COMMENTS

44 Liquormart, Inc. v. Rhode Island:

A Toast to the First Amendment

  Introduction

"[S]peech does not lose its First Amendment protection [merely] because money is spent to project it,"⁽¹⁾ because it is "in a form that is sold for profit,"⁽²⁾ or because it involves a "solicitation to purchase or otherwise pay . . . money."⁽³⁾ The only question remaining is the level of protection the First Amendment affords commercial speech. This Comment concerns the constitutional right of businesses and individuals to communicate commercial messages about legal products and services, such as the price of alcohol, and whether that constitutional right can survive governmental attempts to restrict the messages for what the government perceives to be for the public's own good.

In 44 Liquormart, Inc. v. Rhode Island,⁽⁴⁾ the United States Supreme Court struck down two Rhode Island statutes that prohibited the advertisement of alcohol prices anywhere in Rhode Island except at the point of purchase.⁽⁵⁾ In striking down Rhode Island's alcohol price advertising ban, the Court reaffirmed its aversion to government's paternalistic attempts to sway consumer behavior by restricting information consumers require to make informed decisions; while the judgment of the Court was unanimous, however, the Court was drastically split on its reasoning.⁽⁶⁾ Still, if 44 Liquormart is a worthy indication, the trend of the Court appears to be toward affording commercial speech nearly the same First Amendment protection that other types of protected speech receive.

Part II of this Comment gives a brief and general history of the Court's commercial speech jurisprudence.⁽⁷⁾ Part III recounts the facts of 44 Liquormart and traces the case through the district court and court of appeals proceedings.⁽⁸⁾ Part IV focuses on, and attempts to clarify, the several opinons of the Supreme Court Justices.⁽⁹⁾ Finally, Part V addresses what effect, if any, the Court's holding in 44 Liquormart will have on future commercial speech cases and on certain cases already embroiled in controversy.⁽¹⁰⁾

  Background

Prior to the 1970s, commercial speech received little, if any, protection.⁽¹¹⁾ The 1970s, however, brought a change to the United States Supreme Court's philosophy.⁽¹²⁾ The Court's opinion in Bigelow v. Virginia⁽¹³⁾ all but dispelled the notion that commercial speech was unprotected. The appellant in Bigelow, after running an advertisement in his local newspaper offering help for women with unwanted pregnancies, was convicted of violating a Virginia statute,⁽¹⁴⁾ which prohibited the sale or circulation of any publication that encouraged or promoted the procuring of an abortion.⁽¹⁵⁾ In overturning Bigelow's conviction, the Court drastically limited the holding of Valentine v. Chrestensen.⁽¹⁶⁾ The Court stated that Chrestensen only allowed "reasonable regulation of the manner in which commercial advertising could be distributed,"⁽¹⁷⁾ and it noted that the validity of Chrestensen had been questioned.⁽¹⁸⁾ The Court went on to distinguish Chrestensen, noting that the advertisement in Bigelow "did more than simply propose a commercial transaction."⁽¹⁹⁾ "[The advertisement] contained factual material of `clear public interest.'"⁽²⁰⁾ Although the Bigelow Court refrained from deciding the extent to which the First Amendment protected commercial speech under all circumstances, the Court made it clear that First Amendment interests must be balanced against governmental interests when regulating commercial activity.⁽²¹⁾

The following year, the Court began to refine its commercial speech jurisprudence, dismissing paternalism in favor of consumer wisdom.⁽²²⁾ In Virginia State Board of Pharmacy v. Virginia Consumer Council, Inc.,⁽²³⁾ the Court struck down a Virginia statute,⁽²⁴⁾ which provided that a licensed pharmacist was "guilty of unprofessional conduct" if he advertised price information about his services, drugs containing narcotics, or any prescription drugs.⁽²⁵⁾ The state's primary justification for the statute was to maintain a high degree of professionalism among pharmacists, a goal in which the state had an indisputably strong interest.⁽²⁶⁾ The message sought to be communicated was simply "I will sell you the X prescription drug at the Y price."⁽²⁷⁾ The question before the Court, therefore, was "whether speech which does `no more than propose a commercial transaction,' . . . is so removed from any `exposition of ideas' . . . and from `truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of government," . . . that it lacks all protection."⁽²⁸⁾ The Court answered that the commercial speech at issue was not so removed.⁽²⁹⁾

Focusing on the parties to the transaction proposed in the commercial advertisement, the Court first noted that the advertiser's purely economic interest did not disqualify him from First Amendment protection.⁽³⁰⁾ The Court also noted that the consumer has an interest in the "free flow of commercial information," which "may be as keen, if not keener by far, than his interest in the day's most urgent political debate."⁽³¹⁾ Furthermore, citing prior cases in which commercial advertisements contained information of general public interest, the Court also recognized society's interest in the free flow of information.⁽³²⁾

More important than matters of general public interest supplied in commercial advertisements is the extent to which the free flow of information "enlighten[s] public decision-making," a goal of which the First Amendment was traditionally thought to be a primary instrument.⁽³³⁾ The allocation of resources in a free enterprise economy, such as ours, is made largely through private economic decisions, and "it is a matter of public interest that those decisions [generally] be intelligent and well informed."⁽³⁴⁾ "To this end, the free flow of commercial information is indispensable."⁽³⁵⁾

Turning to the specific facts of Virginia Board of Pharmacy, the Court first addressed the State's several justifications for the ban on price advertising.⁽³⁶⁾ In addition to maintaining the professional image of the pharmacist, the State argued that the expense of advertising might actually inflate the cost of drugs.⁽³⁷⁾ The State feared that some competitors would eliminate other professional services in order to advertise the resulting lower price, and others would be forced to do the same or go out of business.⁽³⁸⁾ Finally, the State argued that consumer price shopping for pharmacists would result in the "loss of stable pharmacist-customer relationships," resulting in the pharmacist's inability to offer individual attention and monitoring.⁽³⁹⁾ While the strength of these justifications were greatly undermined by the extent to which high professional standards were already assured by the close regulation to which pharmacists in Virginia were subject, the Court did not entirely discount them.⁽⁴⁰⁾ Instead, the Court took a dim view of the paternalistic way in which the State sought to protect its citizens.⁽⁴¹⁾

The price advertising ban in Virginia Board of Pharmacy affected professional standards only indirectly, by preventing the reactions the State assumed people would have to the free flow of price information.⁽⁴²⁾ Assuming that its citizens would misuse price information, the State sought to protect them by keeping them ignorant of such information, rather than allowing its citizens to use the information in a manner that the consumer perceived to be in his or her best interests.⁽⁴³⁾ As the Court stated, hoaever, "[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."⁽⁴⁴⁾ In fact, the Court, in later cases, even espoused the view that advertising should not be restricted on the ground that it contains only incomplete information.⁽⁴⁵⁾ "[A]t least some of the relevant information needed for a consumer to reach an informed decision" is still better than no information at all.⁽⁴⁶⁾ Finally, with the Court's recognition of a less restrictive alternative to Virginia's paternalistic approach--namely, the assumption that "the information itself is not 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 channels of communication rather than to close them"⁽⁴⁷⁾--the stage was set for further judicial refinement.

Further refinement came in Central Hudson Gas & Electric Corp. v. Public Service Commission,⁽⁴⁸⁾ in the form of a four-prong test which, unless satisfied, would prevent the government from restricting commercial speech.⁽⁴⁹⁾ The first prong of the test requires that the speech must be "neither misleading nor related to unlawful activity."⁽⁵⁰⁾ Because the First Amendment protection of commercial speech is based on the informational function of advertising, "the government may ban communication more likely to deceive the public than inform it, . . . or [it may ban] commercial speech related to illegal activity."⁽⁵¹⁾ Second, "[t]he state must assert a substantial interest to be achieved by restrictions on commercial speech."⁽⁵²⁾ Third, "the restriction must directly advance the state interest involved."⁽⁵³⁾ Finally, "if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive."⁽⁵⁴⁾ While the four-prong test was defined in Central Hudson, the test's requirements were culled from previous cases.⁽⁵⁵⁾ Although the Central Hudson test provided the Court with a uniform framework to assess the constitutionality of commercial speech restrictions, application of the test has proven to be anything but uniform.⁽⁵⁶⁾

In Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico,⁽⁵⁷⁾ the appellant challenged the constitutionality of a regulation that banned gambling rooms from advertising or otherwise offering their facilities to residents of Puerto Rico.⁽⁵⁸⁾ The commercial speech at issue in Posadas was not related to illegal activity, nor was it misleading or fraudulent, so it passed the first prong of the Central Hudson test.⁽⁵⁹⁾ The Court then focused on the remaining three prongs of the Central Hudson test: whether the government's interets were substantial; whether the restrictions directly advanced that substantial interest; and whether the restrictions were no more extensive than necessary to serve that interest.⁽⁶⁰⁾

While the Puerto Rico legislature wanted tourists to gamble in casinos, it believed that excessive casino gambling among local residents would produce the same harmful effects on the health, safety, and welfare of its citizens as those that led most states to prohibit casino gambling.⁽⁶¹⁾ Consequently, the Court held that Puerto Rico's interest in the health, safety, and welfare of its citizens was a substantial governmental interest.⁽⁶²⁾

In determining whether the restriction on commercial speech directly advanced Puerto Rico's substantial governmental interest, the Court relied on a previous case in which it held that "[the] third prong of [the] Central Hudson test [is] satisfied where legislative judgment [is] `not manifestly unreasonable.'"⁽⁶³⁾ In Posadas, the Court viewed as reasonable Puerto Rico's belief that casino advertising aimed at local residents would increase demand for the product advertised.⁽⁶⁴⁾ Thus, the Court held that the restriction on commercial speech directly advanced Puerto Rico's substantial governmental interest in the health, safety, and welfare of its citizens.⁽⁶⁵⁾

Because the restriction only affected the advertising of casino gambling aimed at local residents and not tourists, the restriction was not as extensive as it could have been.⁽⁶⁶⁾ The appellant in Posadas suggested that "promulgating additional speech[] to discourage [gambling]" would serve Puerto Rico's interest without suppressing commercial speech at all.⁽⁶⁷⁾ The Court, however, chose to ignore the less restrictive alternative and instead defer to the judgment of the Puerto Rico legislature in determining whether the restriction was no more extensive than necessary.⁽⁶⁸⁾ In Posadas, casino gambling was not a constitutionally protected activity, and therefore, Puerto Rico could have prohibited its residents from gambling in casinos altogether.⁽⁶⁹⁾ In what was perhaps the most controversial part of the opinion, the Court stated, in dicta, that in its view, "the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling."⁽⁷⁰⁾ The restriction, therefore, was no more extensive than necessary to achieve Puerto Rico's substantial governmental interest, and the ban on advertising casino gambling to local residents was upheld.⁽⁷¹⁾

In United States v. Edge Broadcasting Co.,⁽⁷²⁾ the Supreme Court addressed whether a statute directly advanced Congress' substantial governmental interest and whether the restriction was more extensive than necessary.⁽⁷³⁾ At issue in Edge Broadcasting was a Congressional statute that allowed newspapers and broadcasters to advertise state-run lotteries only "if the newspaper[s] [were] published in, or the broadcast[ers] [were] licensed to a State which conduct[ed] a state-run lottery."⁽⁷⁴⁾ Edge Broadcasting Company was located in North Carolina, which did not sponsor a lottery, but was only three miles from Virginia, which did sponsor a lottery.⁽⁷⁵⁾ Consequently, Edge was prohibited from advertising Virginia's lottery even though ninety-two percent of Edge's market consisted of Virginia listeners and even though the North Carolina residents reached by Edge's broadcasts were inundated with lottery advertisements from stations licensed in Virginia.⁽⁷⁶⁾ The Court recognized that Congress' substantial interest in imposing the restriction was not to insulate a non-lottery state's listeners from lottery ads, but to balance the interests of lottery and non-lottery states.⁽⁷⁷⁾ In light of the states' possibly competing interests, the statute directly served Congress' interest in achieving a balance. Thus, the third prong, or the "directly advance" prong of the Central Hudson test was satisfied.⁽⁷⁸⁾

