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This is the Supreme Court's May 13, 1996, ruling invalidating a Rhode Island ban on mentioning prices in liquor advertisements.
SUPREME COURT OF THE UNITED STATES
Syllabus
44 LIQUORMART, INC., ET AL.
v.
RHODE ISLAND ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1140. Argued November 1, 1995-Decided May 13, 1996
Petitioners, a licensed Rhode Island liquor retailer and a licensed
Massachusetts liquor retailer patronized by Rhode Island residents,
filed this action seeking a declaratory judgment that Rhode Island
laws banning the advertisement of retail liquor prices except at the
place of sale violate the First Amendment. In concluding that the ban
was unconstitutional because it did not directly advance the State's
asserted interest in the promotion of temperance and was more
extensive than necessary to serve that interest, the District Court
reasoned that the party seeking to uphold a restriction on commercial
speech carries the burden of justifying it and that the Twenty-first
Amendment did not shift or diminish that burden. In reversing, the
Court of Appeals, inter alia, found "inherent merit" in the State's
submission that competitive price advertising would ultimately
increase sales, and agreed with it that the Twenty-first Amendment
gave its advertising ban an added presumption of validity.
Held: The judgment is reversed.
39 F. 3d 5, reversed.
JUSTICE STEVENS delivered the opinion of the Court with respect
to Parts I, II, VII, and VIII, concluding:
1. The Twenty-first Amendment cannot save Rhode Island's price
advertising ban because that Amendment does not qualify the First
Amendment's prohibition against laws abridging the freedom of
speech. Although the Twenty-first Amendment-which repealed
Prohibition and gave the States the power to prohibit commerce in, or
the use of, alcoholic beverages-limits the dormant Commerce
Clause's effect on a State's regulatory power over the delivery or use
of liquor within its borders, the Amendment does not license the
States to ignore their obligations under other constitutional
provisions. See, e.g., Capital Cities Cable, Inc. v. Crisp, 467 U. S.
691, 712. California v. LaRue, 409 U. S. 109, 118-119,
disavowed. Because the First Amendment must be included among
those other provisions, the Twenty-first Amendment does not shield
the advertising ban from constitutional scrutiny. Pp. 28-30.
2. Because Rhode Island has failed to carry its heavy burden of
justifying its complete ban on price advertising, that ban is invalid.
P. 31.
JUSTICE STEVENS delivered the principal opinion with respect to
Parts III-VI, concluding that Rhode Island's ban on advertisements
that provide the public with accurate information about retail liquor
prices is an unconstitutional abridgment of the freedom of speech.
Pp. 8-28.
(a) JUSTICE STEVENS, joined by JUSTICE KENNEDY,
JUSTICE SOUTER, and JUSTICE GINSBURG, concluded in Part
III that although the First Amendment protects the dissemination of
truthful and nonmisleading commercial messages about lawful
products and services in order to ensure that consumers receive
accurate information, see, e.g., Virginia Bd. of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U. S. 748, 765, the special
nature of commercial speech, including its "greater objectivity" and
"greater hardiness," authorizes the State to regulate potentially
deceptive or overreaching advertising more freely than other forms of
protected speech, see, e.g., id., at 771-772, n. 24, and requires less
than strict review of such regulations, Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 566, n. 9.
However, regulations that entirely suppress commercial speech in
order to pursue a policy not related to consumer protection must be
reviewed with "special care," and such blanket bans should not be
approved unless the speech itself was flawed in some way, either
because it was deceptive or related to unlawful activity. See ibid.
Pp. 8-13.
(b) JUSTICE STEVENS, joined by JUSTICE KENNEDY and
JUSTICE GINSBURG, concluded in Part IV that a review of the
case law reveals that commercial speech regulations are not all subject
to a similar form of constitutional review simply because they target a
similar category of expression. When a State regulates commercial
messages to protect consumers from misleading, deceptive, or
aggressive sales practices, or requires the disclosure of beneficial
consumer information, the regulation's purpose is consistent with the
reasons for according constitutional protection to commercial speech
and therefore justifies less than strict review. However, where a
State entirely prohibits the dissemination of truthful, nonmisleading
commercial messages for reasons unrelated to the preservation of a
fair bargaining process, there is far less reason to depart from the
rigorous review that the First Amendment generally demands. The
special dangers that attend such complete bans-including, most
obviously, the fact that they all but foreclose alternative channels of
communication-present sound reasons that justify more careful
review. Pp. 14-17.
(c) JUSTICE STEVENS, joined by JUSTICE KENNEDY,
JUSTICE SOUTER, and JUSTICE GINSBURG, concluded in Part
V that because Rhode Island's advertising ban constitutes a blanket
prohibition against truthful, nonmisleading speech about a lawful
product, and serves an end unrelated to consumer protection, it must
be reviewed with "special care" under Central Hudson, 447 U. S., at
566, n. 9. It cannot survive that review because it does not satisfy
even the less than strict standard that generally applies in commercial
speech cases under Central Hudson, id., at 566. First, the
advertising ban does not directly advance the State's substantial
interest in promoting temperance. See ibid. Because a commercial
speech regulation may not be sustained if it provides only ineffective
or remote support for the government's purpose, id., at 564, the
State bears the burden of showing not merely that its regulation will
advance its interest, but also that it will do so "to a material degree,"
see, e.g., Edenfield v. Fane, 507 U. S. 761, 767. In this case,
therefore, the State must show that the ban will significantly reduce
alcohol consumption, but has presented no evidence to suggest a
significant reduction. Second, the ban is more extensive than
necessary to serve its stated interest, see 447 U. S., at 566, since
alternative forms of regulation that would not involve any speech
restrictions-e.g., the maintenance of higher prices either by direct
regulation or by increased taxation, the rationing of per capita
purchases, or the use of educational campaigns focused on drinking
problems-would be more likely to achieve the goal of promoting
temperance. Thus, the State has failed to establish the requisite
"reasonable fit" between its regulation and its goal. See, e.g., Board
of Trustees, State Univ. of N.Y. v. Fox, 492 U. S. 469, 480. Pp.
17-21.
