is the case with
prescription drugs. Even educational campaigns focused on the
problems of excessive, or even moderate, drinking might prove to be
more effective.
As a result, even under the less than strict standard that
generally applies in commercial speech cases, the State has failed
to establish a "reasonable fit" between its abridgment of speech
and its temperance goal.
Board of Trustees of State Univ. of
N.
Y. v.
Fox, 492 U. S. 469, 480
(1989); see also
18 Outside the First Amendment context, we have refused to
uphold alcohol advertising bans premised on similarly speculative
assertions about their impact on consumption. See
Capital Cities
Cable, Inc. v.
Crisp, 467 U. S., at 715-716 (holding ban
pre-empted by Federal Communications Commission regulations);
California Retail Liquor Dealers Assn. v.
Midcal
Aluminum, Inc., 445 U. S. 97 (1980)
(holding ban violated the Sherman Act). It would be anomalous if
the First Amendment were more tolerant of speech bans than federal
regulations and statutes.
508
Rubin v.
Coors Brewing Co., 514 U. S., at 491
(explaining that defects in a federal ban on alcohol advertising
are "further highlighted by the availability of alternatives that
would prove less intrusive to the First Amendment's protections for
commercial speech");
Linmark, 431 U. S., at 97 (suggesting
that the State use financial incentives or counterspeech, rather
than speech restrictions, to advance its interests). It necessarily
follows that the price advertising ban cannot survive the more
stringent constitutional review that
Central Hudson itself
concluded was appropriate for the complete suppression of truthful,
nonmisleading commercial speech. 447 U. S., at 566, n. 9.
VI
The State responds by arguing that it merely exercised
appropriate "legislative judgment" in determining that a price
advertising ban would best promote temperance. Relying on the
Central Hudson analysis set forth in
Posadas de Puerto
Rico Associates v.
Tourism Co. of P. R., 478 U. S. 328 (1986), and
United States v.
Edge Broadcasting Co., 509 U. S. 418
(1993), Rhode Island first argues that, because expert opinions as
to the effectiveness of the price advertising ban "go both ways,"
the Court of Appeals correctly concluded that the ban constituted a
"reasonable choice" by the legislature. 39 F. 3d, at 7. The State
next contends that precedent requires us to give particular
deference to that legislative choice because the State could, if it
chose, ban the sale of alcoholic beverages outright. See
Posadas, 478 U. S., at 345-346. Finally, the State argues
that deference is appropriate because alcoholic beverages are
so-called "vice" products. See
Edge, 509 U. S., at 426;
Posadas, 478 U. S., at 346-347. We consider each of these
contentions in turn.
The State's first argument fails to justify the speech
prohibition at issue. Our commercial speech cases recognize some
room for the exercise of legislative judgment. See
Metromedia,
Inc. v.
San Diego, 453 U. S. 490, 507-508
(1981). However, Rhode Island errs in concluding that
Edge
and
509
Posadas establish the degree of deference that its
decision to impose a price advertising ban warrants.
In
Edge, we upheld a federal statute that permitted only
those broadcasters located in States that had legalized lotteries
to air lottery advertising. The statute was designed to regulate
advertising about an activity that had been deemed illegal in the
jurisdiction in which the broadcaster was located. 509 U. S., at
433-434. Here, by contrast, the commercial speech ban targets
information about entirely lawful behavior.
Posadas is more directly relevant. There, a five-Member
majority held that, under the
Central Hudson test, it was
"up to the legislature" to choose to reduce gambling by suppressing
in-state casino advertising rather than engaging in educational
speech.
Posadas, 478 U. S., at 344. Rhode Island argues that
this logic demonstrates the constitutionality of its own decision
to ban price advertising in lieu of raising taxes or employing some
other less speech-restrictive means of promoting temperance.
The reasoning in
Posadas does support the State's
argument, but, on reflection, we are now persuaded that
Posadas erroneously performed the First Amendment analysis.
The casino advertising ban was designed to keep truthful,
nonmisleading speech from members of the public for fear that they
would be more likely to gamble if they received it. As a result,
the advertising ban served to shield the State's antigambling
policy from the public scrutiny that more direct, nonspeech
regulation would draw. See
id., at 351 (Brennan, J.,
dissenting).
Given our longstanding hostility to commercial speech regulation
of this type,
Posadas clearly erred in concluding that it
was "up to the legislature" to choose suppression over a less
speech-restrictive policy. The
Posadas majority's conclusion
on that point cannot be reconciled with the unbroken line of prior
cases striking down similarly broad regulations on truthful,
nonmisleading advertising when non-speech-
510
related alternatives were available. See
id., at 350
(Brennan, J., dissenting) (listing cases); Kurland, Posadas de
Puerto Rico v. Tourism Company: "'Twas Strange, 'Twas Passing
Strange; 'Twas Pitiful, 'Twas Wondrous Pitiful," 1986 S. Ct. Rev.
1, 12-15.
Because the 5-to-4 decision in
Posadas marked such a
sharp break from our prior precedent, and because it concerned a
constitutional question about which this Court is the final
arbiter, we decline to give force to its highly deferential
approach. Instead, in keeping with our prior holdings, we conclude
that a state legislature does not have the broad discretion to
suppress truthful, nonmisleading information for paternalistic
purposes that the
Posadas majority was willing to tolerate.
As we explained in
Virginia Bd. of Pharmacy, "[i]t is
precisely this kind of choice, between the dangers of suppressing
information, and the dangers of its misuse if it is freely
available, that the First Amendment makes for us." 425 U. S., at
770.
We also cannot accept the State's second contention, which is
premised entirely on the "greater-includes-the-Iesser" reasoning
endorsed toward the end of the majority's opinion in
Posadas. There, the majority stated that "the greater power
to completely ban casino gambling necessarily includes the lesser
power to ban advertising of casino gambling." 478 U. S., at
345-346. It went on to state that
"because the government
could have enacted a wholesale prohibition of [casino gambling] it
is permissible for the government to take the less intrusive step
of allowing the conduct, but reducing the demand through
restrictions on advertising."
Id., at 346. The majority
concluded that it would "surely be a strange constitutional
doctrine which would concede to the legislature the authority to
totally ban a product or activity, but deny to the legislature the
authority to forbid the stimulation of demand for the product or
activity through advertising on behalf of those who would profit
from such increased demand."