The Court clarified that the "no more extensive than necessary" prong of the Central Hudson test did not require a perfect fit between the restriction and the governmental interest, only a reasonable one.⁽⁷⁹⁾ "[T]he requirement of narrow tailoring was met if `the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation,' provided that it did not burden substantially more speech than necessary to further the government's legitimate interest."<sup>(80)</sup> The Court further stated that "`the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government's interest in an individual case.'"⁽⁸¹⁾ In other words, although the Court found that the restriction, as applied to Edge, still supported Congress' interest, the Court appeared to suggest that a restriction was no more extensive than necessary and was narrowly tailored if it reasonably furthered the government's legitimate interest overall, regardless of whether it did so in a particular case.⁽⁸²⁾ In fact, just prior to deciding Edge Broadcasting, the Court reworded the fourth prong of the Central Hudson test to ask "whether the extent of the restriction on protected speech is in reasonable proportion to the interests served."⁽⁸³⁾

In Edenfield v. Fane,⁽⁸⁴⁾ the Court clearly identified the Central Hudson test as an intermediate standard of review.⁽⁸⁵⁾ Edenfield involved a Florida statute that banned uninvited in-person solicitation by certified public accountants.⁽⁸⁶⁾ Despite the rewording of the Central Hudson test and the declaration that the test subjected commercial speech restrictions to only an intermediate standard of review, the Court departed from its practice, established in Posadas, of deferring to the legislature's claims that a restriction directly advances a governmental interest and that it is no more extensive than necessary (or at least "in reasonable proportion to the interests served").⁽⁸⁷⁾ The Court strengthened the third prong of the Central Hudson test by declaring that the burden of showing that a restriction directly advances the state's interest "is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree."⁽⁸⁸⁾ The Court held that Florida did not meet its burden of demonstrating that the ban on in-person solicitation by accountants directly advanced the state's interests of protecting consumers from fraud or overreaching and maintaining the fact and appearance of CPA independence.⁽⁸⁹⁾ Therefore, there was little need for the Court to scrupulously apply the fourth prong of the Central Hudson test. However, the Court held that a restriction was not reasonable in proportion to the interests served (formerly referred to as more extensive than necessary) if it did not serve the substantial interest in a "direct and effective way."⁽⁹⁰⁾

Just two years later in Rubin v. Coors Brewing Co.,⁽⁹¹⁾ the Court returned to its original articulation of the fourth prong of the Central Hudson test: "whether [the restriction] is not more extensive than is necessary to serve [the substantial governmental] interest."⁽⁹²⁾ Rubin involved the Federal Alcohol Administration Act (FAAA), which prohibited disclosure of the alcohol content of beer on labels or in advertising.⁽⁹³⁾ Rather than deferring to the legislature, the Court continued its trend of strengthening the third prong of the Central Hudson test by examining the substantiality of the government's interest and the fit between the restriction and the interest.⁽⁹⁴⁾

The government's interest in Rubin in facilitating state efforts to regulate alcohol under the Twenty-first Amendment was not sufficiently substantial to justify a restriction on commercial speech.⁽⁹⁵⁾ The government, however, had a substantial interest in protecting the health, safety, and welfare of its citizens, which could be adversely affected by an alcohol strength war that might result from advertising the alcohol content of beer.⁽⁹⁶⁾ Nevertheless, the overall irrationality of the government's regulatory scheme prevented the restriction from directly advancing the substantial interest of preventing alcohol strength wars.⁽⁹⁷⁾ The various provisions of the FAAA allowed the disclosure of alcohol content in advertisements, but not on labels; and the provisions even required the disclosure of alcohol content on labels of wines and spirits with more than fourteen percent alcohol.⁽⁹⁸⁾ The Court reasoned that if the government were serious about preventing alcohol strength wars, it would have prohibited the disclosure of alcohol content in the more influential realm of advertising and regulated the disclosure of alcohol content for the stronger beverages as well as the weaker ones.⁽⁹⁹⁾

Furthermore, the Court found that even if the statute did directly advance the government's substantial interest, it was more extensive than necessary to achieve that interest.⁽¹⁰⁰⁾ Abandoning its "in reasonable proportion to the interest" language, the Court noted that the government could have achieved its interest through alternatives, such as directly regulating the alcohol content of beer, that would be less intrusive on First Amendment rights.⁽¹⁰¹⁾ Rubin, therefore, demonstrates that, once again, a restriction is more extensive than necessary to serve the substantial interest of the government, and thus fails to satisfy the fourth prong of the Central Hudson test, if there are alternatives available that are less restrictive of commercial speech.

Finally, in his concurring opinion in Rubin, Justice Stevens proffered what may be some insight into the future of commercial speech doctrine.⁽¹⁰²⁾ Justice Stevens called the Central Hudson test a "misguided approach" because the four-prong test was unrelated to the reasons for allowing more regulation of commercial speech than for other types of speech.⁽¹⁰³⁾ The rationales behind allowing more regulation of commercial speech included: regulation of false or misleading commercial speech "exclude[d] little truthful speech from the market," and it "lack[ed] the value that sometimes inheres in false or misleading political speech."⁽¹⁰⁴⁾ Misleading commercial speech is unlikely to engender the public discourse that may flow from misleading political speech.⁽¹⁰⁵⁾ "[T]he consequences of false commercial speech can be particularly severe . . . ."⁽¹⁰⁶⁾ Finally, there is a likelihood that consumers will respond to false commercial speech, especially if it occurs at the place of sale, before they have time to reflect and minimize the risks of being misled.⁽¹⁰⁷⁾ Rubin, however, involved nothing more than "truthful, unadorned, informative speech."⁽¹⁰⁸⁾ According to Justice Stevens, rather than imposing an artificial distinction between commercial and non-commercial speech, any restriction on the dissemination of accurate information should receive the same strict standard of review as any other content-based restriction on protected speech.⁽¹⁰⁹⁾ Reiterating the Court's distaste for government's paternalistic motives, Justice Stevens declared,

Any "interest" in restricting the flow of accurate information because of the perceived danger of that knowledge is anathema to the First Amendment; more speech and a better-informed citizenry are among the central goals of the Free Speech Clause. Accordingly, the Constitution is most skeptical of supposed state interests that seek to keep people in the dark for what the government believes to be their own good.⁽¹¹⁰⁾

  44 Liquormart, Inc. v. Rhode Island

A.  Facts and Procedure

At the time of the events that prompted this litigation, Rhode Island law prohibited the off-premises advertisement of the prices of alcohol for sale in the state⁽¹¹¹⁾ and imposed a blanket ban on Rhode Island communications media from accepting alcohol price advertisements.⁽¹¹²⁾ A third implementing regulation allowed the Liquor Control Administrator to enforce the ban.⁽¹¹³⁾ Rhode Island defended the ban on alcohol price advertising "as a measure designed to promote temperance by directly reducing the consumption of alcohol by the citizens of Rhode Island."⁽¹¹⁴⁾

In December of 1991, 44 liquormart, a licensed retail alcohol dealer located in Johnston, Rhode Island, placed an advertisement in the Providence Journal Bulletin headed "Thanksgiving Harvest."⁽¹¹⁵⁾ The advertisement displayed bottles of liquors as well as non-alcoholic products.⁽¹¹⁶⁾ Prices of the non-alcoholic products were highlighted in a "burst" form, and at least one non-alcoholic product had the exclamation "WOW" highlighted in "burst" form next to its price.⁽¹¹⁷⁾ Although none of the alcoholic beverages advertised showed any prices, a "WOW" exclamation highlighted in a "burst" form appeared next to the bottles.⁽¹¹⁸⁾ After a hearing, the Rhode Island Liquor Control Administrator concluded that 44 Liquormart violated the state's ban on price advertising of alcohol because the "WOW" exclamations omplied a reference to bargain prices, and the administrator imposed a fine on 44 Liquormart.⁽¹¹⁹⁾

After paying the fine, 44 Liquormart sought a declaratory judgment in the United States District Court for the District of Rhode Island "that the two statutes and the administrator's implementing regulations violate[d] the First Amendment."⁽¹²⁰⁾ 44 Liquormart was joined by Peoples Super Liquor Stores, Inc.⁽¹²¹⁾ Rhode Island Liquor Stores Association was allowed to intervene as a defendant, and the State of Rhode Island eventually replaced Racine, the Liquor Control Administrator, as the principal defendant.⁽¹²²⁾

1.  The Trial

Rhode Island's expert in economics testified that the ban on price advertising promoted temperance "by increasing the `search time' involved in finding the best price on alcoholic beverages, and by keeping the actual price of alcoholic beverages higher than they would be if the price were allowed to be advertised."⁽¹²³⁾ He further testified that "[i]f the price advertising ban were abolished, it would lower average prices and increase consumption."⁽¹²⁴⁾

44 Liquormart's experts conceded that some studies have shown that overall alcohol advertising has a slight effect on alcohol consumption.⁽¹²⁵⁾ 44 Liquormart's experts, however, denied the existence of any empirical evidence showing that alcohol price advertising significantly affected levels of alcohol consumption.⁽¹²⁶⁾ There have been at least twelve different conclusions regarding the correlation between alcohol price advertising and alcohol consumption, some of which have revealed no correlation at all.⁽¹²⁷⁾ Pointing to these varied conclusions and to the many other factors that influence alcohol consumption levels, such as religion, cultural patterns, peer pressure, family make-up, and ethnic background, 44 Liquormart's experts concluded that price advertising had an insignificant effect on alcohol consumption levels.⁽¹²⁸⁾ After its finding of fact that "Rhode island's off-premises liquor price advertising ban has no significant impact on levels of alcohol consumption in Rhode Island,"⁽¹²⁹⁾ the Court proceeded to apply the Central Hudson test.⁽¹³⁰⁾

Prior to the trial, the parties stipulated that the proposed speech was neither false or misleading, nor concerned an illegal activity.⁽¹³¹⁾ The parties also stipulated that Rhode Island had a substantial interest in regulating the sale of alcoholic beverages.⁽¹³²⁾ However, the fit between Rhode Island's alchol price advertising ban and the state's interest in promoting temperance was hotly debated throughout the trial.⁽¹³³⁾ In its argument, Rhode Island contended that, under the Twenty-first Amendment, the state's chosen methods of regulating the sale of alcohol "need only be `reasonably related to,' rather than `directly advance,' its stated ends in order to withstand constitutional scrutiny."⁽¹³⁴⁾ Rhode Island also contended that the Twenty-first Amendment afforded the state's alcohol price advertising ban an added presumption of validity, shifting the burden to 44 Liquormart to show that the ban was unconstitutional beyond a reasonable doubt.⁽¹³⁵⁾ The district court, while agreeing that the Twenty-first Amendment granted states broad authority over interstate commerce of liquor, rejected Rhode island's contention that "the Twenty-first Amendment necessarily [overrode] constitutional guarantees in the Bill of Rights."⁽¹³⁶⁾ In prior United States Supreme Court cases where the Twenty-first Amendment gave an added presumption of validity to state regulations of commercial speech, the Court was concerned with conduct rather than with communication, and "expression was only incidentally burdened."⁽¹³⁷⁾ By contrast, the Rhode Island restriction directly affected expression, so the district court refused to either modify the level of proof or shift the burden of proof to 44 Liquormart, and Rhode Island bore the burden of demonstrating that the state's alcohol price advertising ban directly advanced its interest in promoting temperance and was not more extensive than necessary.⁽¹³⁸⁾