(d) JUSTICE STEVENS, joined by JUSTICE KENNEDY,
JUSTICE THOMAS, and JUSTICE GINSBURG, concluded in Part
VI that the State's arguments in support of its claim that it merely
exercised appropriate "legislative judgment" in determining that a
price advertising ban would best promote temperance-i.e., (1) that
because expert opinions as to the effectiveness of the ban "go both
ways," the Court of Appeals correctly concluded that the ban
constituted a "reasonable choice" by the legislature; (2) that precedent
requires that particular deference be accorded that legislative choice
because the State could, if it chose, ban the sale of alcoholic
beverages outright; and (3) that deference is appropriate because
alcoholic beverages are so-called "vice" products-must be rejected.
See Rubin, 514 U. S., at ___, n. 2. United States v. Edge
Broadcasting, 509 U. S. 418, distinguished; Posadas de Puerto Rico
Associates v. Tourism Co. of P. R., 478 U. S. 328, distinguished
and disavowed in part. Pp. 22-28.
JUSTICE SCALIA concluded that guidance as to what the First
Amendment forbids, where the core offense of suppressing particular
political ideas is not at issue, must be taken from the long accepted
practices of the American people. See McIntyre v. Ohio Elections
Commission, 514 U. S. ___, ___ (SCALIA, J., dissenting). Since,
however, the Court has before it no evidence as to state legislative
practices regarding regulation of commercial speech when the First
and Fourteenth Amendments were adopted, or even as to any
national consensus on the subject later developed, he would simply
adhere to the Court's existing jurisprudence, which renders the
Rhode Island regulation invalid. Pp. 1-2.
JUSTICE THOMAS concluded that in cases such as this, in which
the government's asserted interest is to keep legal users of a product
or service ignorant in order to manipulate their choices in the
marketplace, the Central Hudson balancing test should not be
applied. Rather, such an "interest" is per se illegitimate, cf., e.g.,
Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U. S. 748, 768-770, and can no more justify regulation of
"commercial" speech than it can justify regulation of
"noncommercial" speech. Pp. 1-12.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE,
JUSTICE SOUTER, and JUSTICE BREYER, agreed with the
principal opinion that Rhode Island's prohibition on alcohol-price
advertising is invalid and cannot be saved by the Twenty-first
Amendment, but concluded that the First Amendment question must
be resolved more narrowly by applying the test established in Central
Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447
U. S. 557, 566. Assuming that the prohibition satisfies the test's first
three prongs-i.e., that (1) the speech at issue concerns lawful activity
and is not misleading, (2) the asserted governmental interest is
substantial, and (3) the regulation directly advances the governmental
interest-Rhode Island's regulation fails the final fourth prong because
its ban is more extensive than necessary to serve its stated interest.
Rhode Island justifies its ban on price advertising on the grounds that
the ban is intended to keep alcohol prices high as a way to keep
consumption low. In order for a speech restriction to pass muster
under the fourth prong, there must be a reasonable fit between the
legislature's goal and method. Board of Trustees of State Univ. of
N. Y. v. Fox, 492 U. S. 469, 480. The fit here is not reasonable,
since the State has other methods at its disposal-e.g., establishing
minimum prices and/or increasing sales taxes on alcoholic beverages-
that would more directly accomplish its stated goal without intruding
on sellers' ability to provide truthful, nonmisleading information to
customers. Posadas de Puerto Rico Associates v. Tourism Co. of P.
R., 478 U. S. 328, 341-344, distinguished. The principal opinion
errs in adopting a new analysis for the evaluation of commercial
speech regulation. Pp. 1-7.
STEVENS, J., announced the judgment of the Court, and delivered
the opinion of the Court with respects to Parts I, II, and VII, in
which SCALIA, KENNEDY, SOUTER, THOMAS, and
GINSBURG, JJ., joined, the opinion of the Court with respect to
Part VIII, in which SCALIA, KENNEDY, SOUTER, and
GINSBURG, JJ., joined, an opinion with respect to Parts III and V,
in which KENNEDY, SOUTER, and GINSBURG, JJ., joined, an
opinion with respect to Part VI, in which KENNEDY, THOMAS,
and GINSBURG, JJ., joined, and an opinion with respect to Part
IV, in which KENNEDY and GINSBURG, JJ., joined. SCALIA,
J., and THOMAS, J., filed opinions concurring in part and
concurring in the judgment. O'CONNOR, J., filed an opinion
concurring in the judgment, in which REHNQUIST, C. J., and
SOUTER and BREYER, JJ., joined.
______________________________________________________
__
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Wash-ington, D.C. 20543, of any
typographical or other formal errors, in order that corrections may be
made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 94-1140
44 LIQUORMART, INC. AND PEOPLES SUPER LIQUOR
STORES, INC., PETITIONERS
v.
RHODE ISLAND AND RHODE ISLAND
LIQUOR STORES ASSOCIATION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FIRST CIRCUIT
[May 13, 1996]
JUSTICE STEVENS announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I, II, VII, and
VIII, an opinion with respect to Parts III and V, in which JUSTICE
KENNEDY, JUSTICE SOUTER, and JUSTICE GINSBURG join,
an opinion with respect to Part VI, in which JUSTICE KENNEDY,
JUSTICE THOMAS, and JUSTICE GINSBURG join, and an
opinion with respect to Part IV, in which JUSTICE KENNEDY and
JUSTICE GINSBURG join.