Ibid. On the basis of
511
these statements, the State reasons that its undisputed
authority to ban alcoholic beverages must include the power to
restrict advertisements offering them for sale.
In
Rubin v.
Coors Brewing Co., 514 U. S. 476 (1995), the
United States advanced a similar argument as a basis for supporting
a statutory prohibition against revealing the alcoholic content of
malt beverages on product labels. We rejected the argument, noting
that the statement in the
Posadas opinion was made only
after the majority had concluded that the Puerto Rican regulation
"survived the
Central Hudson test." 514 U. S., at 483, n. 2.
Further consideration persuades us that the
"greater-includes-the-Iesser" argument should be rejected for the
additional and more important reason that it is inconsistent with
both logic and well-settled doctrine.
Although we do not dispute the proposition that greater powers
include lesser ones, we fail to see how that syllogism requires the
conclusion that the State's power to regulate commercial
activity is "greater" than its power to ban truthful,
nonmisleading commercial
speech. Contrary to the assumption
made in
Posadas, we think it quite clear that banning speech
may sometimes prove far more intrusive than banning conduct. As a
venerable proverb teaches, it may prove more injurious to prevent
people from teaching others how to fish than to prevent fish from
being sold.19 Similarly, a local ordinance banning bicycle lessons
may curtail freedom far more than one that prohibits bicycle riding
within city limits. In short, we reject the assumption that words
are necessarily less vital to freedom than actions, or that logic
somehow proves that the power to prohibit an activity is
necessarily "greater" than the power to suppress speech about
it.
19 "Give a man a fish, and you feed him for a day. Teach a man
to fish, and you feed him for a lifetime." The International
Thesaurus of Quotations 646 (compiled by R. Tripp 1970).
512
As a matter of First Amendment doctrine, the
Posadas
syllogism is even less defensible. The text of the First Amendment
makes clear that the Constitution presumes that attempts to
regulate speech are more dangerous than attempts to regulate
conduct. That presumption accords with the essential role that the
free flow of information plays in a democratic society. As a
result, the First Amendment directs that government may not
suppress speech as easily as it may suppress conduct, and that
speech restrictions cannot be treated as simply another means that
the government may use to achieve its ends.
These basic First Amendment principles clearly apply to
commercial speech; indeed, the
Posadas majority impliedly
conceded as much by applying the
Central Hudson test. Thus,
it is no answer that commercial speech concerns products and
services that the government may freely regulate. Our decisions
from
Virginia Bd. of Pharmacy on have made plain that a
State's regulation of the sale of goods differs in kind from a
State's regulation of accurate information about those goods. The
distinction that our cases have consistently drawn between these
two types of governmental action is fundamentally incompatible with
the absolutist view that the State may ban commercial speech simply
because it may constitutionally prohibit the underlying
conduct.20
20 It is also no answer to say that it would be "strange" if the
First Amendment tolerated a seemingly "greater" regulatory measure
while forbidding a "lesser" one. We recently held that although the
government had the power to proscribe an entire category of speech,
such as obscenity or so-called fighting words, it could not limit
the scope of its ban to obscene or fighting words that expressed a
point of view with which the government disagrees.
R. A. V.
v.
St. Paul, 505 U. S. 377 (1992).
Similarly, in
Cincinnati v.
Discovery Network, Inc.,
507 U. S. 410
(1993), we assumed that States could prevent all newsracks from
being placed on public sidewalks, but nevertheless concluded that
they could not ban only those newsracks that contained certain
commercial publications.
Id., at 428.
513
That the State has chosen to license its liquor retailers does
not change the analysis. Even though government is under no
obligation to provide a person, or the public, a particular
benefit, it does not follow that conferral of the benefit may be
conditioned on the surrender of a constitutional right. See,
e.
g., Frost &
Frost Trucking Co. v.
Railroad Comm'n
of Cal., 271 U.
S. 583, 594 (1926). In
Perry v.
Sindermann,
408 U. S. 593
(1972), relying on a host of cases applying that principle during
the preceding quarter century, the Court explained that government
"may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests-especially his interest in
freedom of speech."
Id., at 597. That teaching clearly
applies to state attempts to regulate commercial speech, as our
cases striking down bans on truthful, nonmisleading speech by
licensed professionals attest. See,
e. g., Bates v.
State
Bar of Ariz., 433 U. S., at 355;
Virginia Bd. of
Pharmacy v.
Virginia Citizens Consumer Council, Inc.,
425 U. S. 748
(1976).
Thus, just as it is perfectly clear that Rhode Island could not
ban all obscene liquor ads except those that advocated temperance,
we think it equally clear that its power to ban the sale of liquor
entirely does not include a power to censor all advertisements that
contain accurate and nonmisleading information about the price of
the product. As the entire Court apparently now agrees, the
statements in the
Posadas opinion on which Rhode Island
relies are no longer persuasive.
Finally, we find unpersuasive the State's contention that, under
Posadas and
Edge, the price advertising ban should be
upheld because it targets commercial speech that pertains to a
"vice" activity. Respondents premise their request for a so-called
"vice" exception to our commercial speech doctrine on language in
Edge which characterized gambling as a "vice."
Edge,
509 U. S., at 426; see also
Posadas, 478 U. S., at 346-347.
Respondents misread our precedent. Our decision last Term striking
down an alcohol-related advertising
514
restriction effectively rejected the very contention respondents
now make. See
Rubin v.
Coors Brewing Co., 514 U. S.,
at 478, 482, n. 2.
Moreover, the scope of any "vice" exception to the protection
afforded by the First Amendment would be difficult, if not
impossible, to define. Almost any product that poses some threat to
public health or public morals might reasonably be characterized by
a state legislature as relating to "vice activity." Such
characterization, however, is anomalous when applied to products
such as alcoholic beverages, lottery tickets, or playing cards,
that may be lawfully purchased on the open market. The recognition
of such an exception would also have the unfortunate consequence of
either allowing state legislatures to justify censorship by the
simple expedient of placing the "vice" label on selected lawful
activities, or requiring the federal courts to establish a federal
common law of vice. See Kurland, 1986 S. Ct. Rev., at 15. For these
reasons, a "vice" label that is unaccompanied by a corresponding
prohibition against the commercial behavior at issue fails to
provide a principled justification for the regulation of commercial
speech about that activity.