In applying the Central Hudson test, not only did the district court refuse to modify the level of proof or shift the burden of proof from the state, but the court also declined to defer to the Rhode Island legislature's assertion that the regulation directly advanced the state's interest.⁽¹³⁹⁾ Even if Rhode island's burden of proof were "tempered somewhat" by the Twenty-first Amendment, the district court found that the state still had not shown an "immediate connection" between the aclohol price advertising ban and reduced consumption.⁽¹⁴⁰⁾ Consequently, Rhode Island failed to satisfy the "directly advance" prong of the Central Hudson test.⁽¹⁴¹⁾

The district court also found that Rhode Island failed to satisfy the "no more extensive than necessary" prong of the Central Hudson test.⁽¹⁴²⁾ Assuming, arguendo, that alcohol price advertising had an effect on consumption by leading to lower prices, even the state's expert witness agreed with the district court that "unacceptably low [alcohol] price levels [could be controlled by imposing taxes or minimum sales prices]."⁽¹⁴³⁾ While the price advertising ban may covertly achieve Rhode Island's asserted interest by depriving the public of the information needed to make a free choice, measures such as the imposition of taxes or minimum consumer prices would directly serve Rhode Island's interest without burdening commercial speech.⁽¹⁴⁴⁾ Therefore, because the regulation did not directly advance Rhode Island's interest in reducing alcohol consumption and because other less extensive measures that did not burden commercial speech were available to Rhode Island, the district court held that Rhode Island's ban on the off-premises advertising of alcohol prices "impermissibly restrict[ed] commercial speech and [was] unconstitutional."⁽¹⁴⁵⁾

2.  The Appeal

Rhode island appealed the decision of the district court to the First Circuit Court of Appeals, which, after a second rehearing, overturned the district court decision and ruled that Rhode Island's alcohol price advertising ban was constitutional.⁽¹⁴⁶⁾ While the First Circuit agreed with the district court that Rhode Island had the burden of proving its regulation directly advanced the state's interest in reducing alcohol consumption, the First Circuit held that the district court applied too strict a burden.⁽¹⁴⁷⁾ The First Circuit also held that the State had the burden of showing only that the correlation between its restriction and interest was reasonable, not necessarily correct,⁽¹⁴⁸⁾ and that the Twenty-first Amendment gave Rhode Island's alcohol price advertising ban an added presumption of validity.⁽¹⁴⁹⁾ According to the First Circuit, a state would fail to meet its burden of proving reasonableness where the evidence was "`at most, tenuous,'"<sup>(150)</sup> consisted of "`unsupported assertions,'"⁽¹⁵¹⁾ or there was a "lack of studies or 'anecdotal evidence.'"⁽¹⁵²⁾ However, the state would meet its burden by presenting "warrantable inferences" of a correlation between the restriction and the state interest.⁽¹⁵³⁾ In other words, with the added presumption of constitutionality imposed by the Twenty-first Amendment and the warrantable inferences offered by the state, Rhode Island should not have had the burden of persuading the district court that the state's chosen method of promoting temperance directly advanced that interest.⁽¹⁵⁴⁾ The First Circuit also recognized an "inherent merit in the State's contention that competitive price advertising would lower prices, and that with lower prices there would be more sales."⁽¹⁵⁵⁾ "Advertising must be generally productive," the First Circuit said, "or so much money would not be spent on it."⁽¹⁵⁶⁾ Therefore, since there was no affirmative contradiction of reasonableness on whch to rely, the district court was not free to hold Rhode Island's alcohol price advertising ban unreasonable.⁽¹⁵⁷⁾

The First Circuit also subjected the "not more extensive than necessary" inquiry to the same standard of reasonableness.⁽¹⁵⁸⁾ Despite the availability of alternatives that do not burden commercial speech, a state is entitled to a reasonable choice of method.⁽¹⁵⁹⁾ Rhode Island, therefore, was entitled to its reasonable choice of imposing a ban on alcohol price advertising without proving that other methods, such as taxation or direct regulation of alcohol pricing, would be less effective.⁽¹⁶⁰⁾ Consequently, the First Circuit held that Rhode Island had satisfied all four prongs of the Central Hudson test, and the state's restriction on alcohol price advertising was constitutional.⁽¹⁶¹⁾

  The Supreme Court Decision

The United States Supreme Court unanimously reversed the judgment of the First Circuit and declared Rhode Island's ban on alcohol price advertising unconstitutional.⁽¹⁶²⁾ The reasoning behind the Court's holding, however, was anything but unanimous. With the exception of the judgment and the application of the Twenty-first Amendment to the issue, not more than four justices agreed on the proper test to which commercial speech regulations were subject.⁽¹⁶³⁾ In sorting out the differing opinions, it is helpful to begin with that part of the opinion that the Court agreed upon--the analysis of the Twenty-first Amendment as it applied to this issue.

A.  The Twenty-first Amendment

The Twenty-first Amendment repealed prohibition and granted the states the power to regulate the transportation or importation of alcohol.⁽¹⁶⁴⁾ The states, therefore, have broad regulatory power over the commerce of alcohol, "unfettered by the Commerce Clause."⁽¹⁶⁵⁾ As mentioned previously, Rhode Island asserted, and the First Circuit agreed, that this "unfettered" regulatory power granted by the Twenty-first Amendment gave Rhode Island's ban on alcohol price advertising an added presumption of validity under the First Amendment.⁽¹⁶⁶⁾ The Supreme Court acknowledged that the Twenty-first Amendment limited the effect of the Dormant Commerce Clause on a state's power to regulate the transportation, importation, or possession of alcohol.⁽¹⁶⁷⁾ The Court, however, held that "the [Twenty-first] Amendment does not license the States to ignore their obligations under other provisions of the Constitution."⁽¹⁶⁸⁾ In previous decisions, the Court held that the Twenty-first Amendment did not diminish the force of the Supremacy Clause,⁽¹⁶⁹⁾ the Establishment Clause,⁽¹⁷⁰⁾ or the Equal Protection Clause.⁽¹⁷¹⁾ In the present case, the Court specifically added the Free Speech Clause to the above list and held that the "Twenty-first Amendment does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment."⁽¹⁷²⁾ With any possible Twenty-first Amendment considerations dispelled, the Court was free to analyze this case as it would any other case regarding commercial speech.

B.  Justice Stevens' Opinion

Justice Stevens announced the judgment of the Court⁽¹⁷³⁾ and delivered the opinion of the Court with respect to the Twenty-first Amendment issue and the facts and procedure of the case.⁽¹⁷⁴⁾ He was unable, however, to garner support from more than three Justices in any other parts of his opinion.⁽¹⁷⁵⁾ Justice Stevens, joined by Justices Kennedy, Souter and Ginsburg, began with a brief history of commercial speech and the development of the law protecting commercial speech.⁽¹⁷⁶⁾

Throughout American history, the public has relied on commrecial speech for "vital information about the market."⁽¹⁷⁷⁾ As Justice Stevens pointed out, however, and as Part II of this Comment demonstrates, truthful and non-misleading commercial speech about lawful products and services did not receive First Amendment protection until the 1970s.⁽¹⁷⁸⁾ While recognizing that commercial speech was entitled to First Amendment protection, Justice Stevens conceded that the state could regulate commercial speech more freely than other forms of protected speech.⁽¹⁷⁹⁾ The state's regulatory authority, however, is lessened "when its commercial speech restrictions strike at `the substance of the information communicated' rather than the `commercial aspect of [it].'"⁽¹⁸⁰⁾ Finally, in this portion of his opinion, Justice Stevens noted that the Central Hudson test further limited the State's regulatory authority over free speech.⁽¹⁸¹⁾

Next, joined by Justices Kennedy and Ginsburg, Justice Stevens explained that content-based commercial speech restrictions were subject to a stricter level of review than were content-neutral restrictions.⁽¹⁸²⁾ Justice Stevens reasoned that the purpose for affording First Amendment protection to commercial speech was to allow the disclosure of beneficial consumer information.⁽¹⁸³⁾ Since the purpose behind restricting misleading, deceptive, or aggressive sales practices is consistent with that of affording First Amendment protection to commercial speech, such restrictions are subject to less than strict review.⁽¹⁸⁴⁾ But when a restriction completely bans the dissemination of truthful, non-misleading commercial messages, there is little reason to subject that restriction to a level of review less than that which the First Amendment generally demands.⁽¹⁸⁵⁾

Justice Stevens further explained the reasons for subjecting complete speech bans to the same level of review afforded other protected forms of speech.⁽¹⁸⁶⁾ Unlike time, place, or manner restrictions, complete speech bans "are particularly dangerous because they all but foreclose alternative means of disseminating certain information."⁽¹⁸⁷⁾ "Regulations that suppresss the truth are no less troubling because they target objectively verifiable information."⁽¹⁸⁸⁾ The primary reason for allowing greater governmental regulation of commercial than for non-commercial speech is that the State has an interest in "protecting consumers from `commercial harms.'"<sup>(189)</sup> Yet, rather than protect consumers from commercial harms, restrictions that target truthful, non-misleading commercial speech "often serve only to obscure an `underlying governmental policy' that could be implemented without regulating speech."⁽¹⁹⁰⁾ In concealing the underlying policy, complete commercial speech bans not only stem the flow of information to the consumer, but also stifle debate over public policy issues.⁽¹⁹¹⁾ Furthermore, bans on truthful, non-misleading commercial speech usually rest on the paternalistic and "offensive assumption" that the public will use the information unwisely.⁽¹⁹²⁾ According to Justice Stevens, "[t]he 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."⁽¹⁹³⁾

With the declaration that Rhode Island's alcohol price advertising ban was a "blanket prohibition against truthful, nonmisleading speech about a lawful product . . . [and] . . . serve[d] an end unrelated to consumer protection,"⁽¹⁹⁴⁾ Justice Stevens, again joined by Justices Kennedy, Souter, and Ginsburg, went on to apply the Central Hudson test.⁽¹⁹⁵⁾ That Justice Stevens wrote an opinion strictly adhering to the Central Hudson test is somewhat surprising because Justice Stevens, in his concurring opinion in Rubin, called the Central Hudson test a "misguided approach."⁽¹⁹⁶⁾ In Rubin, Justice Stevens concluded that any restriction on the dissemination of accurate information, commercial or otherwise, should receive the same strict standard of review as any other content-based restriction on protected speech.⁽¹⁹⁷⁾ Although Justice Stevens declined to push for his earlier proposed abandonment of the Central Hudson test in favor of strict scrutiny, he applied the test with "special care."⁽¹⁹⁸⁾

The parties had stipulated in the lower courts' proceedings that the first two prongs of the Central Hudson test (that the commercial speech at issue was truthful and concerned a legal activity and that Rhode Island's interest in promoting temperance was substantial) had been satisfied.⁽¹⁹⁹⁾ Therefore, only the third and fourth prongs of the Central Hudson test (whether the restriction directly advanced Rhode Island's interest and whether the restriction was no more extensive than necessary) were at issue.⁽²⁰⁰⁾

Under Justice Stevens' "special care" standard, the third prong of the Central Hudson test imposes on the State the burden of showing that the ban will advance the State's interest in a material way, and not merely provide "ineffective or remote support for the State's purpose."⁽²⁰¹⁾ Because Rhode Island's chosen method for achieving its interest consisted of a blanket ban on truthful, non-misleading information, Justice Stevens believed the third prong of the Central Hudson test would be satisfied only if "the State has shown that the price advertising ban will significantly reduce alcohol consumption."⁽²⁰²⁾