Last Term we held that a federal law abridging a brewer's right to
provide the public with accurate information about the alcoholic
content of malt beverages is unconstitutional. Rubin v. Coors
Brewing Co., 514 U. S. ___, ___ (1995) (slip op., at 14). We now
hold that Rhode Island's statutory prohibition against advertisements
that provide the public with accurate information about retail prices of
alcoholic beverages is also invalid. Our holding rests on the
conclusion that such an advertising ban is an abridgment of speech
protected by the First Amendment and that it is not shielded from
constitutional scrutiny by the Twenty-first Amendment.1
In 1956, the Rhode Island Legislature enacted two separate
prohibitions against advertising the retail price of alcoholic
beverages. The first applies to vendors licensed in Rhode Island as
well as to out-of-state manufacturers, wholesalers, and shippers. It
prohibits them from "advertising in any manner whatsoever" the
price of any alcoholic beverage offered for sale in the State; the only
exception is for price tags or signs displayed with the merchandise
within licensed premises and not visible from the street.2 The
second statute applies to the Rhode Island news media. It contains a
categorical prohibition against the publication or broadcast of any
advertisements-even those referring to sales in other States-that
"make reference to the price of any alcoholic beverages."3
In two cases decided in 1985, the Rhode Island Supreme Court
reviewed the constitutionality of these two statutes. In S&S Liquor
Mart, Inc. v. Pastore, 497 A. 2d 729 (R. I.), a liquor retailer located
in Westerly, Rhode Island, a town that borders the State of
Connecticut, having been advised that his license would be revoked
if he advertised his prices in a Connecticut paper, sought to enjoin
enforcement of the first statute. Over the dissent of one Justice, the
court upheld the statute. It concluded that the statute served the
substantial state interest in "`the promotion of temperance.'"4 Id., at
737. Because the plaintiff failed to prove that the statute did not
serve that interest, the court held that he had not carried his burden of
establishing a violation of the First Amendment. In response to the
dissent's argument that the court had placed the burden on the wrong
party, the majority reasoned that the Twenty-first Amendment gave
the statute "`an added presumption [of] validity.'" S&S Liquor Mart,
Inc. v. Pastore, 497 A. 2d, at 732. Although that presumption had
not been overcome in that case, the State Supreme Court assumed
that in a future case the record might "support the proposition that
these advertising restrictions do not further temperance objectives."
Id., at 734.
In Rhode Island Liquor Stores Assn. v. Evening Call Pub. Co., 497
A. 2d 331 (R. I. 1985), the plaintiff association5 sought to enjoin
the publisher of the local newspaper in Woonsocket, Rhode Island,
from accepting advertisements disclosing the retail price of alcoholic
beverages being sold across the state line in Millville, Massachusetts.
In upholding the injunction, the State Supreme Court adhered to its
reasoning in the Pastore case and rejected the argument that the
statute neither "directly advanced" the state interest in promoting
temperance, nor was "more extensive than necessary to serve that
interest" as required by this Court's decision in Central Hudson Gas
& Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557,
563 (1980). It assumed the existence of other, "perhaps more
effective means" of achieving the State's "goal of temperance", but
concluded that it was "not unreasonable for the State of Rhode Island
to believe that price advertising will result in increased sales of
alcoholic beverages generally." Rhode Island Liquor Stores Assn. v.
Evening Call Pub. Co., 497 A. 2d, at 336.
Petitioners 44 Liquormart, Inc. (44 Liquormart), and Peoples Super
Liquor Stores, Inc. (Peoples), are licensed retailers of alcoholic
beverages. Petitioner 44 Liquormart operates a store in Rhode Island
and petitioner Peoples operates several stores in Massachusetts that
are patronized by Rhode Island residents. Peoples uses alcohol price
advertising extensively in Massachusetts, where such advertising is
permitted, but Rhode Island newspapers and other media outlets have
refused to accept such ads.
Complaints from competitors about an advertisement placed by 44
Liquormart in a Rhode Island newspaper in 1991 generated
enforcement proceedings that in turn led to the initiation of this
litigation. The advertisement did not state the price of any alcoholic
beverages. Indeed, it noted that "State law prohibits advertising
liquor prices." The ad did, however, state the low prices at which
peanuts, potato chips, and Schweppes mixers were being offered,
identify various brands of packaged liquor, and include the word
"WOW" in large letters next to pictures of vodka and rum bottles.
Based on the conclusion that the implied reference to bargain prices
for liquor violated the statutory ban on price advertising, the Rhode
Island Liquor Control Administrator assessed a $400 fine.
After paying the fine, 44 Liquormart, joined by Peoples, filed this
action against the administrator in the Federal District Court seeking a
declaratory judgment that the two statutes and the administrator's
implementing regulations violate the First Amendment and other
provisions of federal law. The Rhode Island Liquor Stores
Association was allowed to intervene as a defendant and in due
course the State of Rhode Island replaced the administrator as the
principal defendant. The parties stipulated that the price advertising
ban is vigorously enforced, that Rhode Island permits "all advertising
of alcoholic beverages excepting references to price outside the
licensed premises," and that petitioners' proposed ads do not concern
an illegal activity and presumably would not be false or misleading.
44 Liquour Mart, Inc. v. Racine, 829 F. Supp. 543, 545 (R. I.
1993). The parties disagreed, however, about the impact of the ban
on the promotion of temperance in Rhode Island. On that question
the District Court heard conflicting expert testimony and reviewed a
number of studies.
In his findings of fact, the District Judge first noted that there was a
pronounced lack of unanimity among researchers who have studied
the impact of advertising on the level of consumption of alcoholic
beverages. He referred to a 1985 Federal Trade Commission study
that found no evidence that alcohol advertising significantly affects
alcohol abuse. Another study indicated that Rhode Island ranks in
the upper 30% of States in per capita consumption of alcoholic
beverages; alcohol consumption is lower in other States that allow
price advertising. After summarizing the testimony of the expert
witnesses for both parties, he found "as a fact that Rhode Island's
off-premises liquor price advertising ban has no significant impact on
levels of alcohol consumption in Rhode Island." Id., at 549.
As a matter of law, he concluded that the price advertising ban was
unconstitutional because it did not "directly advance" the State's
interest in reducing alcohol consumption and was "more extensive
than necessary to serve that interest." Id., at 555. He reasoned that
the party seeking to uphold a restriction on commercial speech carries
the burden of justifying it and that the Twenty-first Amendment did
not shift or diminish that burden. Acknowledging that it might have
been reasonable for the state legislature to "assume a correlation
between the price advertising ban and reduced consumption," he held
that more than a rational basis was required to justify the speech
restriction, and that the State had failed to demonstrate a reasonable
"`fit'" between its policy objectives and its chosen means. Ibid.
The Court of Appeals reversed. It found "inherent merit" in the
State's submission that competitive price advertising would lower
prices and that lower prices would produce more sales. 39 F. 3d 5,
7 (CA1 1994). Moreover, it agreed with the reasoning of the Rhode
Island Supreme Court that the Twenty-first Amendment gave the
statutes an added presumption of validity. Id., at 8. Alternatively, it
concluded that reversal was compelled by this Court's summary
action in Queensgate Investment Co. v. Liquor Control Comm'n of
Ohio, 459 U. S. 807 (1982). See 39 F. 3d, at 8. In that case the
Court dismissed the appeal from a decision of the Ohio Supreme
Court upholding a prohibition against off-premises advertising of the
prices of alcoholic beverages sold by the drink. See Queensgate
Investment Co. v. Liquor Control Comm'n of Ohio, 69 Ohio St. 2d
361, 433 N. E. 2d 138 (1982).