VII
From 1919 until 1933, the Eighteenth Amendment to the
Constitution totally prohibited "the manufacture, sale, or
transportation of intoxicating liquors" in the United States and
its territories. Section 1 of the Twenty-first Amendment repealed
that prohibition, and § 2 delegated to the several States the power
to prohibit commerce in, or the use of, alcoholic beverages.21 The
States' regulatory power over this segment of commerce is therefore
largely "unfettered
21 "Section 2. The transportation or importation into any State,
Territory, or possession of the United States for delivery or use
therein of intoxicating liquors, in violation of the laws thereof,
is hereby prohibited." U. S. Const., Arndt. 21, § 2.
515
by the Commerce Clause."
Ziffrin, Inc. v.
Reeves,
308 U. S. 132,
138 (1939).
As is clear, the text of the Twenty-first Amendment supports the
view that, while it grants the States authority over commerce that
might otherwise be reserved to the Federal Government, it places no
limit whatsoever on other constitutional provisions. Nevertheless,
Rhode Island argues, and the Court of Appeals agreed, that in this
case the Twentyfirst Amendment tilts the First Amendment analysis
in the State's favor. See 39 F. 3d, at 7-8.
In reaching its conclusion, the Court of Appeals relied on our
decision in
California v.
LaRue, 409 U. S. 109 (1972).22
In
LaRue, five Members of the Court relied on the
Twentyfirst Amendment to buttress the conclusion that the First
Amendment did not invalidate California's prohibition of certain
grossly sexual exhibitions in premises licensed to serve alcoholic
beverages. Specifically, the opinion stated that the Twenty-first
Amendment required that the prohibition be given an added
presumption in favor of its validity. See
id., at 118-119.
We are now persuaded that the Court's analysis in
LaRue
would have led to precisely the same result if it had placed no
reliance on the Twenty-first Amendment.
Entirely apart from the Twenty-first Amendment, the State has
ample power to prohibit the sale of alcoholic beverages in
inappropriate locations. Moreover, in subsequent cases, the Court
has recognized that the States' inherent police powers provide
ample authority to restrict the kind of "bacchanalian revelries"
described in the
LaRue opinion regardless of whether
alcoholic beverages are involved.
Id., at 118; see,
e.
g., Young v.
American Mini Theatres, Inc., 427 U. S. 50 (1976);
Barnes v.
Glen Theatre, Inc., 501 U. S. 560 (1991). As
we recently noted:
"LaRue did not involve
22 The State also relies on two
per curiam opinions that
followed the Twenty-first Amendment analysis set forth in
LaRue. See
New York State Liquor Authority v.
Bellanca, 452
U. S. 714 (1981), and
Newport v.
Iacobucci,
479 U. S. 92
(1986).
516
commercial speech about alcohol, but instead concerned the
regulation of nude dancing in places where alcohol was served."
Rubin v.
Coors Brewing Co., 514 U. S., at 483, n.
2.
Without questioning the holding in
LaRue, we now disavow
its reasoning insofar as it relied on the Twenty-first Amendment.
As we explained in a case decided more than a decade after
LaRue, although the Twenty-first Amendment limits the effect
of the dormant Commerce Clause on a State's regulatory power over
the delivery or use of intoxicating beverages within its borders,
"the Amendment does not license the States to ignore their
obligations under other provisions of the Constitution."
Capital
Cities Cable, Inc. v.
Crisp, 467 U. S. 691, 712
(1984). That general conclusion reflects our specific holdings that
the Twenty-first Amendment does not in any way diminish the force
of the Supremacy Clause,
ibid.; California Retail Liquor Dealers
Assn. v.
Midcal Aluminum, Inc., 445 U. S. 97, 112-114
(1980), the Establishment Clause,
Larkin v.
Grendel's
Den, Inc., 459 U.
S. 116, 122, n. 5 (1982), or the Equal Protection Clause,
Craig v.
Boren, 429 U. S. 190, 209
(1976). We see no reason why the First Amendment should not also be
included in that list. Accordingly, we now hold that the
Twenty-first Amendment does not qualify the constitutional
prohibition against laws abridging the freedom of speech embodied
in the First Amendment. The Twenty-first Amendment, therefore,
cannot save Rhode Island's ban on liquor price advertising.
VIII
Because Rhode Island has failed to carry its heavy burden of
justifying its complete ban on price advertising, we conclude that
R. 1. Gen. Laws §§ 3-8-7 and 3-8-8.1 (1987), as well as Regulation
32 of the Rhode Island Liquor Control Administration, abridge
speech in violation of the First Amendment as made applicable to
the States by the Due Process Clause of the Fourteenth Amendment.
The judgment of the Court of Appeals is therefore reversed.
It is so ordered.
517
JUSTICE SCALIA, concurring in part and concurring in the
judgment.
I share JUSTICE THOMAS'S discomfort with the
Central
Hudson test, which seems to me to have nothing more than policy
intuition to support it. I also share JUSTICE STEVENS'S aversion
towards paternalistic governmental policies that prevent men and
women from hearing facts that might not be good for them. On the
other hand, it would also be paternalism for us to prevent the
people of the States from enacting laws that we consider
paternalistic, unless we have good reason to believe that the
Constitution itself forbids them. I will take my guidance as to
what the Constitution forbids, with regard to a text as
indeterminate as the First Amendment's preservation of "the freedom
of speech," and where the core offense of suppressing particular
political ideas is not at issue, from the long accepted practices
of the American people. See
McIntyre v.
Ohio Elections
Comm'n, 514 U. S.
334, 375 (1995) (SCALIA, J., dissenting).
The briefs and arguments of the parties in the present case
provide no illumination on that point; understandably so, since
both sides accepted
Central Hudson. The
amicus brief
on behalf of the American Advertising Federation et al. did examine
various expressions of view at the time the First Amendment was
adopted; they are consistent with First Amendment protection for
commercial speech, but certainly not dispositive. I consider more
relevant the state legislative practices prevalent at the time the
First Amendment was adopted, since almost all of the States had
free speech constitutional guarantees of their own, whose meaning
was not likely to have been different from the federal
constitutional provision derived from them. Perhaps more relevant
still are the state legislative practices at the time the
Fourteenth Amendment was adopted, since it is most improbable that
that adoption was meant to overturn any existing national consensus
regarding free speech. Indeed, it is rare that any nationwide
practice would develop contrary to a proper understanding of the
First Amendment
518
itself-for which reason I think also relevant any national
consensus that had formed regarding state regulation of advertising
after the Fourteenth Amendment, and before this Court's
entry into the field. The parties and their
amici provide no
evidence on these points.