Justice Stevens agreed with the State and the First Circuit that a ban on price advertising would tend to maintain prices at a higher level than a completely free market would otherwise support.⁽²⁰³⁾ He even agreed that it was reasonable to assume that higher prices would tend to lower demand, and hence lower consumption.⁽²⁰⁴⁾ Rhode Island, however, presented no evidence suggesting that the ban would significantly reduce market-wide consumption, thereby significantly advancing the State's interest in promoting temperance.⁽²⁰⁵⁾ Citing the district court's findings of fact, Justice Stevens noted that the evidence actually supported the conclusion that the ban would not significantly affect market-wide consumption of alcohol.⁽²⁰⁶⁾ Rhode Island did not identify either the price level at which alcohol consumption would be significantly reduced or the amount to which prices would decrease without the ban.⁽²⁰⁷⁾ Without a showing by the State on these points, the conclusion that the price advertising ban significantly affects the level of alcohol consumption requires too much speculation.⁽²⁰⁸⁾ Especially when the ban restricts accurate information to serve the State's "paternalistic ends," Rhode Island cannot rely on "`speculation and conjecture'" to demonstrate that its restriction directly advances the State's interest.⁽²⁰⁹⁾ Rhode Island, therefore, did not satisfy the third prong of the Central Hudson test.⁽²¹⁰⁾

Justice Stevens also held that Rhode Island's ban on alcohol price advertising was more extensive than necessary.⁽²¹¹⁾ Alternative forms of regulation that were less intrusive to commercial speech were not only available, but were more likely to be effective.⁽²¹²⁾ Again citing the district court proceedings, Justice Stevens noted that the State's own experts concluded that higher alcohol prices could be maintained through direct regulation, such as increased taxation, imposing a limit on per capita purchases of alcohol, or even educational campaigns addressing the dangers of alcohol consumption.⁽²¹³⁾ Justice Stevens concluded that even if a less than strict standard were applied, there would still be no reasonable fit between Rhode Island's alcohol price advertising ban and the State's interest in promoting temperance.⁽²¹⁴⁾ The availability of less intrusive alternatives is even more conclusive of a restriction that is more extensive than necessary when, as in this case, the restriction completely suppresses truthful, non-misleading commercial speech.⁽²¹⁵⁾ In such cases, Central Hudson, itself, requires a more "stringent" review.⁽²¹⁶⁾ Consequently, Justice Stevens held that Rhode Island's ban on alcohol price advertising failed to satisfy the fourth prong of the Central Hudson test.⁽²¹⁷⁾

Justice Stevens, joined by Justices Kennedy, Thomas, and Ginsburg, then addressed the specific arguments asserted by Rhode Island.⁽²¹⁸⁾ First, Rhode Island argued that, according to the Central Hudson analysis as it was applied in Posadas and Edge Broadcasting the imposition of the alcohol price advertising ban was an appropriate exercise of the State's legislative judgment.⁽²¹⁹⁾ Rhode Island contended that becasue evidence as to the effectiveness of the price advertising ban could "go both ways," the ban was a reasonable choice by Rhode Island's legislature.⁽²²⁰⁾

Justice Stevens responded first by differentiating the present case from Edge.⁽²²¹⁾ While Edge concerned restrictions on advertising an activity (lotteries) that was illegal in the jurisdiction, Rhode Island's ban targeted commercial speech about lawful behavior.⁽²²²⁾ On the other hand, Justice Stevens conceded that Posadas, by allowing the Puerto Rico legislature to suppress the advertising of casinos rather than engage in counter-speech, supported Rhode Island's argument.⁽²²³⁾ But given the Court's hostility toward commercial speech regulation, particularly blanket bans that obscured the State's paternalistic motives, Justice Stevens declined to give force to the deferential approach of Posadas.⁽²²⁴⁾ Instead, Justice Stevens held that despite the deferential approach embraced by Posadas, "a state legislature does not have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes."⁽²²⁵⁾

The State next argued that Posadas also supported the proposition that Rhode Island's greater power to ban the sale of alcohol outright included the lesser power to ban advertising of alcohol and alcohol prices.⁽²²⁶⁾ While Justice Stevens generally agreed that greater powers include lesser ones, he rejected the Posadas assumption that "the State's power to regulate commercial activity is greater than its power to ban truthful, nonmisleading commercial speech."⁽²²⁷⁾ "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."⁽²²⁸⁾ The government, therefore, "may not suppress speech as easily as it may suppress conduct."⁽²²⁹⁾ Further, the government may not use speech restrictions as simply another means to achieve its ends.⁽²³⁰⁾ The very application of the Central Hudson test indicates that these First Amendment principles apply to commercial speech as well as other types of protected speech.⁽²³¹⁾ Therefore, Justice Stevens, and possibly the entire Court, held that the "greater-includes-the-lesser" argument in Posadas is no longer persuasive.⁽²³²⁾

Rhode Island's final argument was that its alcohol price advertising ban should be upheld because it regulated commercial speech that pertained to a "vice" activity.⁽²³³⁾ Justice Stevens rejected this argument mainly because the scope of a "vice" exception to otherwise protected commercial speech would be nearly impossible to define.⁽²³⁴⁾ First, the exception would envelop "almost any product that poses some threat to public health or public morals," even though the "vice" activity to which the product is related may be lawful.⁽²³⁵⁾ Second, a "vice" exception would allow the State to "justify censorship by the simple expedient of placing the `vice' label on selected lawful activities."⁽²³⁶⁾ Therefore, Justice Stevens held that unless a restriction on commercial speech related to a vice is accompanied by the corresponding commercial activity, a supposed "vice" exception will not justify the regulation of commercial speech about that activity.⁽²³⁷⁾

To sum up Justice Stevens' opinion, Rhode Island's ban on alcohol price advertising was a blanket content-based restriction on commercial speech that served mainly, if not only, to conceal a State policy that could have been implemented without regulating speech.⁽²³⁸⁾ As such, the Central Hudson test had to be applied, and the restriction had to be reviewed, with "special care."⁽²³⁹⁾ The restriction did not survive the third prong of the Central Hudson test because Rhode Island failed to demonstrate that the alcohol price advertising ban significantly reduced alcohol consumption and, therefore, did not directly advance the State's substantial interest.⁽²⁴⁰⁾ The restriction did not survive the fourth prong of the Central Hudson test because less intrusive, and probably more effective, alternatives were available to Rhode Island.⁽²⁴¹⁾ Finally, Justice Stevens rejected Rhode Island's justification for the ban as either an appropriate use of legislative discretion, a demonstration of legislative restraint in not banning alcohol sales outright, or as appropriate regulation of a "vice" activity.⁽²⁴²⁾

C.  Justice O'Connor's Opinion

While Justice O'Connor, joined by the Chief Justice and Justices Souter and Breyer, concurred in the judgment of the Court, she would have resolved this case more narrowly than did Justice Stevens.⁽²⁴³⁾ Justice O'Connor did not declare that Rhode island's ban on alcohol price advertising satisfied the third prong of the Central Hudson test by directly advancing the state's substantial interest.⁽²⁴⁴⁾ But according to Justice O'Connor, even if the third prong were satisfied, Rhode Island's regulation failed to satisfy the fourth prong because the ban was "more extensive than necessary to serve the State' interest."⁽²⁴⁵⁾ Unlike Justice Stevens, who applied a more stringent standard, Justice O'Connor believed that a regulation was not more extensive than necessary, and therefore satisfied the fourth prong of the Central Hudson test, if there is 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.'"⁽²⁴⁶⁾ The regulation the state chooses to serve its interest must be "narrowly tailored," although it need not be the least restrictive means available.⁽²⁴⁷⁾ "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."⁽²⁴⁸⁾ The "costs and benefits associated with the burden on speech imposed by [the regulation must have been carefully calculated by the State, as indicated by the restriction itself]." ⁽²⁴⁹⁾A regulation on commercial speech is likely to be more extensive than necessary if the State could serve its interest through available alternatives that are less burdensome on commercial speech.⁽²⁵⁰⁾ Finally, "[i]f alternative channels permit communication of the restricted speech, the regulation is more likely to be considered reasonable."⁽²⁵¹⁾

Applying the above considerations to the present case, Justice O'Connor found that the fit between Rhode Island's alcohol price advertising ban and the State's interest in promoting temperance was not reasonable. Rhode Island's regulation, therefore, did not survive the fourth prong of the Central Hudson test.⁽²⁵²⁾ The most important factor in Justice O'Connor's determination appeared to be the less intrusive alternatives available to Rhode Island to discourage alcohol consumption.⁽²⁵³⁾ Rhode Island could have achieved its objective of lowering alcohol consumption by maintaining high prices without imposing any restriction on commercial speech.⁽²⁵⁴⁾ Indeed, establishing minimum alcohol prices or imposing a tax on alcohol would affect alcohol prices more directly and effectively than would the price advertising ban.⁽²⁵⁵⁾ While the availability of less intrusive alternatives was the primary indication that Rhode Island's regulation was more extensive than necessary, Justice O'Connor also considered the availability of alternate channels of communication.⁽²⁵⁶⁾ Because Rhode Island's regulation prevented sellers from advertising the prices of alcohol anywhere but at the point of purchase, no alternate channels existed through which the sellers could advertise their prices.⁽²⁵⁷⁾ Accordingly, the fit between Rhode Island's alcohol price advertising ban and the State's interest in promoting temperance was not reasonable and, thus, Rhode Island's ban did not survive the fourth prong of the Central Hudson test.⁽²⁵⁸⁾

Justice O'Connor agreed with the principle opinion in rejecting Rhode Island's "deference to the legislature" and Twenty-first Amendment arguments.⁽²⁵⁹⁾ Justice O'Connor even agreed with Justice Stevens' principle opinion in as much as Rhode Island's ban failed to survive the Central Hudson test.⁽²⁶⁰⁾ Justice O'Connor, however, did not agree with Justice Stevens' more stringent application of the Central Hudson test.⁽²⁶¹⁾ According to Justice O'Connor, the fourth prong of the Central Hudson test required only a reasonable fit between the State's goal and its method, and a reasonable fit did not exist in this case.⁽²⁶²⁾ Because there was no need to go further, Justice O'Connor declined to adopt a more stringent analysis of the Central Hudson test in evaluating Rhode Island's commercial speech regulation.⁽²⁶³⁾ Consequently, while concurring in the judgment invalidating Rhode Island's ban on alcohol price advertising, Justice O'Connor, joined by three other justices, decided the issue on narrower grounds than those upon which Justice Stevens based his opinion.⁽²⁶⁴⁾

D.  Justice Thomas' Opinion

Since Central Hudson was decided in 1980, individual Justices have questioned the applicability of the Central Hudson test to commercial speech restrictions.⁽²⁶⁵⁾ Despite Justice Stevens' skepticism of the Central Hudson test in Rubin, Justice Thomas, not Justice Stevens, called for the abandonment of the test in the present case in favor of adherence to the doctrine adopted in Virginia Board of Pharmacy.⁽²⁶⁶⁾ Justice Thomas demonstrated the historic distaste the Court and individual Justices have displayed toward paternalistic commercial speech restrictions, through which states have sought to manipulate consumer choices, by pointing to Virgina Board of Pharmacy and many cases since.⁽²⁶⁷⁾ Therefore, rather than apply the Central Hudson test to cases in which the government has sought to manipulate consumer choice by restricting the flow of information to legal users of a product or service, Justice Thomas would have declared the government's interest "per se illegitimate."⁽²⁶⁸⁾ The Court, through its prior decisions, and presumably through its application of the Central Hudson test, has assigned a lesser value to commercial speech than to other types of protected speech.⁽²⁶⁹⁾ Yet Justice Thomas found unconvincing the reasons for treating commercial speech differently than non-commercial speech, at least when the purpose of the commercial speech restriction is to manipulate consumer choice by keeping information from the consumer.⁽²⁷⁰⁾