Queensgate has been both followed and distinguished in subsequent
cases reviewing the validity of similar advertising bans.6 We are
now persuaded that the importance of the First Amendment issue, as
well the suggested relevance of the Twenty-first Amendment, merits
more thorough analysis than it received when we refused to accept
jurisdiction of the Queensgate appeal. We therefore granted
certiorari. 514 U. S. ___ (1995).
Advertising has been a part of our culture throughout our history.
Even in colonial days, the public relied on "commercial speech" for
vital information about the market. Early newspapers displayed
advertisements for goods and services on their front pages, and town
criers called out prices in public squares. See J. Wood, The Story of
Advertising 21, 45-69, 85 (1958); J. Smith, Printers and Press
Freedom 49 (1988). Indeed, commercial messages played such a
central role in public life prior to the Founding that Benjamin
Franklin authored his early defense of a free press in support of his
decision to print, of all things, an advertisement for voyages to
Barbados. Franklin, An Apology for Printers, June 10, 1731,
reprinted in 2 Writings of Benjamin Franklin 172 (1907).
In accord with the role that commercial messages have long played,
the law has developed to ensure that advertising provides consumers
with accurate information about the availability of goods and
services. In the early years, the common law, and later, statutes,
served the consumers' interest in the receipt of accurate information
in the commercial market by prohibiting fraudulent and misleading
advertising. It was not until the 1970's, however, that this Court
held that the First Amendment protected the dissemination of truthful
and nonmisleading commercial messages about lawful products and
services. See generally Kozinski & Banner, The Anti-History and
Pre-History of Commercial Speech, 71 Texas L. Rev. 747 (1993).
In Bigelow v. Virginia, 421 U. S. 809 (1975), we held that it was
error to assume that commercial speech was entitled to no First
Amendment protection or that it was without value in the marketplace
of ideas. Id., at 825-826. The following Term in Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S.
748 (1976), we expanded on our holding in Bigelow and held that
the State's blanket ban on advertising the price of prescription drugs
violated the First Amendment.
Virginia Pharmacy Bd. reflected the conclusion that the same interest
that supports regulation of potentially misleading advertising, namely
the public's interest in receiving accurate commercial information,
also supports an interpretation of the First Amendment that provides
constitutional protection for the dissemination of accurate and
nonmisleading commercial messages. We explained:
"Advertising, however tasteless and excessive it sometimes may
seem, is nonetheless dissemination of information as to who is
producing and selling what product, for what reason, and at what
price. So long as we preserve a predominantly free enterprise
economy, the allocation of our resources in large measure will be
made through numerous private economic decisions. It is a matter of
public interest that those decisions, in the aggregate, be intelligent
and well informed. To this end, the free flow of commercial
information is indispensable." Id., at 765.7 The opinion further
explained that a State's paternalistic assumption that the public will
use truthful, nonmisleading commercial information unwisely cannot
justify a decision to suppress it:
"There is, of course, an alternative to this highly paternalistic
approach. That alternative is to assume that this information is not in
itself harmful, that people will perceive their own best interests if
only they are well enough informed, and that the best means to that
end is to open the channels of communication rather than to close
them. If they are truly open, nothing prevents the `professional'
pharmacist from marketing his own assertedly superior product, and
contrasting it with that of the low-cost, high-volume prescription
drug retailer. But the choice among these alternative approaches is
not ours to make or the Virginia General Assembly's. It is precisely
this kind of choice, between the dangers of suppressing information,
and the dangers of its misuse if it is freely available, that the First
Amendment makes for us." Id. at 770.
On the basis of these principles, our early cases uniformly struck
down several broadly based bans on truthful, nonmisleading
commercial speech, each of which served ends unrelated to consumer
protection.8 Indeed, one of those cases expressly likened the
rationale that Virginia Pharmacy Bd. employed to the one that Justice
Brandeis adopted in his concurrence in Whitney v. California, 274
U. S. 357 (1927). See Linmark Associates, Inc. v. Willingboro,
431 U. S. 85, 97 (1977). There, Justice Brandeis wrote, in
explaining his objection to a prohibition of political speech, that "the
remedy to be applied is more speech, not enforced silence. Only an
emergency can justify repression." Whitney, 274 U. S., at 377; see
also Carey v. Population Services Int'l, 431 U. S. 678, 701 (1977)
(applying test for suppressing political speech set forth in
Brandenburg v. Ohio, 395 U. S. 444, 447 (1969)).
At the same time, our early cases recognized that the State may
regulate some types of commercial advertising more freely than other
forms of protected speech. Specifically, we explained that the State
may require commercial messages to "appear in such a form, or
include such additional information, warnings, and disclaimers, as
are necessary to prevent its being deceptive," Virginia Pharmacy Bd.,
425 U. S., at 772, n. 24, and that it may restrict some forms of
aggressive sales practices that have the potential to exert "undue
influence" over consumers. See Bates v. State Bar of Ariz., 433 U.
S. 350, 366 (1977).
Virginia Pharmacy Bd. attributed the State's authority to impose
these regulations in part to certain "commonsense differences" that
exist between commercial messages and other types of protected
expression. 425 U. S., at 771, n. 24. Our opinion noted that the
greater "objectivity" of commercial speech justifies affording the
State more freedom to distinguish false commercial advertisements
from true ones, ibid. and that the greater "hardiness" of commercial
speech, inspired as it is by the profit motive, likely diminishes the
chilling effect that may attend its regulation, ibid.
Subsequent cases explained that the State's power to regulate
commercial transactions justifies its concomitant power to regulate
commercial speech that is "linked inextricably" to those transactions.
Friedman v. Rogers, 440 U. S. 1, 10, n. 9 (1979); Ohralik v. Ohio
State Bar Assn., 436 U. S. 447, 456 (1978) (commercial speech
"occurs in an area traditionally subject to government regulation. .
."). As one commentator has explained: "The entire commercial
speech doctrine, after all, represents an accommodation between the
right to speak and hear expression about goods and services and the
right of government to regulate the sales of such goods and
services." L. Tribe, American Constitutional Law Section 12-15, p.