Since I do not believe we have before us the wherewithal to
declare
Central Hudson wrong-or at least the wherewithal to
say what ought to replace it-I must resolve this case in accord
with our existing jurisprudence, which all except JUSTICE THOMAS
agree would prohibit the challenged regulation. I am not disposed
to develop new law, or reinforce old, on this issue, and
accordingly I merely concur in the judgment of the Court. I
believe, however, that JusTICE STEVENS'S treatment of the
application of the Twentyfirst Amendment to this case is correct,
and accordingly join Parts I, II, VII, and VIII of JUSTICE
STEVENS'S opinion.
JUSTICE THOMAS, concurring in Parts I, II, VI, and VII, and
concurring in the judgment.
In cases such as this, in which the government's asserted
interest is to keep legal users of a product or service ignorant in
order to manipulate their choices in the marketplace, the balancing
test adopted in
Central Hudson Gas &
Elec. Corp.
v.
Public Servo Comm'n of N.
Y., 447 U. S. 557 (1980),
should not be applied, in my view. Rather, such an "interest" is
per se illegitimate and can no more justify regulation of
"commercial" speech than it can justify regulation of
"noncommercial" speech.
I
In
Virginia Bd. of Pharmacy v.
Virginia Citizens
Consumer Council, Inc., 425 U. S. 748, 762
(1976), this Court held that speech that does "'no more than
propose a commercial transaction'" was protected by the First
Amendment, and struck down a ban on price advertising regarding
prescription drugs. The Court asserted that a "particular
consumer's interest in the free flow of commercial information"
may
519
be as keen as, or keener than, his interest in "the day's most
urgent political debate,"
id., at 763, and that "the proper
allocation of resources" in our free enterprise system requires
that consumer decisions be "intelligent and well informed,"
id., at 765. The Court also explained that, unless consumers
are kept informed about the operations of the free market system,
they cannot form "intelligent opinions as to how that system ought
to be regulated or altered."
Ibid. See also
id., at
765-766, nn. 19-20.1 The Court sharply rebuffed the State's
argument that consumers would make irresponsible choices if they
were able to choose between higher priced but higher quality
pharmaceuticals accompanied by high quality prescription monitoring
services resulting from a "stable pharmacist-customer
relationshi[p],"
id., at 768, on the one hand, and cheaper
but lower quality pharmaceuticals unaccompanied by such services,
on the other:
"[T]he State's protectiveness of its citizens rests in large
measure on the advantages of their being kept in ignorance. The
advertising ban does not directly affect professional standards one
way or the other. It affects them only through the reactions it is
assumed people will have to the free flow of drug price
information.
"There is, of course, an alternative to this highly
paternalistic approach. That alternative is to assume that this
information is not in itself harmful, that people will perceive
their own best interests, if only they are well enough informed,
and that the best means to that end is to open the channels of
communication rather than to close them .... It is precisely this
kind of choice, between the dangers of suppressing information, and
the dangers of its misuse if it is freely available, that the
1 Accord,
Virginia Ed. of Pharmacy, 425 U. S., at 780, n.
8 (Stewart, J., concurring) (information about price and products
conveyed by advertising may stimulate thought and debate about
political questions).
520
First Amendment makes for us. Virginia is free to require
whatever professional standards it wishes of its pharmacists; it
may subsidize them or protect them from competition in other ways.
But it may not do so by keeping the public in ignorance of the
entirely lawful terms that competing pharmacists are offering. In
this sense, the justifications Virginia has offered for suppressing
the flow of prescription drug price information, far from
persuading us that the flow is not protected by the First
Amendment, have reinforced our view that it is." Id., at
769-770 (citation omitted).
The Court opined
thatfalse or misleading advertising was
not protected, on the grounds that the accuracy of advertising
claims may be more readily verifiable than is the accuracy of
political or other claims, and that "commercial" speech is made
more durable by its profit motive.
Id., at 771, and n. 24.
The Court also made clear that it did not envision protection for
advertising that proposes an illegal transaction.
Id., at
772-773 (distinguishing
Pittsburgh Press Co. v.
Pittsburgh Comm'n on Human Relations, 413 U. S. 376
(1973)).
In case after case following
Virginia Bd. of Pharmacy,
the Court, and individual Members of the Court, have continued to
stress the importance of free dissemination of information about
commercial choices in a market economy; the antipaternalistic
premises of the First Amendment; the impropriety of manipulating
consumer choices or public opinion through the suppression of
accurate "commercial" information; the near impossibility of
severing "commercial" speech from speech necessary to democratic
decisionmaking; and the dangers of permitting the government to do
covertly what it might not have been able to muster the political
support to do openly.2
2 See
Linmark Associates, Inc. v.
Willingboro,
431 U. S. 85,
96-97 (1977);
Bates v.
State Bar of Ariz., 433 U. S. 350, 364-365,
368-369, 374-375, 376377 (1977);
Friedman v.
Rogers,
440 U. S. 1, 8-9
(1979);
id., at 23-24
521
In other decisions, however, the Court has appeared to accept
the legitimacy of laws that suppress information in order to
manipulate the choices of consumers-so long as the government could
show that the manipulation was in fact successful.
Central
Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n
of N.
Y., 447 U. S. 557 (1980), was
the first decision to clearly embrace this position, although the
Court applied a very strict overbreadth analysis to strike down the
advertising ban at issue.3 In two other decisions,
Posadas de
Puerto Rico Associates v.
Tourism Co. of P. R., 478 U. S. 328 (1986), and
United States v.
Edge Broadcasting Co., 509 U. S. 418
(1993), the Court simply presumed that advertising of a product or
service leads to increased consumption; since, as in
Central
Hudson, the Court saw nothing impermissible in the government's
suppressing information in order to discourage consumption, it
upheld the advertising restrictions
(Blackmun, J., for two Justices, concurring in part and
dissenting in part);
Central Hudson Gas &
Elec.
Corp. V.
Public Servo Comm'n of N. Y.,447 U. S. 557,
561-562 (1980);
id., at 566, n. 9;
id., at 575
(Blackmun, J., joined by Brennan, J., concurring in judgment);
id., at 581 (STEVENS, J., also joined by Brennan, J.,
concurring in judgment);
Bolger V.