Application of the third prong of the Central Hudson test was especially bewildering to Justice Thomas.⁽²⁷¹⁾ Justice Stevens held that Rhode Island's alcohol price advertising ban did not directly advance the State's interest, and failed the third prong of the Central Hudson test, becasue Rhode Island did not show that the ban significantly reduced alcohol consumption.⁽²⁷²⁾ "[This] 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[, a proposition that] contradicts Virginia Pharmacy Bd.'s rational for protecting `commercial' speech in the first instance."⁽²⁷³⁾

Justice Thomas also believed that Justice Stevens' and, to a lesser extent, Justice O'Connor's interpretations of the fourth prong of the Central Hudson test coincided, as a practical matter, with his own position.⁽²⁷⁴⁾ The opinions of Justice O'Connor and, especially, Justice Stevens appeared to suggest that the Court will invalidate a commercial speech restriction whenever the State can as effectively reduce demand by legal users of the product or service through direct regulation.⁽²⁷⁵⁾ Banning a product or restricting its sale would almost always be at least as effective in dampening demand for the product as restricting advertising concerning the product would be.⁽²⁷⁶⁾ Consequently, virtually all commercial speech restrictions that seek to affect demand for a product by keeping would-be purchasers in the dark would fail the fourth prong of the Central Hudson test.⁽²⁷⁷⁾ In other words, application of the fourth prong of the Central Hudson test to a commercial speech restriction where the government could directly restrict the commercial conduct will produce the same result as if the government's interest were per se illegitimate.⁽²⁷⁸⁾ Thus, rather than apply the Central Hudson test, particularly the fourth prong, "to reach the inevitable result that all or most such advertising restrictions must be struck down," Justice Thomas would have declared impermissible not just Rhode Island's alcohol price advertising ban, but "all [State] attempts to dissuade legal choices by citizens by keeping them ignorant."⁽²⁷⁹⁾

E.  Justice Scalia's Opinion

Justice Scalia concurred in the judgment of the Court and in Justice Stevens' treatment of the application of the Twenty-first Amendment.⁽²⁸⁰⁾ While he "share[d] Justice Thomas's discomfort with the Central Hudson test," Justice Scalia did not join in Justice Thomas' opinion because he believed the opinion had nothing more than "policy intuition to support it."⁽²⁸¹⁾ Justice Scalia also shared Justice Stevens' "aversion" toward paternalistically motivated speech restrictions.⁽²⁸²⁾ Justice Scalia, however, declined to join Justice Stevens' opinion because, in his view, it would be just as paternalistic for the Court to strike down laws it considered paternalistic without good reaon to believe that the Constitution itself forbids the laws.⁽²⁸³⁾

The "indeterminate" text of the First Amendment makes it difficult to determine what the Constitution forbids with regard to commercial speech regulations.⁽²⁸⁴⁾ Therefore, when a speech restriction is not aimed at the expression of political ideas, Justice Scalia would allow the "long accepted practices of the American people" to guide his determination as to what the Constitution forbids.⁽²⁸⁵⁾

The American Advertising Federation submitted an amicus brief which examined various viewpoints at the time the First Amendment was adopted.⁽²⁸⁶⁾ Although these viewpoints were "consistent with First Amendment protection for commercial speech," Justice Scalia did not find the viewpoints compelling.⁽²⁸⁷⁾ Justice Scalia would have found more compelling evidence of "state legislative practices[] at the time the First Amendment was adopted."⁽²⁸⁸⁾ Because Justice Scalia thought it "most improbable [that the Fourteenth Amendment was intended] to overturn any existing national consensus regarding free speech," state legislative practices at the time the Fourteenth Amendment was adopted would be even more compelling.⁽²⁸⁹⁾ Unfortunately, however, since both parties accepted Central Hudson, neither the parties nor their amici provided evidence from which Justice Scalia would have determined the "long accepted practices of the American people."⁽²⁹⁰⁾

With no evidence to support a declaration that Central Hudson is wrong or to suggest a suitable replacement for the Central Hudson test, Justice Scalia was not inclined to develop new law.⁽²⁹¹⁾ Nor, because of his misgivings for the Central Hudson test, was Justice Scalia inclined to support the Central Hudson test.⁽²⁹²⁾ Rather, he resolved the case "in accord with [the Court's] existing jurisprudence."⁽²⁹³⁾ According to Justice Scalia, and all other Justices except Justice Thomas, the Court's existing jurisprudence, the Central Hudson test, prohibited Rhode Island's ban on alcohol price advertising.⁽²⁹⁴⁾

  What Does it All Mean?

While the Central Hudson test is undoubtedly still in effect for now, the Court's shift toward strengthening protection for commercial speech is demonstrated throughout the 44 Liquormart opinion.⁽²⁹⁵⁾ The Court, with the possible exception of Justices Scalia and Thomas, nullified the deferential treatment previously afforded to legislatures in determining the method best suited to achieve the legislatures' ends.⁽²⁹⁶⁾ At least seven Justices now agree that a State must demonstrate that a commercial speech restriction directly advances a substantial State interest for the regulation to survive the third prong of the Central Hudson test.⁽²⁹⁷⁾

The fourth (no more extensive than necessary) prong of the Central Hudson test had, in the past, required a reasonable, but not necessarily perfect, fit between the State's chosen method and the State's interest.⁽²⁹⁸⁾ Justice Stevens, however, would apply a more stringent standard to paternalistically motivated commercial speech restrictions.⁽²⁹⁹⁾ Just how stringent Justice Stevens' standard would be is unclear, but the existence of any alternate regulation less intrusive on commercial speech would appear to render the commercial speech restriction more extensive than necessary.⁽³⁰⁰⁾ Justice O'Connor declined to depart from the "reasonable fit" standard.⁽³⁰¹⁾ Nevertheless, the availability of more effective, less intrusive alternatives and the existence of alternate channels for the commercial speech at issue were the main factors preventing a "reasonable fit."⁽³⁰²⁾ Further, Justice O'Connor declined to depart from the "reasonable fit" standard because there was no need to; the Rhode Island ban had already failed the "reasonable fit" standard.⁽³⁰³⁾ And as Justice Thomas pointed out, under either Justice Stevens' or Justice O'Connor's interpretation of the fourth prong of the Central Hudson test, the result will virtually always be the same as if the Central Hudson test were abandoned and the State's paternalistically motivated interest were declared "per se illegitimate."⁽³⁰⁴⁾ While Justice Thomas was the sole advocate for abandoning the Central Hudson test in 44 Liquormart, Justice Scalia shared Justice Thomas' "discomfort" with the test.⁽³⁰⁵⁾ Moreover, Justice Stevens seemed to be advocating the abandonment of the Central Hudson test a year earlier in Rubin.⁽³⁰⁶⁾

A proposed commercial speech restriction similar to Rhode Island's restriction in 44 Liquormart that may be working its way toward the Courts concerns the advertisement of liquor on television and radio.⁽³⁰⁷⁾ The Distilled Spirits Council of the United States imposed a voluntary ban on radio advertising of distilled spirits in 1936 and a ban on television advertising of distilled spirits in 1948.⁽³⁰⁸⁾ In June of 1996, Jos. E. Seagram & Sons, Inc. broke the tradition by airing a month-long series of thirty-second commercials for its Crown Royal Canadian whiskey on an NBC affiliate in Texas.⁽³⁰⁹⁾ Subsequently, the Distilled Spirits Council abandoned its self-imposed ban on radio and television advertising.⁽³¹⁰⁾ In what appears to be an immediate response to Seagram's television advertisements, Representative Joseph P. Kennedy II introduced legislation, labeled the "Just Say No Act," that would ban the advertisement of distilled spirits on radio and television.⁽³¹¹⁾

Applying the Central Hudson test in the spirit of 44 Liquormart, the Just Say No Act, if it is eventually enacted, should be declared unconstitutional. It is safe to assume that the Government and the party challenging the Act will stipulate that the advertising in question concerns a legal product and is not misleading. The first prong of the Central Hudson test, therefore, would be satisfied, and the commercial speech would be entitled to consitutional protection.⁽³¹²⁾ The parties, however, will likely contest the remaining three prongs of the Central Hudson test: whether the Government's interest is substantial; whether the restriction directly advances the Government's interest; and whether the restriction is more extensive than necessary to achieve the Government's interest.⁽³¹³⁾

The second prong of the Central Hudson test requires the Government's interest sought to be achieved by the restriction to be substantial.⁽³¹⁴⁾ The text of the Just Say No Act provides the advertising prohibition and the penalty for violating the prohibition.⁽³¹⁵⁾ The text of the Act does not give any indication as to the Government's purpose in restricting hard liquor advertising on radio and television.⁽³¹⁶⁾ Based on the content of a similar Bill proposed by Representative Kennedy just one month before he proposed the Just Say No Act, however, the Government's purported interest in banning advertisements for hard alcohol from television and radio undoubtedly is the protection of children.⁽³¹⁷⁾ The Children's Protection from Alcohol Advertising Act of 1996 contains findings illustrating the dangers of alcohol on children and the effect of alcohol advertising on children.⁽³¹⁸⁾ For the purposes of this discussion, the findings contained in the Children's Protection from Alcohol Advertising Act of 1996 will be considered applicable to the Just Say No Act.

The protection of children is, of course, a substantial, even compelling, governmental interest, and the Supreme Court has consistently rejected challenges to speech restrictions that were imposed for the protection of children.⁽³¹⁹⁾ Consequently, if the protection of children is the true goal of the Just Say No Act, the second prong of the Central Hudson test will be satisfied. The opponent of the Just Say No Act, however, should challenge whether the protection of children is at the heart of the Act. Presumably all Justices are unwilling to defer to the legislature, at least when analyzing the third and fourth prongs of the Central Hudson test.⁽³²⁰⁾ The substantiality of the Government's interest in 44 Liquormart was not at issue, so there was no deference requested or given to the legislature's judgment regarding the second prong of the Central Hudson test.⁽³²¹⁾ However, if the Court no longer defers to the legislature's unsupported assertions for the third and fourth prongs of the Central Hudson test, it stands to reason that the Court would not necessarily defer to the legislature's bald assertion that its only interest in restricting speech is to protect children.

Justice Stevens, in his plurality opinion in 44 Liquormart, rejected Rhode Island's plea for a "vice" exception primarily because almost anything could be characterized as a "vice," and recognition of a "vice" exception would allow the Government to "justify censorship by the simple expedient of placing the `vice' label on selected lawful activities."⁽³²²⁾ Similarly, if the Court does not scrutinize the Government's asserted interest, the Government could justify censorship merely by claiming its commercial speech restriction is for the purpose of protecting children. Given the Court's unwillingness to defer to legislative assertions and the convenience of declaring child protection the governmental purpose behind commercial speech restrictions in order to justify censorship, at least some inquiry should be made into the asserted governmental purpose.