903 (2d ed. 1988). Nevertheless, as we explained in Linmark, the
State retains less regulatory authority when its commercial speech
restrictions strike at "the substance of the information communicated"
rather than the "commercial aspect of [it]with offerors communicating
offers to offerees." See Linmark 431 U. S., at 96; Carey v.
Population Services Int'l, 431 U. S. 678, 701, n. 28 (1977).
In Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of
N. Y., 447 U. S. 557 (1980), we took stock of our developing
commercial speech jurisprudence. In that case, we considered a
regulation "completely" banning all promotional advertising by
electric utilities. Ibid. Our decision acknowledged the special
features of commercial speech but identified the serious First
Amendment concerns that attend blanket advertising prohibitions that
do not protect consumers from commercial harms.
Five Members of the Court recognized that the state interest in the
conservation of energy was substantial, and that there was "an
immediate connection between advertising and demand for
electricity." Id., at 569. Nevertheless, they concluded that the
regulation was invalid because the Commission had failed to make a
showing that a more limited speech regulation would not have
adequately served the State's interest. Id., at 571.9
In reaching its conclusion, the majority explained that although the
special nature of commercial speech may require less than strict
review of its regulation, special concerns arise from "regulations that
entirely suppress commercial speech in order to pursue a nonspeech-
related policy." Id., at 566, n. 9. In those circumstances, "a ban on
speech could screen from public view the underlying governmental
policy." Ibid. As a result, the Court concluded that "special care"
should attend the review of such blanket bans, and it pointedly
remarked that "in recent years this Court has not approved a blanket
ban on commercial speech unless the speech itself was flawed in
some way, either because it was deceptive or related to unlawful
activity." Ibid.10
As our review of the case law reveals, Rhode Island errs in
concluding that all commercial speech regulations are subject to a
similar form of constitutional review simply because they target a
similar category of expression. The mere fact that messages propose
commercial transactions does not in and of itself dictate the
constitutional analysis that should apply to decisions to suppress
them. See Rubin v. Coors Brewing Co., 514 U. S., at ___-___
(slip op., at 1-3) (STEVENS, J., concurring in judgment).
When a State regulates commercial messages to protect consumers
from misleading, deceptive, or aggressive sales practices, or requires
the disclosure of beneficial consumer information, the purpose of its
regulation is consistent with the reasons for according constitutional
protection to commercial speech and therefore justifies less than strict
review. However, when a State entirely prohibits the dissemination
of truthful, nonmisleading commercial messages for reasons
unrelated to the preservation of a fair bargaining process, there is far
less reason to depart from the rigorous review that the First
Amendment generally demands.
Sound reasons justify reviewing the latter type of commercial speech
regulation more carefully. Most obviously, complete speech bans,
unlike content-neutral restrictions on the time, place, or manner of
expression, see Kovacs v. Cooper, 336 U. S. 77, 89 (1949), are
particularly dangerous because they all but foreclose alternative
means of disseminating certain information.
Our commercial speech cases have recognized the dangers that attend
governmental attempts to single out certain messages for
suppression. For example, in Linmark, 431 U. S., at 92-94, we
concluded that a ban on "For Sale" signs was "content based" and
failed to leave open "satisfactory" alternative channels of
communication; see also Virginia Pharmacy Bd., 425 U. S., at 771.
Moreover, last Term we upheld a 30-day prohibition against a certain
form of legal solicitation largely because it left so many channels of
communication open to Florida lawyers. Florida Bar v. Went For It,
Inc., 515 U. S. ___, ___-___ (1995) (slip op., at 15-16).11
The special dangers that attend complete bans on truthful,
nonmisleading commercial speech cannot be explained away by
appeals to the "commonsense distinctions" that exist between
commercial and noncommercial speech. Virginia Pharmacy Bd., 425
U. S., at 771, n. 24. Regulations that suppress the truth are no less
troubling because they target objectively verifiable information, nor
are they less effective because they aim at durable messages. As a
result, neither the "greater objectivity" nor the "greater hardiness" of
truthful, nonmisleading commercial speech justifies reviewing its
complete suppression with added deference. Ibid.
It is the State's interest in protecting consumers from "commercial
harms" that provides "the typical reason why commercial speech can
be subject to greater governmental regulation than noncommercial
speech." Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 426
(1993). Yet bans that target truthful, nonmisleading commercial
messages rarely protect consumers from such harms.12 Instead,
such bans often serve only to obscure an "underlying governmental
policy" that could be implemented without regulating speech. Central
Hudson, 447 U. S., at 566, n. 9. In this way, these commercial
speech bans not only hinder consumer choice, but also impede debate
over central issues of public policy. See id., at 575 (Blackmun, J.,
concurring in judgment).13
Precisely because bans against truthful, nonmisleading commercial
speech rarely seek to protect consumers from either deception or
overreaching, they usually rest solely on the offensive assumption
that the public will respond "irrationally" to the truth. Linmark, 431
U. S., at 96. The First Amendment directs us to be especially
skeptical of regulations that seek to keep people in the dark for what
the government perceives to be their own good. That teaching
applies equally to state attempts to deprive consumers of accurate
information about their chosen products:
"The commercial market-place, like other spheres of our social and
cultural life, provides a forum where ideas and information flourish.
Some of the ideas and information are vital, some of slight worth.
But the general rule is that the speaker and the audience, not the
government, assess the value of the information presented. Thus,
even a communication that does no more than propose a commercial
transaction is entitled to the coverage of the First Amendment. See
Virginia State Bd. of Pharmacy, supra, at 762." Edenfield v. Fane,
507 U. S. 761, 767 (1993).
See also Linmark, 431 U. S. at 96 (1977); Rubin v. Coors Brewing
Co., 514 U. S., at ___ (STEVENS, J., concurring in judgment);
Tribe, American Constitutional Law Section 12-2, at 790, and n. 11.
In this case, there is no question that Rhode Island's price advertising
ban constitutes a blanket prohibition against truthful, nonmisleading
speech about a lawful product. There is also no question that the ban
serves an end unrelated to consumer protection. Accordingly, we
must review the price advertising ban with "special care," Central
Hudson, 447 U. S., at 566, n. 9, mindful that speech prohibitions of
this type rarely survive constitutional review. Ibid.