Youngs Drug Products
Corp., 463 U. S.
60, 79 (1983) (REHNQUIST, J., for two Justices, concurring in
judgment);
Zauderer V.
Office of Disciplinary Counsel of
Supreme Court of Ohio, 471 U. S. 626, 646
(1985);
Posadas de Puerto Rico Associates V.
Tourism Co.
of P. R., 478 U.
S. 328, 350-351, 358 (1986) (Brennan, J., for three Justices,
dissenting);
Cincinnati V.
Discovery Network, Inc.,
507 U. S. 410,
421-422, n. 17 (1993);
id., at 432 (Blackmun, J.,
concurring);
Edenfield V.
Fane, 507 U. S. 761, 767, 770
(1993);
United States V.
Edge Broadcasting Co.,
509 U. S. 418,
437-439, and nn. 1, 3, 4 (1993) (STEVENS, J., for two Justices,
dissenting);
Ibanez V.
Florida Dept. of Business and
Professional Regulation, Bd. of Accountancy, 512 U. S. 136, 142-143
(1994); Rubin V.
Coors Brewing Co., 514 U. S. 476, 481-482
(1995);
id., at 492-493, 494 (STEVENS, J., concurring in
judgment);
Florida Bar V.
Went For It, Inc., 515 U. S. 618, 639-640,
644-645 (1995) (KENNEDY, J., for four Justices, dissenting).
3 The Court found that although the total effect of the
advertising ban would be to decrease consumption, the advertising
ban impermissibly extended to some advertising that itself might
not increase consumption.
Central Hudson, supra, at
569-571.
522
in those cases. Posadas, supra, at 341-342; Edge, supra, at 425,
433-434.
The Court has at times appeared to assume that "commercial"
speech could be censored in a variety of ways for any of a variety
of reasons because, as was said without clear rationale in some
post-Virginia Bd. of Pharmacy cases, such speech was in a
"subordinate position in the scale of First Amendment values,"
Ohralik v.
Ohio State Bar Assn., 436 U. S. 447, 456
(1978);
Board of Trustees of State Univ. of N.
Y. v.
Fox, 492 U. S.
469, 478 (1989);
Florida Bar v.
Went For It,
Inc., 515 U. S.
618, 623 (1995), or of "less constitutional moment,"
Central
Hudson, supra, at 562-563, n. 5. But see
Cincinnati v.
Discovery Network, Inc., 507 U. S. 410, 418419
(1993) (rejecting this assertion);
id., at 431 (Blackmun,
J., concurring) (same). I do not see a philosophical or historical
basis for asserting that "commercial" speech is of "lower value"
than "noncommercial" speech. Indeed, some historical materials
suggest to the contrary. See,
e. g., ante, at 495-496
(citing Franklin's Apology for Printers);
Ex parte Jackson,
96 U. S. 727, 733
(1878) (dictum that Congress could not, consistent with freedom of
the press, prevent the circulation of lottery advertising through
methods other than the United States mail); see also
In re
Rapier, 143 U. S.
110, 134-135 (1892) (continuing to assume that freedom of the
press prevents Congress from prohibiting circulation of newspapers
containing lottery advertisements);
Lewis Publishing Co. v.
Morgan, 229 U.
S. 288, 315 (1913) (same); see generally Brief for American
Advertising Federation et al. as
Amici Curiae 12-24 (citing
authorities for propositions that commercial activity and
advertising were integral to life in colonial America and that
Framers' political philosophy equated liberty and property and did
not distinguish between commercial and noncommercial messages). Nor
do I believe that the only explanations that the Court has ever
advanced for treating "commercial" speech differently from other
speech can justify restricting "commercial" speech in
523
order to keep information from legal purchasers so as to thwart
what would otherwise be their choices in the marketplace.4
II
I do not join the principal opinion's application of the
Central Hudson balancing test because I do not believe that
such a test should be applied to a restriction of "commercial"
speech, at least when, as here, the asserted interest is one that
is to be achieved through keeping would-be recipients of the speech
in the dark.5 Application of the advancementof-state-interest prong
of
Central Hudson makes little sense to me in such
circumstances. Faulting the State for failing to show that its
price advertising ban decreases alcohol consumption
"significantly," as JUSTICE STEVENS does,
ante, at 507
(emphasis deleted), seems to imply that if the State had been
more successful at keeping consumers ignorant and thereby
decreasing their consumption, then the restriction might have been
upheld. This contradicts
Virginia Bd. of
4 As noted above, the asserted rationales for differentiating
"commercial" speech from other speech are (1) that the truth of
"commercial" speech is supposedly more verifiable, and (2) that
"commercial speech, the offspring of economic self-interest" is
supposedly a "hardy breed of expression that is not particularly
susceptible to being crushed by overbroad regulation."
Central
Hudson, supra, at 564, n. 6 (internal quotation marks omitted).
The degree to which these rationales truly justify treating
"commercial" speech differently from other speech (or indeed,
whether the requisite distinction can even be drawn) is open to
question, in my view. See Kozinski & Banner, Who's Afraid of
Commercial Speech, 76 Va. L. Rev. 627, 634-638 (1990) (questioning
basis for drawing distinction);
id., at 638-650 (questioning
coherence of distinction). In any event, neither of these
rationales provides any basis for permitting government to keep
citizens ignorant as a means of manipulating their choices in the
commercial or political marketplace.
5 In other words, I do not believe that a
Central
Hudson-type balancing test should apply when the asserted
purpose is like the one put forth by the government in
Central
Hudson itself. Whether some type of balancing test is warranted
when the asserted state interest is of a different kind is a
question that I do not consider here.
524
Pharmacy's rationale for protecting "commercial" speech
in the first instance.
Both JUSTICE STEVENS and JUSTICE O'CONNOR appear to adopt a
stricter, more categorical interpretation of the fourth prong of
Central Hudson than that suggested in some of our other
opinions,6 one that could, as a practical matter, go a long way
toward the position I take. The State argues that keeping
information about lower priced alcohol from consumers will tend to
raise the total price of alcohol to consumers (defined as money
price plus the costs of searching out lower priced alcohol, see
Brief for Respondents 23), thus discouraging alcohol consumption.