Despite the Court's unwillingness to defer to the legislature regarding the third and fourth prongs of the Central Hudson test, the Court, in reviewing the Just Say No Act, will probably give at least some amount of deference to the Government regarding the second prong of the Central Hudson test. The alternative would be to label the Just Say No Act a piece of feel-good legislation, the purpose of which is to achieve the self-serving ends of reelection-minded legislators at the expense of the First Amendment. Even somewhat pessimistic citizens would not want to admit that our Nation's elected officials would manipulate the fears and concerns of the American people for their own selfish interests. Therefore, the Just Say No Act will probably satisfy the second prong of the Central Hudson test.⁽³²³⁾

To pass the third prong of the Central Hudson test, the Just Say No Act must directly advance the Government's interest.⁽³²⁴⁾ Presumably, the Government must demonstrate that the ban on hard alcohol advertisements on radio and television will significantly reduce underage drinking.⁽³²⁵⁾ Thus far, the Government has yet to demonstrate that its proposed ban will directly advance the governmental purpose of decreasing underage drinking. The only two pertinent findings are: (1) A study published in the American Journal of Public Health concluding that "viewing beer ads on television may predispose young people to drinking beer. Children who are more aware of beer advertisements hold more favorable beliefs about drinking beer and intend to drink beer more frequently as adults."⁽³²⁶⁾ (2) "Almost half of all adults think that alcohol industry advertising greatly influences underage youth to drink alcoholic beverages . . . ."⁽³²⁷⁾

Neither finding demonstrates that banning hard alcohol advertisements on television and radio will significantly reduce underage drinking. The first finding merely concluded that alcohol advertisements on television may predispose young people to drink, and that those exposed to alcohol advertising may be more likely to drink as adults.⁽³²⁸⁾ According to the first finding, therefore, rather than significantly reducing underage drinking, a ban on alcohol advertising on television would only reduce the alcohol consumption of adults who would have otherwise been exposed to alcohol advertiesments on television when they were under the legal drinking age.⁽³²⁹⁾

The second finding is equally unpersuasive. The finding is nothing more than a bald assertion that less than half of all adults have what amounts to a gut feeling that alcohol advertising influences young people to drink.⁽³³⁰⁾ However strongly held this belief may be, the finding is far from concrete evidence that banning hard alcohol advertisements on television will significantly reduce underage drinking. Just as Rhode Island engaged in speculation as to the effect its alcohol price advertising ban would have on consumption, the "Just Say No Act" engages in the same type of speculation as to the effect a hard alcohol advertising ban will have on underage drinking.⁽³³¹⁾

In contrast to the Government's findings, there is much more persuasive evidence that banning hard alcohol advertising on radio and television will have little or no effect on underage frinking. As Seagram pointed out, "[a]lcohol is alcohol whether it's in beer, wine or distilled spirits."⁽³³²⁾ Although supporting tighter restrictions on alcohol advertising, even a spokesman from the National Council on Alcoholism and Drug Dependence agreed that "`[y]ou . . . [can] get as drunk on beer and wine as you can' on vodka, gin, bourbon or others."⁽³³³⁾ With beer and wine producing the same evils as hard alcohol, the government's purpose behind the "Just Say No Act" must be to decrease underage drinking of all alcohol, not just hard alcohol. Yet, the "Just Say No Act" leaves beer and wine producers free to continue advertising on radio and television,⁽³³⁴⁾ making compelling the argument that restricting only hard alcohol advertising will not significantly reduce underage drinking.

Furthermore, young people are exposed to hard alcohol advetising as much outside their living rooms as they would be in front of the television. In addition to the plethora of billboards displaying hard alcohol advertisements, several magazines prominently display full-page hard alcohol advertisements on their back covers.⁽³³⁵⁾ With other forms of alcohol advetising so prominent and unavoidable, it is hard to fathom how banning hard alsohol advertisements on radio and television will significantly reduce underage drinking. Therefore, unless the alternate advertising channels are closed as well, the Just Say No Act will not directly advance the Government's interest and, accordingly, it will not satisfy the third prong of the Central Hudson test.⁽³³⁶⁾

The Just Say No Act also fails the fourth prong of the Central Hudson test becasue the advertising ban is more extensive than necessary.⁽³³⁷⁾ The advertising ban is more extensive than necessary because the Government can achieve its purpose through less intrusive alternatives.⁽³³⁸⁾ Enforcing existing laws that set forth minimum age requirements for purchasing alcohol would directly reduce underage drinking without burdening commercial speech at all.⁽³³⁹⁾ Justice Stevens' sole purpose for declaring that Rhode Island's alcohol price advertising ban had failed the fourth prong of the Central Hudson test was that Rhode Island could have achieved its purpose through direct regulation that did not burden commercial speech.⁽³⁴⁰⁾ The less intrusive alternative of direct regulation was also a major factor in Justice O'Connor's holding in 44 Liquormart that the fit between Rhode Island's interest and its alcohol price advertising ban was not reasonable and, therefore, the ban was more extensive than necessary.⁽³⁴¹⁾ Therefore, because the Government can achieve its purpose at least as effectively without burdening commercial speech, the "Just Say No Act" is more extensive than necessary, and it fails the fourth prong of the Central Hudson test.⁽³⁴²⁾

One major consideration that has not been elaborated upon is the effect the Government's interest in protecting children will have on the application of the Central Hudson test to the Just Say No Act. The full implication of the Government's interest in protecting children is far too broad for an in depth analysis here. For now, it is enough to note that a challenge to any speech restriction imposed to protect children is at a distinct disadvantage,⁽³⁴³⁾ which is why an inquiry into the true purpose of a speech restriction is justified.

First, the protection of children is more than just a substantial interest; it is a compelling interest.⁽³⁴⁴⁾ Further, in upholding sanctions imposed on a radio station for airing George Carlin's "Filthy Words" monologue, the Court recognized that the Government's interest in protecting children justified the regulation of otherwise protected speech.⁽³⁴⁵⁾ Second, the radio broadcast in FCC v. Pacifica Foundation⁽³⁴⁶⁾ received "special treatment," in large part, because children often have unsupervised access to radios.⁽³⁴⁷⁾ Likewise, the Just Say No Act may warrant "special treatment" because children have as much unsupervised access to televisions. These considerations, while pertinent to a challenge to the Just Say No Act, are not necessarily fatal to such a challenge.

In Denver Area Education Telecommunications Consortium v. FCC,⁽³⁴⁸⁾ which the Court heard just prior to hearing 44 Liquormart, the Court dealt with cable television broadcasts that could possibly reach children.⁽³⁴⁹⁾ In Denver, in order to protect children from exposure to offensive broadcasts, three provisions of the Cable Television Consumer Protection and Competition Act of 1992⁽³⁵⁰⁾ restricted the broadcast of "patently offensive" programming.⁽³⁵¹⁾ Because the intent of the immediate discussion is only to demonstrate the possibility of successfully challenging a speech restriction imposed to protect children, a detailed review of Denver is unwarranted. It is important to note, however, that after subjecting the provisions in Denver to strict scrutiny, the Court held that two of the three provisions violated the First Amendment because they were not sufficiently tailored to achieve the governmental objective of protecting children from exposure to "patently offensive" material.⁽³⁵²⁾ In fact, although Denver did not concern commercial speech, Justice Breyer, joined by Justices Stevens, O'Connor, and Souter, specifically mentioned Central Hudson's fourth prong (not more extensive than necessary) to demonstrate the Court's insistence that any restrictions on speech must be sufficiently tailored to achieve a substantial governmental purpose.⁽³⁵³⁾ So, while a challenge to the Just Say No Act will not be as easily successful as the challenge to Rhode Island's ban on alcohol price advertising, Denver shows that the Court will not abandon its high level of scrutiny of speech restrictions simply because the governmental purpose behind the restriction is to protect children.⁽³⁵⁴⁾

  Conclusion

Because the holding in 44 Liquormart was not supported by even a plurality of Justices, it is impossible to ascertain exactly what the Supreme Court's commercial speech jurisprudence is. Predictions as to the Court's future treatment of commercial speech cases can, however, be made with some degree of certainty. Notwithstanding the Court's still-developing commercial speech jurisprudence, it is clear that legislatures no longer enjoy the deference for the Court that they once enjoyed.⁽³⁵⁵⁾ Legislatures must now demonstrate that restrictions on commercial speech directly advance a substantial governmental interest.⁽³⁵⁶⁾ In addition, although it was not an issue in 44 Liquormart, it is possible that the Court will refuse to defer to a legislature's unsupported assertion as to the interest sought to be achieved by a commercial speech restriction.⁽³⁵⁷⁾

For now, at least, the Central Hudson test is intact.⁽³⁵⁸⁾ However, the level of scrutiny under which the Central Hudson test is applied is in question.⁽³⁵⁹⁾ Although Justice Thomas' suggestion of abandoning the Central Hudson test would be an unlikely development, Justice Thomas would prefer applying a strict level of scrutiny to commercial speech restrictions such as Rhode Island's.⁽³⁶⁰⁾ Justice Stevens, joined by Justices Kennedy and Ginsburg, advocated scrutinizing blanket bans on commercial speech with the same strict (or "stringent") level of scrutiny with which other types of protected speech are reviewed.⁽³⁶¹⁾ While Justice O'Connor, joined by the Chief Justice and Justices Souter and Breyer, declined to apply a stricter level of scrutiny to the application of the Central Hudson test, she did so because there was no need to apply a stricter standard; Rhode Island's alcohol price advertising ban failed even the "less stringent standard."⁽³⁶²⁾ Justice O'Connor, therefore, at least left open the possibility of adopting a stricter standard in the future should the need so arise.⁽³⁶³⁾ In short, the Court's current trend is toward, although still shy of, affording commercial speech the same level of protection other forms of protected speech enjoy.

Timothy R. Mortimer

1. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976) (citing Buckley v. Valeo, 424 U.S. 1, 35-59 (1976); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 384 (1973); New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964)).

2. Id. (citing Smith v. California, 361 U.S. 147, 150 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952); Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943)).

3. Id. (citing Sullivan, 376 U.S. at 266; NAACP v. Button, 371 U.S. 415, 429 (1963); Jamison v. Texas, 318 U.S. 413, 417 (1943); Cantwell v. Connecticut, 310 U.S. 296, 306-07 (1940)).

4. 517 U.S. 484 (1996).

5. See id. at 516.

6. See id. passim.

7. See infra notes 11-111 and accompanying text.

8. See infra notes 112-62 and accompanying text.

9. See infra notes 163-295 and accompanying text.

10. See infra notes 296-364 and accompanying text.

11. See Valentine v. Chrestensen, 316 U.S. 52, 53-55 (1942) (upholding a New York City ordinance, which prohibited the distribution of handbills on the streets unless the handbills were solely devoted to information or a public protest). Chrestensen, who wanted to solicit visitors to his submarine, distributed a double-faced handbill with a protest against the City Dock Department on one side and commercial advertising on the other. See id. at 53. Concluding that the protest against the City Dock Department was affixed with the intent of evading the ordinance, the Court held that the United States Constitution did not impose the same restraints on government with respect to purely commercial speech as it did on political speech. See id. at 53-55.

12. See Marc David Lawlor, Ivory Tower Paternalism and Lawyer Advertising: The Case of Florida Bar v. Went for it, Inc., 40 St. Louis U. L.J. 895, 896-909 (1996).

13. 421 U.S. 809 (1975).

14. See Va. Code Ann. § 18.1-63 (Michie 1960) (repealed).

15. See Bigelow, 421 U.S. at 811-14. The advertisement announced that abortions "are now legal in New York"; the Women's Pavilion would help women with unwanted pregnancies obtain "immediate placement in accredited hospitals and clinics at low cost"; the Women's Pavilion would, on a "strictly confidential" basis, "make all arrangements" and help with "information and counseling." Id. at 812. The advertisement also displayed the pavilion's telephone numbers. See id.

16. 316 U.S. 52 (1942).

17. Bigelow, 421 U.S. at 819-20 (citing Valentine, 316 U.S. at 55).

18. See id. at 820 n.6 ("The ruling was casual, almost offhand. And it has not survived reflection." (citing Cammarano v. United States, 358 U.S. 498, 514 (1959) (Douglas, J., concurring))). "There is some doubt concerning whether the `commercial speech' distinction anounced in Valentine v. Chrestensen . . . retains continuing validity." Id. (citing Lehman v. City of Shaker Heights, 418 U.S. 298, 314 n. 6 (1974) (Brennan, J., dissenting)).

19. Id. at 822.

20. Id.

21. See id. at 826.

22. See generally Virginia State Bd. of Pharmacy v. Virginia Consumer Council Inc., 425 U.S. 748 (1976); Lawlor, supra note 12.

23. 425 U.S. 748 (1976).