The State argues that the price advertising prohibition should
nevertheless be upheld because it directly advances the State's
substantial interest in promoting temperance, and because it is no
more extensive than necessary. Cf. Central Hudson, 447 U. S., at
566. Although there is some confusion as to what Rhode Island
means by temperance, we assume that the State asserts an interest in
reducing alcohol consumption.14
In evaluating the ban's effectiveness in advancing the State's interest,
we note that a commercial speech regulation "may not be sustained if
it provides only ineffective or remote support for the government's
purpose." Central Hudson, 447 U. S., at 564. For that reason, the
State bears the burden of showing not merely that its regulation will
advance its interest, but also that it will do so "to a material degree."
Edenfield, 507 U. S., at 771; see also Rubin v. Coors Brewing Co.,
514 U. S., at ___ (slip op., at 8-9). The need for the State to make
such a showing is particularly great given the drastic nature of its
chosen means-the wholesale suppression of truthful, nonmisleading
information. Accordingly, we must determine whether the State has
shown that the price advertising ban will significantly reduce alcohol
consumption.
We can agree that common sense supports the conclusion that a
prohibition against price advertising, like a collusive agreement
among competitors to refrain from such advertising,15 will tend to
mitigate competition and maintain prices at a higher level than would
prevail in a completely free market. Despite the absence of proof on
the point, we can even agree with the State's contention that it is
reasonable to assume that demand, and hence consumption
throughout the market, is somewhat lower whenever a higher,
noncompetitive price level prevails. However, without any findings
of fact, or indeed any evidentiary support whatsoever, we cannot
agree with the assertion that the price advertising ban will
significantly advance the State's interest in promoting temperance.
Although the record suggests that the price advertising ban may have
some impact on the purchasing patterns of temperate drinkers of
modest means, 829 F. Supp., at 546, the State has presented no
evidence to suggest that its speech prohibition will significantly
reduce market-wide consumption.16 Indeed, the District Court's
considered and uncontradicted finding on this point is directly to the
contrary. Id., at 549.17 Moreover, the evidence suggests that the
abusive drinker will probably not be deterred by a marginal price
increase, and that the true alcoholic may simply reduce his purchases
of other necessities.
In addition, as the District Court noted, the State has not identified
what price level would lead to a significant reduction in alcohol
consumption, nor has it identified the amount that it believes prices
would decrease without the ban. Ibid. Thus, the State's own
showing reveals that any connection between the ban and a
significant change in alcohol consumption would be purely
fortuitous.
As is evident, any conclusion that elimination of the ban would
significantly increase alcohol consumption would require us to
engage in the sort of "speculation or conjecture" that is an
unacceptable means of demonstrating that a restriction on commercial
speech directly advances the State's asserted interest. Edenfield, 507
U. S., at 770.18 Such speculation certainly does not suffice when
the State takes aim at accurate commercial information for
paternalistic ends.
The State also cannot satisfy the requirement that its restriction on
speech be no more extensive than necessary. It is perfectly obvious
that alternative forms of regulation that would not involve any
restriction on speech would be more likely to achieve the State's goal
of promoting temperance. As the State's own expert conceded,
higher prices can be maintained either by direct regulation or by
increased taxation. 829 F. Supp., at 549. Per capita purchases
could be limited as is the case with prescription drugs. Even
educational campaigns focused on the problems of excessive, or even
moderate, drinking might prove to be more effective.
As a result, even under the less than strict standard that generally
applies in commercial speech cases, the State has failed to establish a
"reasonable fit" between its abridgment of speech and its temperance
goal. Board of Trustees, State Univ. of N. Y. v. Fox, 492 U. S.
469, 480 (1989); see also Rubin v. Coors Brewing Co., 514 U. S.,
at ___ (slip op., at 15) (explaining that defects in a federal ban on
alcohol advertising are "further highlighted by the availability of
alternatives that would prove less intrusive to the First Amendment's
protections for commercial speech"); Linmark, 431 U. S., at 97
(suggesting that the State use financial incentives or counter-speech,
rather than speech restrictions, to advance its interests). It necessarily
follows that the price advertising ban cannot survive the more
stringent constitutional review that Central Hudson itself concluded
was appropriate for the complete suppression of truthful,
nonmisleading commercial speech. Central Hudson, 447 U. S., at
566, n. 9.
The State responds by arguing that it merely exercised appropriate
"legislative judgment" in determining that a price advertising ban
would best promote temperance. Relying on the Central Hudson
analysis set forth in Posadas de Puerto Rico Associates v. Tourism
Co. of P. R., 478 U. S. 328 (1986), and United States v. Edge
Broadcasting Co., 509 U. S. ___ (1993), Rhode Island first argues
that, because expert opinions as to the effectiveness of the price
advertising ban "go both ways," the Court of Appeals correctly
concluded that the ban constituted a "reasonable choice" by the
legislature. 39 F. 3d, at 7. The State next contends that precedent
requires us to give particular deference to that legislative choice
because the State could, if it chose, ban the sale of alcoholic
beverages outright. See Posadas, 478 U. S., at 345-346. Finally,
the State argues that deference is appropriate because alcoholic
beverages are so-called "vice" products. See Edge, 509 U. S. ___
(slip op., at ___); Posadas, 478 U. S., at 346-347. We consider
each of these contentions in turn.
The State's first argument fails to justify the speech prohibition at
issue. Our commercial speech cases recognize some room for the
exercise of legislative judgment. See Metromedia, Inc. v. San
Diego, 453 U. S. 490, 507-508 (1981). However, Rhode Island
errs in concluding that Edge and Posadas establish the degree of
deference that its decision to impose a price advertising ban warrants.
In Edge, we upheld a federal statute that permitted only those
broadcasters located in States that had legalized lotteries to air lottery
advertising. The statute was designed to regulate advertising about
an activity that had been deemed illegal in the jurisdiction in which
the broadcaster was located. 509 U. S., at ___ (slip op., at 14-15).
Here, by contrast, the commercial speech ban targets information
about entirely lawful behavior.
Posadas is more directly relevant. There, a five-Member majority
held that, under the Central Hudson test, it was "up to the legislature"
to choose to reduce gambling by suppressing in-state casino
advertising rather than engaging in educational speech. Posadas, 478
U. S., at 344. Rhode Island argues that this logic demonstrates the
constitutionality of its own decision to ban price advertising in lieu of
raising taxes or employing some other less speech-restrictive means
of promoting temperance.