In their application of the fourth prong, both JUSTICE STEVENS and
JUSTICE O'CONNOR hold that because the State can ban the sale of
lower priced alcohol altogether by instituting minimum prices or
levying taxes, it cannot ban advertising regarding lower priced
liquor. Although the tenor of JUSTICE O'CONNOR'S opinion (and, to a
lesser extent, that of JUSTICE STEVENS' opinion) might suggest that
this is just another routine case-by-case application of
Central
Hudson's fourth prong, the Court's holding will in fact be
quite sweeping if applied consistently in future cases. The
opinions would appear to commit the courts to striking down
restrictions on speech whenever a direct regulation (i.
e.,
a regulation involving no restriction on speech regarding lawful
activity at all) would be an equally effective method of dampening
demand by legal users. But it would seem that directly banning a
product (or rationing it, taxing it, controlling its price, or
otherwise restricting its sale in specific ways) would virtually
always be at least as effective in discouraging consumption as
merely restricting advertising regarding the product would be, and
thus virtually all restrictions with such a purpose would fail the
fourth prong of the
Central Hudson test.
6 E. g., Cincinnati v.
Discovery
Network, 507 U. S., at 417, n. 13 (commercial speech
restrictions impermissible if alternatives are "numerous" and
obvious).
525
This would be so even if the direct regulation is, in one sense,
more restrictive of
conduct generally. In this case, for
example, adoption of minimum prices or taxes will mean that those
who, under the current legal system, would have happened across
cheap liquor or would have sought it out, will be forced to pay
more. Similarly, a State seeking to discourage liquor sales would
have to ban sales by convenience stores rather than banning
convenience store liquor advertising; it would have to ban liquor
sales after midnight, rather than banning advertising by late-night
liquor sellers; and so on.
The upshot of the application of the fourth prong in the
opinions of JUSTICE STEVENS and of JUSTICE O'CONNOR seems to be
that the government may not, for the purpose of keeping would-be
consumers ignorant and thus decreasing demand, restrict advertising
regarding commercial transactions-or at least that it may not
restrict advertising regarding commercial transactions except to
the extent that it outlaws or otherwise directly restricts the same
transactions within its own borders.7 I welcome this outcome;
but,
7The two most obvious situations in which no equally effective
direct regulation will be available for discouraging consumption
(and thus, the two situations in which the Court and I might differ
on the outcome) are: (1) When a law directly regulating conduct
would violate the Constitution
(e. g., because the item is
constitutionally protected), or (2) when the sale is to occur
outside the State's borders.
As to the first situation: Although the Court's application of
the fourth prong today does not specifically foreclose regulations
or bans of advertising regarding items that cannot constitutionally
be banned, it would seem strange to hold that the government's
power to interfere with transmission of information regarding these
items, in order to dampen demand for them, is more extensive than
its power to restrict, for the same purpose, advertising of items
that are not constitutionally protected. Cf.
Bigelow
As to the second situation: When a State seeks to dampen
consumption by its citizens of products or services outside its
borders, it does not have the option of direct regulation. Here, a
respondent correctly points out that alternatives such as taxes
will
not be effective in discouraging sales
526
rather than "applying" the fourth prong of
Central Hudson
to reach the inevitable result that all or most such advertising
restrictions must be struck down, I would adhere to the doctrine
adopted in
Virginia Bd. of Pharmacy and in Justice
Blackmun's
Central Hudson concurrence, that all attempts to
dissuade legal choices by citizens by keeping them ignorant are
impermissible.
III
Although the Court took a sudden turn away from
Virginia Bd.
of Pharmacy in
Central Hudson, it has never explained
why manipulating the choices of consumers by keeping them ignorant
is more legitimate when the ignorance is maintained through
suppression of "commercial" speech than when the same ignorance is
maintained through suppression of "noncommercial" speech. The
courts, including this
to Rhode Island residents of lower priced alcohol outside the
State, see Brief for Respondent Rhode Island Liquor Stores
Association 27; yet the Court strikes down the ban against price
advertising even as applied to out-of-state liquor sellers such as
petitioner Peoples Super Liquor Stores. Perhaps JUSTICE STEVENS and
JUSTICE O'CONNOR would distinguish a situation in which a State had
actually banned sales of lower priced alcohol within the State and
had then, through a ban of advertising by out-of-state sellers,
sought to keep residents ignorant of the fact that lower priced
alcohol was legally available in other States. Cf.
United
States v.
Edge Broadcasting Co., 509 U. S. 418 (1993). See
ante, at 508-510.
The outcome in
Edge may well be in conflict with the
principles espoused in
Virginia Bd. of Pharmacy and ratified
by me today. See
Edge, supra, at 436-439 (STEVENS, J.,
dissenting). (In
Edge, respondent did not put forth the
broader principles adopted in
Virginia Bd. of Pharmacy, but
rather argued that the advertising restriction did not have a
sufficiently close fit under
Central Hudson.) Because the
issue of restrictions on advertising of products or services to be
purchased legally outside a State that has itself banned or
regulated the same purchases within the State is not squarely
presented in this case, I will not address here whether the
decision in
Edge can be reconciled with the position I take
today.
527
Court, have found the
Central Hudson "test" to be, as a
general matter, very difficult to apply with any uniformity.8 This
may result in part from the inherently nondeterminative nature of a
case-by-case balancing "test" unaccompanied by any categorical
rules, and the consequent likelihood that individual judicial
preferences will govern application of the test.9 Moreover, the
second prong of
Central Hudson, as applied to the facts of
that case and to those here, apparently
8 See,
e. g., Kozinski & Banner, 76 Va. L.
Rev., at 630-631 (citing cases); Wright, Freedom and Culture: Why
We Should Not Buy Commercial Speech, 72 Denver U. L. Rev. 137,
162-166 (1994) (citing cases); Kasakove,
New York State
Association of Realtors, Inc. v.
Shaffer: When the
Second Circuit Chooses Between Free Speech and Fair Housing, Who
Wins?, 61 Brooklyn L. Rev. 397, 409-410, and nn. 71, 73, 418
(1995); Note,
Dunagin v.
City of Oxford:
Mississippi's Suppression of Liquor Advertising, 63 Detroit L. Rev.
175, 184-187 (1985); Faille, Spinning the Roulette Wheel:
Commercial Speech and Philosophical Cogency, Fed. B. N. & J.
58, 60-62 (1994); Margulies, Connecticut's Free Speech Clauses: A
Framework and an Agenda, 65 Conn. Bar J. 437, 440, n. 20 (1991)
(citing cases).