24. Va. Code Ann. § 54.524.35 (Michie 1974).

25. Virginia Bd. of Pharmacy, 425 U.S. at 749-50; see also Va. Code Ann. § 54-524.35 (Michie 1974). The statute provided, in part:

Any pharmacist shall be considered guilty of unprofessional conduct who . . . (3) publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms for professional services or for drugs containing narcotics or for any drugs which may be dispensed only by prescription.Id.

26. See Virginia Bd. of Pharmacy, 425 U.S. at 766.

27. Id. at 761.

28. Id. at 762 (quoting Pittsburgh Press Co. v. Human Relations Comm'n., 413 U.S. 376, 385 (1973); Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); Roth v. United States, 354 U.S. 476, 484 (1957)).

29. See id.

30. See id.

31. Id. at 763.

32. See Virginia Bd. of Pharmacy, 425 U.S. at 764 (citing Bigelow, 421 U.S. at 822-26; Fur Information and Fashion Council, Inc v. E. F. Timme & Son, 364 F. Supp. 16 (S.D.N.Y. 1973); Chicago Joint Bd. v. Chicago Tribune Co., 435 F.2d 470 (7th Cir. 1970).

33. Id. at 765.

34. Id.

35. Id. at 765.

36. See id. at 767-68.

37. See id. at 768.

38. See Virginia Bd. of Pharmacy, 425 U.S. at 768.

39. Id.

40. See id. at 768-69.

41. See id. at 769-70.

42. See id. at 769.

43. Id.

44. Virginia Bd. of Pharmacy, 425 U.S. at 770.

45. See, e.g., Bates v. State Bar of Arizona, 433 U.S. 350, 374 (1977). In Bates, Disciplinary Rule 2-101(B), which banned attorney advertising, was incorporated into Rule 29(a) of the Supreme Court of Arizona. Ariz. Rev. Stat. § 17A (Supp. 1976). In addition to the adverse effect attorney advertising was thought to have on professionalism, the State Bar argued that the nature of attorney advertising was inherently misleading because, in part, "advertising by attorneys will highlight irrelevant factors and fail to show the relevant factor of skill." Bates, 433 U.S. at 372.

46. Bates, 433 U.S. at 374.

47. Virginia Bd. of Pharmacy, 425 U.S. at 770.

48. 447 U.S. 557 (1980).

49. See id. at 564. In Central Hudson, the Public Service Commission banned all advertising that promoted the use of electricity in an effort to encourage energy conversation. See id. at 558-59.

50. Id. at 564.

51. Id. at 563-64 (citing Friedman v. Rogers, 440 U.S. 1, 13, 15-16 (1979); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 464-65 (1978); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388 (1973)).

52. Id. at 564.

53. Id.

54. Central Hudson, 447 U.S. at 564.

55. See, e.g., Virginia Bd. of Pharmacy, 425 U.S. 748. In Virginia Board of Pharmacy, the Court limited its holding to commercial speech proposing legal transactions, stating that "[u]ntruthful speech, commercial or otherwise, has never been protected for its own sake." Id. at 771-72. The Court questioned how directly the restriction would advance the state's interest when the pharmacists were already closely regulated. See id. at 768. Finally, the Court proposed the alternative of allowing consumers to determine their own best interests through the free flow of information. See id. at 770.

The Bates Court also questioned how directly a ban on attorney advertising would advance the state's interest in maintaining professionalism when other professions that allow advertising are not regarded as undignified. See Bates v. State Bar of Arizona, 433 U.S. 350, 370 (1977). The Ohralik Court upheld a restriction on face-to-face solicitation by lawyers because that was a situation inherently conducive to fraud, undue influence, overreaching, and other forms of "vexatious" conduct. See Ohralik, 436 U.S. at 460-68. In holding that a Texas statute banning the practice of optometry under a trade name was constitutional, the Friedman Court reasoned that, "[b]ecause these ill-defined associations of trade names with price and quality information can be manipulated by the users of trade names, there is a significant possibility that trade names will be used to mislead the public." Friedman v. Rogers, 440 U.S. 1, 12-13 (1978).

56. See generally 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995); United States v. Edge Broad. Co., 509 U.S. 418 (1993); Edenfield v. Fane, 507 U.S. 761 (1993); Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986).

57. 478 U.S. 328 (1986).

58. See id. at 330-32.

59. See id. at 340-41.

60. See id at 341.

61. See id.

62. See id.

63. Posadas, 478 U.S. at 342 (quoting Metro Media, Inc. v. San Diego, 453 U.S. 490, 509 (1981) (White, J., plurality opinion)).

64. See id.

65. See id.

66. See id. at 343.

67. See id. at 344.

68. See id.

69. See Posadas, 478 U.S. at 345. The Court distinguished Posadas from Bigelow, in which abortion, the underlying activity that was the subject of the advertising, was constitutionally protected. See id.

70. Id. at 345-46.

71. See id. at 346-48.

72. 509 U.S. 418 (1993).

73. See generally id.

74. Id. at 422 (citing 18 U.S.C. § 1307 (Supp. III 1991)).

75. See id. at 423.

76. See id. at 423.

77. See id. at 428.

78. See Edge Broadcasting, 509 U.S. at 428.

79. See id. at 429 (citing Board of Trustees of N.Y. v. Fox, 492 U.S. 469, 480 (1989)).

80. Id. at 430 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)).

81. Id. (quoting Ward, 491 U.S. at 801).

82. See id. at 429-35.

83. Edenfield v. Fane, 507 U.S. 761, 767 (1993).

84. 507 U.S. 761 (1993).

85. See id. at 767.

86. See id. at 764 (citing Fla. Admin. Code Ann. r. 21A-24.002(2)(c) (1992)).

87. See id. at 770-74.

88. Id. at 770-71.

89. See id. at 771.

90. Edenfield, 507 U.S. at 773 (citation omitted). It is noteworthy that one lone Justice, Justice Blackmun, disengaged himself from any part of the opinion that suggested commercial speech, free from fraud, duress, or the advocacy of illegal activity, was entitled to only an intermediate standard of review. See id. at 1804 (Blackmun, J., concurring).

91. 514 U.S. 476 (1995).

92. Id. at 482 (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 566 (1980)).

94. See id. at 478 (citing 27 U.S.C. § 205(e)(2) (1994)).

95. See id. at 483-91.

96. See id. at 487. The Twenty-first Amendment, which was at issue (although not significantly) in 44 Liquormart v. Rhode Island, see infra Parts II & III, repealed prohibition and allowed the states ample latitude in regulating the transportation, importation, and possession of alcohol. See U.S. Const. amend. XXI, §§ 1-2.

97. See Rubin, 514 U.S. at 485.

98. See id. at 487-88.

99. See id. at 488.

100. See id.

101. See id. at 489.

102. See id. at 489-91.

103. See Rubin, 514 U.S. at 491-97 (Stevens, J., concurring).

104. See id. at 493 (Stevens, J., concurring).

105. Id. at 496 (Stevens, J., concurring).

106. See id. (Stevens, J., concurring).

107. Id. (Stevens, J., concurring). The consequences included investors losing their savings and consumers purchasing dangerous products. See id.

108. See id. (Stevens, J., concurring).

109. Rubin, 514 U.S. at 496 (Stevens, J., concurring).

110. See id. at 497 (Stevens, J., concurring).

111. See id. (Stevens, J., concurring) (citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 769-70 (1976)).

112. See R.I. Gen. Laws § 3-8-7 (1987). The statute provided:

No manufacturer, wholesaler, or shipper from without this state and no holder of a license issued under the provisions of this title and chapter shall cause to 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 the rules and regulations of the department.Id.

113. See R.I. Gen. Laws § 3-8-8.1 (1987). That statute provided:

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 . . . .Id.

114. See R.I. Gen. Laws § 3-8-8 (1987). "The liquor control aldministrator is hereby authorized to promulgate rules which will enforce the provisions of § 3-8-7 and he shall have the power to suspend the license of any license-holder in violation thereof." Id. The Liquor Control Administrator promulgated the following regulation to enforce the provisions of § 3-8-7: "No placard or sign of any kind which is visible from the exterior of any Class A premises licensed to sell at retail shall make reference to the price of any alcoholic beverage or mixture of alcoholic beverages." R.I. Liquor Control Admin., Reg. § 32.

115. 44 Liquormart, Inc. v. Racine, 829 F. Supp. 543, 545 (D.R.I. 1993).

116. See id.; see also Petitioner's Brief at 5, 44 Liquormart v. Rhode Island, 116 S. Ct. 1495 (1996) (No. 94-1140).

117. See Racine, 829 F. Supp. at 545.

118. See id.

119. See id.

120. See 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1503 (1996).

121. Id.

122. See id. Peoples Super Liquor Stores is a Massachusetts retail alcohol dealer located near the Rhode Island border. See id. Peoples advertised in Massachusetts, but was not allowed to do so in Rhode Island. See id.

123. See id. at 1503.

124. Racine, 829 F. Supp. 543, 548.

125. Id.

126. See id. at 546 (citing Tr., 3/11/93, at 50-51, 72; Pittman Dep., 11/10/92, at 12).

127. See id.

128. See id. at 546-48.

129. See id.

130. Racine, 829 F. Supp. at 549.

131. See id. at 550-55.

132. See id. at 545.

133. See id.

134. See id.

135. Id. at 551; see also U.S. Const. amend. XXI, § 2 ("The transportation or importation into any State, . . . for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.").

136. See Racine, 829 F. Supp. at 551.

137. Id. at 552.

138. Id. (citing New York State Liquor Auth. v. Bellanca, 452 U.S. 714 (1981); California v. LaRue, 409 U.S. 109 (1972)).

139. See id. at 553-54.

140. See id. at 554.

141. See id.

142. See Racine, 829 F. Supp. at 554.

143. See id.

144. Id. at 549, 554.

145. See id. at 554.

146. Id. at 555.

147. See 44 Liquormart, Inc. v. Rhode island, 39 F.3d 5, 9 (1st Cir. 1994).

148. See id. at 7.

149. See id.

150. See id. at 8.

151. Id. at 7 (quoting Central Hudson, 447 U.S. at 569).

152. Id. (quoting Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 648 (1985)).

153. 44 Liquormart, 39 F.3d at 7 (quoting Edenfield v. Fane, 507 U.S. 761, 771 (1993)).

154. See id. (citing Posadas, 478 U.S. at 341-42).

155. See id.

156. Id.

157. Id. at 8.

158. See id.

159. See 44 Liquormart, 39 F.3d at 7.

160. See id. (citing Trustees of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 478 (1989)).

161. See id.

162. See id. at 8-9.

163. See 44 Liquormart v. Rhode Island, 116 S. Ct. 1495, 1515 (1996). Justices Scalia, Thomas, and O'Connor filed concurring opinions.

164. See generally id.

165. See U.S. Const. amend. XXI, §§ 1-2.

166. 44 Liquormart, 116 S. Ct. at 1514 (quoting Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138 (1939)).

167. See 44 Liquormart, 39 F.3d at 7-8; 44 Liquormart, 829 F. Supp. 543, 551; see also supra Part III.A.1-2.

168. See 44 Liquormart, 116 S. Ct. at 1514.

169. Id. (citation omitted).

170. See id. (citing Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 712 (1984); California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 112-14 (1980)).