The reasoning in Posadas does support the State's argument, but, on
reflection, we are now persuaded that Posadas erroneously
performed the First Amendment analysis. The casino advertising ban
was designed to keep truthful, nonmisleading speech from members
of the public for fear that they would be more likely to gamble if they
received it. As a result, the advertising ban served to shield the
State's antigambling policy from the public scrutiny that more direct,
nonspeech regulation would draw. See Posadas, 478 U. S., at 351
(Brennan, J., dissenting).
Given our longstanding hostility to commercial speech regulation of
this type, Posadas clearly erred in concluding that it was "up to the
legislature" to choose suppression over a less speech-restrictive
policy. The Posadas majority's conclusion on that point cannot be
reconciled with the unbroken line of prior cases striking down
similarly broad regulations on truthful, nonmisleading advertising
when non-speech-related alternatives were available. See Posadas,
478 U. S., at 350 (Brennan, J., dissenting) (listing cases); Kurland,
Posadas de Puerto Rico v. Tourism Company: "`Twas Strange,
`Twas Passing Strange; `Twas Pitiful, `Twas Wondrous Pitiful,"
1986 S. Ct. Rev. 1, 12-15.
Because the 5-to-4 decision in Posadas marked such a sharp break
from our prior precedent, and because it concerned a constitutional
question about which this Court is the final arbiter, we decline to give
force to its highly deferential approach. Instead, in keeping with
our prior holdings, we conclude that a state legislature does not have
the broad discretion to suppress truthful, nonmisleading information
for paternalistic purposes that the Posadas majority was willing to
tolerate. As we explained in Virginia Pharmacy Bd., "[i]t is precisely
this kind of choice, between the dangers of suppressing information,
and the dangers of its misuse if it is freely available, that the First
Amendment makes for us." 425 U. S., at 770.
We also cannot accept the State's second contention, which is
premised entirely on the "greater-includes-the-lesser" reasoning
endorsed toward the end of the majority's opinion in Posadas.
There, the majority stated that "the greater power to completely ban
casino gambling necessarily includes the lesser power to ban
advertising of casino gambling." 478 U. S., at 345-346. It went on
to state that "because the government could have enacted a wholesale
prohibition of [casino gambling] it is permissible for the government
to take the less intrusive step of allowing the conduct, but reducing
the demand through restrictions on advertising." Id., at 346. The
majority concluded that it would "surely be a strange constitutional
doctrine which would concede to the legislature the authority to
totally ban a product or activity, but deny to the legislature the
authority to forbid the stimulation of demand for the product or
activity through advertising on behalf of those who would profit
from such increased demand." Ibid. On the basis of these
statements, the State reasons that its undisputed authority to ban
alcoholic beverages must include the power to restrict advertisements
offering them for sale.
In Rubin v. Coors Brewing Co., 514 U. S. ___ (1995), the United
States advanced a similar argument as a basis for supporting a
statutory prohibition against revealing the alcoholic content of malt
beverages on product labels. We rejected the argument, noting that
the statement in the Posadas opinion was made only after the majority
had concluded that the Puerto Rican regulation "survived the Central
Hudson test." 514 U. S., at ___, n. 2 (slip op., at 5, n. 2). Further
consideration persuades us that the "greater-includes-the-lesser"
argument should be rejected for the additional and more important
reason that it is inconsistent with both logic and well-settled doctrine.
Although we do not dispute the proposition that greater powers
include lesser ones, we fail to see how that syllogism requires the
conclusion that the State's power to regulate commercial activity is
"greater" than its power to ban truthful, nonmisleading commercial
speech. Contrary to the assumption made in Posadas, we think it
quite clear that banning speech may sometimes prove far more
intrusive than banning conduct. As a venerable proverb teaches, it
may prove more injurious to prevent people from teaching others
how to fish than to prevent fish from being sold.19 Similarly, a local
ordinance banning bicycle lessons may curtail freedom far more than
one that prohibits bicycle riding within city limits. In short, we reject
the assumption that words are necessarily less vital to freedom than
actions, or that logic somehow proves that the power to prohibit an
activity is necessarily "greater" than the power to suppress speech
about it.
As a matter of First Amendment doctrine, the Posadas syllogism is
even less defensible. The text of the First Amendment makes clear
that the Constitution presumes that attempts to regulate speech are
more dangerous than attempts to regulate conduct. That presumption
accords with the essential role that the free flow of information plays
in a democratic society. As a result, the First Amendment directs that
government may not suppress speech as easily as it may suppress
conduct, and that speech restrictions cannot be treated as simply
another means that the government may use to achieve its ends.
These basic First Amendment principles clearly apply to commercial
speech; indeed, the Posadas majority impliedly conceded as much by
applying the Central Hudson test. Thus, it is no answer that
commercial speech concerns products and services that the
government may freely regulate. Our decisions from Virginia
Pharmacy Bd. on have made plain that a State's regulation of the sale
of goods differs in kind from a State's regulation of accurate
information about those goods. The distinction that our cases have
consistently drawn between these two types of governmental action
is fundamentally incompatible with the absolutist view that the State
may ban commercial speech simply because it may constitutionally
prohibit the underlying conduct.20
That the State has chosen to license its liquor retailers does not
change the analysis. Even though government is under no obligation
to provide a person, or the public, a particular benefit, it does not
follow that conferral of the benefit may be conditioned on the
surrender of a constitutional right. See, e.g., Frost & Frost Trucking
Co. v. Railroad Comm'n of Cal., 271 U. S. 583, 594 (1926). In
Perry v. Sindermann, 408 U. S. 593 (1972), relying on a host of
cases applying that principle during the preceding quarter-century,
the Court explained that government "may not deny a benefit to a
person on a basis that infringes his constitutionally protected
interests-especially his interest in freedom of speech." Id., at 597.
That teaching clearly applies to state attempts to regulate commercial
speech, as our cases striking down bans on truthful, nonmisleading
speech by licensed professionals attest. See, e.g., Bates v. State Bar
of Ariz., 433 U. S., at 355; Virginia Bd. of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U. S. 748 (1976).