9 The third prong of
Central Hudson is far from a
mechanical one. In
Posadas, Edge, and other cases, the Court
has presumed that advertising bans decrease consumption. Here, by
contrast, the principal opinion demands
proof of a
"significant" decrease in consumption, and finds it lacking. But
petitioners' own expert testified at one point that, taking into
account disposable income, price was a "potent" influence on
alcohol consumption, see App. 79; and the American Medical
Association had apparently concluded that advertising of alcohol in
general increased total alcohol consumption sufficiently to make a
ban on advertising worthwhile, see
44 Liquor Mart, Inc. v.
Racine, 829 F. Supp. 543, 548 (RI 1993). A court more
inclined to uphold the ban here could have pointed to these facts
in support.
The courts have also had difficulty applying the fourth prong
because the outcome has depended upon the level of generality with
which the interest was described. See Faille,
supra, at 58,
60. If today's strict application of the fourth prong survives, it
will clarify the prong's application in a large number of cases,
since, as noted above, it will simply invalidate most restrictions
in which the government attempts to manipulate consumption through
enforced ignorance rather than through direct regulation.
528
requires judges to delineate those situations in which citizens
cannot be trusted with information, and invites judges to decide
whether they themselves think that consumption of a product is
harmful enough that it
should be discouraged.10 In my view,
the
Central Hudson test asks the courts to weigh
incommensurables-the value of knowledge versus the value of
ignorance-and to apply contradictory premises-that informed adults
are the best judges of their own interests, and that they are not.
Rather than continuing to apply a test that makes no sense to me
when the asserted state interest is of the type involved here, I
would return to the reasoning and holding of
Virginia Bd. of
Pharmacy. Under that decision, these restrictions
fall.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE SOUTER,
and JUSTICE BREYER join, concurring in the judgment.
Rhode Island prohibits advertisement of the retail price of
alcoholic beverages, except at the place of sale. The State's only
asserted justification for this ban is that it promotes temperance
by increasing the cost of alcoholic beverages. Brief for Respondent
State of Rhode Island 22. I agree with the Court that Rhode
Island's price-advertising ban is invalid. I would resolve this
case more narrowly, however, by applying our established
Central
Hudson test to determine whether this commercial speech
regulation survives First Amendment scrutiny.
Under that test, we first determine whether the speech at issue
concerns lawful activity and is not misleading, and whether the
asserted governmental interest is substantial. If both these
conditions are met, we must decide whether the regulation "directly
advances the governmental interest asserted, and whether it is not
more extensive than is necessary to serve that interest."
Central Hudson Gas &
Elec.
10 See
ante, at 514 (noting that scope of any "vice"
category of products would be difficult to define).
529
Corp. v. Public Servo Comm'n of N. Y.,
447 U. S. 557, 566
(1980).
Given the means by which this regulation purportedly serves the
State's interest, our conclusion is plain: Rhode Island's
regulation fails First Amendment scrutiny.
Both parties agree that the first two prongs of the
Central
Hudson test are met. Even if we assume,
arguendo, that
Rhode Island's regulation also satisfies the requirement that it
directly advance the governmental interest, Rhode Island's
regulation fails the final prong; that is, its ban is more
extensive than necessary to serve the State's interest.
As we have explained, in order for a speech restriction to pass
muster under the final prong, there must be a fit between the
legislature's goal and method, "a fit that is not necessarily
perfect, but reasonable; that represents not necessarily the single
best disposition but one whose scope is in proportion to the
interest served."
Board of Trustees of State Univ. of N.
Y. v.
Fox, 492 U. S. 469, 480 (1989)
(internal quotation marks omitted). While the State need not employ
the least restrictive means to accomplish its goal, the fit between
means and ends must be "narrowly tailored."
Ibid. The scope
of the restriction on speech must be reasonably, though it need not
be perfectly, targeted to address the harm intended to be
regulated. See
Florida Bar v.
Went For It, Inc.,
515 U. S. 618,
632-634 (1995). The State's regulation must indicate a "carefu[l]
calculat[ion of] the costs and benefits associated with the burden
on speech imposed by its prohibition."
Cincinnati v.
Discovery Network, Inc., 507 U. S. 410, 417 (1993)
(internal quotation marks omitted). The availability of less
burdensome alternatives to reach the stated goal signals that the
fit between the legislature's ends and the means chosen to
accomplish those ends may be too imprecise to withstand First
Amendment scrutiny. See
Rubin v.
Coors Brewing Co.,
514 U. S. 476,
486-487 (1995);
Cincinnati, supra, at 417, n. 13. If
alternative channels permit communication of the restricted speech,
the regulation is
530
more likely to be considered reasonable. See
Florida Bar,
supra, at 632-634.
Rhode Island offers one, and only one, justification for its ban
on price advertising. Rhode Island says that the ban is intended to
keep alcohol prices high as a way to keep consumption low. By
preventing sellers from informing customers of prices, the
regulation prevents competition from driving prices down and
requires consumers to spend more time to find the best price for
alcohol. Brief for Respondent State of Rhode Island 22. The higher
cost of obtaining alcohol, Rhode Island argues, will lead to
reduced consumption.
The fit between Rhode Island's method and this particular goal
is not reasonable. If the target is simply higher prices generally
to discourage consumption, the regulation imposes too great, and
unnecessary, a prohibition on speech in order to achieve it. The
State has other methods at its disposalmethods that would more
directly accomplish this stated goal without intruding on sellers'
ability to provide truthful, nonmisleading information to
customers. Indeed, Rhode Island's own expert conceded that" 'the
objective of lowering consumption of alcohol by banning price
advertising could be accomplished by establishing minimum prices
and/or by increasing sales taxes on alcoholic beverages.'''
39 F.3d
5, 7 (CA1 1994). A tax, for example, is not normally very
difficult to administer and would have a far more certain and
direct effect on prices, without any restriction on speech. The
principal opinion suggests further alternatives, such as limiting
per capita purchases or conducting an educational campaign about
the dangers of alcohol consumption.
Ante, at 507. The ready
availability of such alternatives-at least some of which would far
more effectively achieve Rhode Island's only professed goal, at
comparatively small additional administrative cost-demonstrates
that the fit between ends and means is not narrowly tailored. Too,
this regulation prevents sellers of alcohol from communicating
price information anywhere but at the point of purchase. No
channels
531
exist at all to permit them to publicize the price of their
products.