171. See id. at 1514-15 (citing Larkin v. Grendel's Den, Inc., 459 U.S. 116, 122 & n.5 (1982)).

172. See id. at 1515 (citing Craig v. Boren, 429 U.S. 190, 209 (1976)).

173. Id.

174. See 44 Liquormart, 116 S. Ct. at 1515.

175. See id. at 1501-04, 1514-15.

176. See id. at 1504-14 (Stevens, J., for a plurality).

177. See id. at 1504-07 (Stevens, J., for a plurality).

178. See id. at 1504 (Stevens, J., for a plurality).

179. See id. at 1504-05 (Stevens, J., for a plurality); see also supra Part II. In Bigelow, the Court recognized that commercial speech had value in the marketplace of ideas and was entitled to some level of First Amendment protection. See Bigelow v. Virginia, 421 U.S. 809, 825-26 (1975). In Virginia Board of Pharmacy, the Court based its decision to afford First Amendment protection to purely commercial speech on the public's interest in receiving accurate commercial information. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976). The Court also explained that the choice between the paternalistic suppression of commercial speech for the supposed good of the people and the dangers of the public's misuse of the commercial speech was the kind of choice preserved by the First Amendment. See id. at 770.

180. See 44 Liquormart, 116 S. Ct. at 1505-07 (Stevens, J., for a plurality). "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.

181. 44 Liquormart, 116 S. Ct. at 1506 (Stevens, J., for a plurality) (quoting Linmark Assoc., Inc. v. Township of Willingboro, 431 U.S. 85, 96 (1977); Carey v. Population Services Int'l, 431 U.S. 678, 701, n. 28 (1977)).

In Linmark, the white population of Willingboro, New Jersey was decreasing while the city's black population was increasing. See Linmark, 431 U.S. at 87. In an attempt to halt the "panic selling" of homes by whites who feared their property values would decline as a result of the increasing black population, the city passed an ordinance prohibiting "For Sale" and "Sold" signs in yards. Id. at 87-88. The Court held that the ordinance was unconstitutional. See id. at 97. The Court reasoned that alternative channels for communication were unsatisfactory because the other options--newspaper advertising and listing with real estate agents--were more costly, less likely to reach those not seeking specific information, and probably less effective. See id. at 93. In addition, the ordinance was not a reasonable time, place or manner restriction because the city prohibited signs based on content for fear that consumers receiving the information would act upon it. See id. at 94.

182. See 44 Liquormart, 116 S. Ct. at 1506 (Stevens, J., for a plurality); see also supra Part II.

183. See 44 Liquormart, 116 S. Ct. at 1507-08 (Stevens, J., for a plurality).

184. See id. at 1507 (Stevens, J., for a plurality).

185. See id. (Stevens, J., for a plurality).

186. See id. (Stevens, J., for a plurality).

187. See id. at 1507-08 (Stevens, J., for a plurality).

188. 44 Liquormart, 116 S. Ct. at 1507-08 (Stevens, J., for a plurality).

189. Id. at 1508 (Stevens, J., for a plurality).

190. See id. (Stevens, J., for a plurality) (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 426 (1993)).

191. Id. (Stevens, J., for a plurality) (quoting Central Hudson, 447 U.S. at 566 & n.9).

192. See id. (Stevens, J., for a plurality).

193. Id. (Stevens, J., for a plurality) (citing Linmark Assoc., Inc. v. Township of Willingboro, 413 U.S. 85, 96 (1977)).

194. See 44 Liquormart, 116 S. Ct. at 1508 (Stevens, J., for a plurality).

195. Id. (Stevens, J., for a plurality).

196. See id. at 1508-14 (Stevens, J., for a plurality).

197. Rubin v. Coors Brewing Co., 514 U.S. 476, 493 (1995) (Stevens, J., for a plurality); see also supra note 108 and accompanying text.

198. See Rubin, 514 U.S. at 497 (Stevens, J., for a plurality); see also infra note 108 and accompanying text.

199. 44 Liquormart, 116 S. Ct. at 1508 (Stevens, J., for a plurality) (citation omitted).

200. See 44 Liquormart, Inc. v. Racine, 829 F. Supp. 543, 545 (D.R.I. 1993).

201. See 44 Liquormart, 116 S. Ct. at 1509-15 (Stevens, J., for a plurality).

202. Id. at 1509 (Stevens, J., for a plurality).

203. Id. (Stevens, J., for a plurality) (first emphasis added).

204. See id. (Stevens, J., for a plurality).

205. See id. (Stevens, J., for a plurality).

206. See 44 Liquormart, 116 S. Ct. at 1509 (Stevens, J., for a plurality).

207. See id. at 1509-10 (Stevens, J., for a plurality) (citing Racine, 829 F. Supp. at 549).

208. See id. at 1510 (Stevens, J., for a plurality) (citing Racine, 829 F. Supp. at 549).

209. See id. (Stevens, J., for a plurality).

210. Id. (quoting Edenfield, 507 U.S. at 770).

211. See id. (Stevens, J., for a plurality).

212. See 44 Liquormart, 116 S. Ct. at 1510 (Stevens, J., for a plurality).

213. See id. (Stevens, J., for a plurality).

214. See id. (Stevens, J., for a plurality) (citing Racine, 829 F. Supp. at 549).

215. See id. (Stevens, J., for a plurality) (quoting Board of Trustees of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989) (citing Rubin, 514 U.S. at 492; Linmark, 431 U.S. at 97).

216. See id. (Stevens, J., for a plurality).

217. Id. (Stevens, J., for a plurality).

218. See 44 Liquormart, 116 S. Ct. at 1510 (Stevens, J., for a plurality).

219. See id. at 1510-14 (Stevens, J., for a plurality).

220. See 44 Liquormart, 116 S. Ct. at 1510-11 (Stevens, J., for a plurality).

221. Id. at 1511 (Stevens, J., for a plurality).

222. See id. at 1511 (Stevens, J., for a plurality).

223. See id. (Stevens, J., for a plurality) (citing Edge Broad., 509 U.S. at 433-35).

224. See id. (Stevens, J., for a plurality) (citing Posadas, 478 U.S. at 344).

225. See id. (Stevens, J., for a plurality).

226. Id. (Stevens, J., for a plurality).

227. See id. (Stevens, J., for a plurality). In Posadas, after deciding that the ban on casino advertising survived the Central Hudson test, the Court, in dicta, stated, "the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling. . . ." Posadas, 478 U.S. at 345-46; see also supra Part II.

228. 44 Liquormart, 116 S. Ct. at 1512 (Stevens, J., for a plurality) (internal quotations omitted).

229. Id. (Stevens, J., for a plurality).

230. Id. (Stevens, J., for a plurality).

231. See id. (Stevens, J., for a plurality).

232. See id. (Stevens, J., for a plurality).

233. See id. at 1513 (Stevens, J., for a plurality).

234. 44 Liquormart, 116 S. Ct. at 1513 (Stevens, J., for a plurality).

235. See id. (Stevens, J., for a plurality).

236. Id. (Stevens, J., for a plurality).

237. Id. (Stevens, J., for a plurality).

238. See id. at 1513-14 (Stevens, J., for a plurality).

239. See id. at 1507-08 (Stevens, J., for a plurality).

240. 44 Liquormart, 116 S. Ct. at 1508 (Stevens, J., for a plurality).

241. See id. at 1509-10 (Stevens, J., for a plurality).

242. See id. at 1510 (Stevens, J., for a plurality).

243. See id. at 1510-14 (Stevens, J., for a plurality).

244. See id. at 1520-23 (O'Connor, J., concurring in the judgment).

245. See id. at 1521 (O'Connor, J., concurring in the judgment).

246. 44 Liquormart, 116 S. Ct. at 1521 (O'Connor, J., concurring in the judgment).

247. Id. (O'Connor, J., concurring in the judgment) (quoting Board of Trustees of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). In Fox, students of the State University of New York challenged regulations of the University that prohibited most private commercial enterprises from operating on campus. See Fox, 492 U.S. at 471-73. On remand for determination of whether the third and fourth prongs of the Central Hudson test were satisfied, the Court of Appeals instructed the District Court that the fourth prong (not more extensive than necessary) was satisfied only if the University's regulations were the least restrictive measure available to effectively protect the State's interests. See id. at 475-76. Seven Justices rejected this interpretation in favor of a "reasonable fit" standard. See id. at 480.

248. 44 Liquormart, 116 S. Ct. at 1521 (O'Connor, J., concurring in the judgment) (citing Fox, 492 U.S. at 480).

249. Id. (O'Connor, J., concurring in the judgment) (citing Florida Bar v. Went For It, Inc., 515 U.S. 618, 633-34 (1995)). In Florida Bar, lawyers were prohibited from directly or indirectly soliciting to accident victims or their families for a period of thirty days following an accident or disaster. See Florida Bar, 515 U.S. at 620-21.

250. 44 Liquormart, 116 S. Ct. at 1521 (O'Connor, J., concurring in the judgment) (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 (1993)).

251. See id. (O'Connor, J., concurring in the judgment) (citing Rubin, 514 U.S. at 490-91).

252. Id. (O'Connor, J., concurring in the judgment) (citing Florida Bar, 515 U.S. at 633-34).

253. See id. at 1521-23 (O'Connor, J., concurring in the judgment).

254. See id. at 1521-22 (O'Connor, J., concurring in the judgment).

255. See id. (O'Connor, J., concurring in the judgment).

256. See 44 Liquormart, 116 S. Ct. at 1521-22 (O'Connor, J., concurring in the judgment) (citing 44 Liquormart v. Rhode Island, 39 F.3d 5, 7 (1st Cir. 1994)).

257. See id. at 1522 (O'Connor, J., concurring in the judgment).

258. See id. (O'Connor, J., concurring in the judgment).

259. See id. at 1521-22 (O'Connor, J., concurring in the judgment).

260. See id. at 1522-23 (O'Connor, J., concurring in the judgment).

261. See id. (O'Connor, J., concurring in the judgment).

262. See 44 Liquormart, 116 S. Ct. at 1522-23 (O'Connor, J., concurring in the judgment). Justice Stevens declared that Rhode Island's alcohol price advertising ban must be reviewed with "special care." See id. at 1508 (Stevens, J., for a plurality). Justice Stevens also commented that Rhode Island failed to establish the reasonable fit, generally applicable to commercial speech cases, between the ban and the State's goal, so it stood to reason that the ban could not survive the more stringent connstitutional review required for blanket bans such as Rhode Island's. See id. at 1510 (Stevens, J., for a plurality).

263. See id. at 1521 (O'Connor, J., concurring in the judgment).

264. See id. at 1522 (O'Connor, J., concurring in the judgment).

265. See id. at 1523 (O'Connor, J., concurring in the judgment).

266. See, e.g., Rubin v. Coors Brewing Co., 514 U.S. 476, 476 (1995) (Stevens, J., concurring); Edenfield v. Fane, 507 U.S. 761, 777-78 (1993) (Blackmun, J., concurring). In Rubin, Justice Stevens called the Central Hudson test a "misguided approach" that imposed an artificial distinction between commercial and non-commercial speech. Rubin, 514 U.S. at 493 (Stevens, J., concurring); see also supra Part II. Justice Stevens proclaimed in Rubin that any paternalistically motivated governmental restriction on the dissemination of accurate information should receive "the same stringent review as any other content-based abridgment of protected speech." Rubin, 514 U.S. at 496-97 (Stevens, J., concurring).

In Edenfield, Justice Blackmun concurred in the Court's judgment invalidating Florida's statute banning uninvited in-person solicitation by CPAs. See Edenfield, 507 U.S. at 777-78 (Blackmun, J., concurring). Justice Blackmun, however, disengaged himself from any part of the opinion that suggested truthful, nonmisleading speech advocating a legal activity was entitled to only intermediate scrutiny. See id. (Blackmun, J., concurring).

267. See 44 Liquormart, 116 S. Ct. at 1515-20 (Thomas, J., concurring in part and in the judgment); see also Rubin, 514 U.S. at 491-987 (Stevens, J., concurring); supra Part II.

In Virginia Board of Pharmacy, the Court recognized the need for the free flow of commercial information in order for consumers to make intelligently formed opinions as to their purchases and as to how the free market system ought to be regulated. See Virginia State Bd. of Pharmacy v. Virgi