Respondents point for support to
Posadas de Puerto Rico
Associates v.
Tourism Co. of P. R., 478 U. S. 328 (1986),
where, applying the
Central Hudson test, we upheld the
constitutionality of a Puerto Rico law that prohibited the
advertising of casino gambling aimed at residents of Puerto Rico,
but permitted such advertising aimed at tourists.
The Court there accepted as reasonable the legislature's belief
that the regulation would be effective, and concluded that, because
the restriction affected only advertising of casino gambling aimed
at residents of Puerto Rico, not that aimed at tourists, the
restriction was narrowly tailored to serve Puerto Rico's interest.
478 U. S., at 341-344. The Court accepted without question Puerto
Rico's account of the effectiveness and reasonableness of its
speech restriction. Respondents ask us to make a similar
presumption here to uphold the validity of Rhode Island's law.
It is true that
Posadas accepted as reasonable, without
further inquiry, Puerto Rico's assertions that the regulations
furthered the government's interest and were no more extensive than
necessary to serve that interest. Since
Posadas, however,
this Court has examined more searchingly the State's professed
goal, and the speech restriction put into place to further it,
before accepting a State's claim that the speech restriction
satisfies First Amendment scrutiny. See,
e. g., Florida Bar
v.
Went For It, Inc., supra; Rubin v.
Coors Brewing Co.,
supra; Ibanez v.
Florida Dept. of Business and Professional
Regulation, Bd. of Accountancy, 512 U. S. 136
(1994); Edenfield v.
Fane, 507 U. S. 761 (1993);
Cincinnati v.
Discovery Network, Inc., supra. In each
of these cases we declined to accept at face value the proffered
justification for the State's regulation, but examined carefully
the relationship between the asserted goal and the speech
restriction used to reach that goal. The closer look that we have
required since
Posadas comports better with the purpose
of
532
the analysis set out in
Central Hudson, by requiring the
State to show that the speech restriction directly advances its
interest and is narrowly tailored. Under such a closer look, Rhode
Island's price-advertising ban clearly fails to pass muster.
Because Rhode Island's regulation fails even the less stringent
standard set out in
Central Hudson, nothing here requires
adoption of a new analysis for the evaluation of commercial speech
regulation. The principal opinion acknowledges that "even under the
less than strict standard that generally applies in commercial
speech cases, the State has failed to establish a reasonable fit
between its abridgment of speech and its temperance goal."
Ante, at 507 (internal quotation marks omitted). Because we
need go no further, I would not here undertake the question whether
the test we have employed since
Central Hudson should be
displaced.
Respondents argue that an additional factor, the Twentyfirst
Amendment, tips the First Amendment analysis in Rhode Island's
favor.
The Twenty-first Amendment repealed the prohibition on the
manufacture, sale, or transportation of intoxicating liquors that
had been established by the Eighteenth Amendment. Section 2 of the
Twenty-first Amendment created an exception to the normal operation
of the Commerce Clause, to permit States to prohibit commerce in,
or the use of, alcoholic beverages.
Craig v.
Boren,
429 U. S. 190,
206 (1976).
In its examination of Rhode Island's statute, the Court of
Appeals erroneously concluded that the Twenty-first Amendment
provided an "added presumption in favor of the validity of the
state regulation." 39 F. 3d, at 7-9 (internal quotation marks
omitted). The Twenty-first Amendment cannot save an otherwise
invalid restriction on speech.
Nothing in the Amendment's text or history justifies its use to
alter the application of the First Amendment. "[O]ur prior cases
have made clear that the [Twenty-first] Amend-
533
ment does not license the States to ignore their obligations
under other provisions of the Constitution."
Capital Cities
Cable, Inc. v.
Crisp, 467 U. S. 691, 712
(1984). See also
Larkin v.
Grendel's Den, Inc.,
459 U. S. 116,
122, n. 5 (1982) ("The State may not exercise its power under the
Twenty-first Amendment in a way which impinges upon the
Establishment Clause of the First Amendment");
Craig, supra,
at 206 ("Neither the text nor the history of the Twenty-first
Amendment suggests that it qualifies individual rights protected by
the Bill of Rights and the Fourteenth Amendment where the sale or
use of liquor is concerned" (internal quotation marks omitted)).
The Twenty-first Amendment does not trump First Amendment rights or
add a presumption of validity to a regulation that cannot otherwise
satisfy First Amendment requirements.
The Court of Appeals relied on
California v.
LaRue,
409 U. S. 109, 118-119 (1972), for its determination that the
Twenty-first Amendment provided an "added presumption" of the
regulation's validity. There, this Court upheld a State's
regulations prohibiting establishments licensed to sell liquor by
the drink from offering explicitly sexual entertainment. As we
recently explained in
Coors, "LaRue did not involve
commercial speech about alcohol, but instead concerned the
regulation of nude dancing in places where alcohol was served." 514
U. S., at 483, n. 2. The cases following
LaRue similarly
involved the regulation of nude or nearly nude dancing in
establishments licensed to serve alcohol.
New York State Liquor
Authority v.
Bellanca, 452 U. S. 714 (1981)
(per curiam); Newport v.
Iacobucci, 479 U. S. 92 (1986)
(per curiam). Nothing in
LaRue suggested that the
Twenty-first Amendment would permit a State to prohibit the kind of
speech at issue here, and as discussed above, the text and history
of the Twenty-first Amendment clearly indicate that the Amendment
was
not intended to supplant the general application of
constitutional provisions, except for its limited exception to the
Commerce Clause's normal
534
operation. Indeed,
LaRue notes that prior decisions "did
not go so far as to hold or say that the Twenty-first Amendment
supersedes all other provisions of the United States Constitution
in the area of liquor regulations," 409 U. S., at 115, and
LaRue certainly does not stand for that proposition. The
Court of Appeals' reliance on
LaRue was misplaced.
Rhode Island's prohibition on alcohol-price advertising, as a
means to keep alcohol prices high and consumption low, cannot
survive First Amendment scrutiny. The Twentyfirst Amendment cannot
save this otherwise invalid regulation. While I agree with the
Court's finding that the regulation is invalid, I would decide that
issue on narrower grounds. I therefore concur in the judgment.
Comments
Be the first to comment
Leave a Comment