Thus, just as it is perfectly clear that Rhode Island could not ban all
obscene liquor ads except those that advocated temperance, we think
it equally clear that its power to ban the sale of liquor entirely does
not include a power to censor all advertisements that contain accurate
and nonmisleading information about the price of the product. As the
entire Court apparently now agrees, the statements in the Posadas
opinion on which Rhode Island relies are no longer persuasive.
Finally, we find unpersuasive the State's contention that, under
Posadas and Edge, the price advertising ban should be upheld
because it targets commercial speech that pertains to a "vice" activity.
The appellees premise their request for a so-called "vice" exception to
our commercial speech doctrine on language in Edge which
characterized gambling as a "vice". Edge, 507 U. S., at ___ (slip
op., at ___); see also Posadas, 478 U. S., at 346-347. The
respondents misread our precedent. Our decision last Term striking
down an alcohol-related advertising restriction effectively rejected the
very contention respondents now make. See Rubin v. Coors
Brewing Co., 514 U. S., at ___, ___, n. 2.
Moreover, the scope of any "vice" exception to the protection
afforded by the First Amendment would be difficult, if not
impossible, to define. Almost any product that poses some threat to
public health or public morals might reasonably be characterized by a
state legislature as relating to "vice activity". Such characterization,
however, is anomalous when applied to products such as alcoholic
beverages, lottery tickets, or playing cards, that may be lawfully
purchased on the open market. The recognition of such an exception
would also have the unfortunate consequence of either allowing state
legislatures to justify censorship by the simple expedient of placing
the "vice" label on selected lawful activities, or requiring the federal
courts to establish a federal common law of vice. See Kurland, 1986
S. Ct. Rev., at 15. For these reasons, a "vice" label that is
unaccompanied by a corresponding prohibition against the
commercial behavior at issue fails to provide a principled justification
for the regulation of commercial speech about that activity.
From 1919 until 1933, the Eighteenth Amendment to the Constitution
totally prohibited "the manufacture, sale, or transportation of
intoxicating liquors" in the United States and its territories. Section 1
of the Twenty-first Amendment repealed that prohibition, and Section
2 delegated to the several States the power to prohibit commerce in,
or the use of, alcoholic beverages.21 The States' regulatory power
over this segment of commerce is therefore largely "unfettered by the
Commerce Clause." Ziffrin, Inc. v. Reeves, 308 U. S. 132, 138
(1939).
As is clear, the text of the Twenty-first Amendment supports the
view that, while it grants the States authority over commerce that
might otherwise be reserved to the Federal Government, it places no
limit whatsoever on other constitutional provisions. Nevertheless,
Rhode Island argues, and the Court of Appeals agreed, that in this
case the Twenty-first Amendment tilts the First Amendment analysis
in the State's favor. See 39 F. 3d, at 7-8.
In reaching its conclusion, the Court of Appeals relied on our
decision in California v. LaRue, 409 U. S. 109 (1972).22 In
LaRue, five Members of the Court relied on the Twenty-first
Amendment to buttress the conclusion that the First Amendment did
not invalidate California's prohibition of certain grossly sexual
exhibitions in premises licensed to serve alcoholic beverages.
Specifically, the opinion stated that the Twenty-first Amendment
required that the prohibition be given an added presumption in favor
of its validity. See id., at 118-119. We are now persuaded that the
Court's analysis in LaRue would have led to precisely the same result
if it had placed no reliance on the Twenty-first Amendment.
Entirely apart from the Twenty-first Amendment, the State has ample
power to prohibit the sale of alcoholic beverages in inappropriate
locations. Moreover, in subsequent cases the Court has recognized
that the States' inherent police powers provide ample authority to
restrict the kind of "bacchanalian revelries" described in the LaRue
opinion regardless of whether alcoholic beverages are involved. Id.,
at 118; see, e.g., Young v. American Mini Theatres, Inc., 427 U. S.
50 (1976); Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991). As
we recently noted: "LaRue did not involve commercial speech about
alcohol, but instead concerned the regulation of nude dancing in
places where alcohol was served." Rubin v. Coors Brewing Co.,
514 U. S., at ___, n. 2 (slip op., at 4, n. 2).
Without questioning the holding in LaRue, we now disavow its
reasoning insofar as it relied on the Twenty-first Amendment. As we
explained in a case decided more than a decade after LaRue, although
the Twenty-first Amendment limits the effect of the dormant
Commerce Clause on a State's regulatory power over the delivery or
use of intoxicating beverages within its borders, "the Amendment
does not license the States to ignore their obligations under other
provisions of the Constitution." Capital Cities Cable, Inc. v. Crisp,
467 U. S. 691, 712 (1984). That general conclusion reflects our
specific holdings that the Twenty-first Amendment does not in any
way diminish the force of the Supremacy Clause, id., at 712;
California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc.,
445 U. S. 97, 112-114 (1980), the Establishment Clause, Larkin v.
Grendel's Den, Inc., 459 U. S. 116, 122, n. 5 (1982), or the Equal
Protection Clause, Craig v. Boren, 429 U. S. 190, 209 (1976). We
see no reason why the First Amendment should not also be included
in that list. Accordingly, we now hold that the Twenty-first
Amendment does not qualify the constitutional prohibition against
laws abridging the freedom of speech embodied in the First
Amendment. The Twenty-first Amendment, therefore, cannot save
Rhode Island's ban on liquor price advertising.
Because Rhode Island has failed to carry its heavy burden of
justifying its complete ban on price advertising, we conclude that R.
I. Gen. Laws Sections 3-8-7 and 3-8-8.1, as well as Regulation 32
of the Rhode Island Liquor Control Administration, abridge speech
in violation of the First Amendment as made applicable to the States
by the Due Process Clause of the Fourteenth Amendment. The
judgment of the Court of Appeals is therefore reversed.
It is so ordered.
______________________________________________________
__
SUPREME COURT OF THE UNITED STATES
No. 94-1140
44 LIQUORMART, INC. AND PEOPLES SUPER LIQUOR
STORES, INC., PETITIONERS
v.
RHODE ISLAND AND RHODE ISLAND
LIQUOR STORES ASSOCIATION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FIRST CIRCUIT
[May 13, 1996]
JUSTICE SCALIA, concurring in part and concurring in the
judgment.
I share JUSTICE THOMAS's discomfort with the Central Hudson
test, which seems to me to have nothing more than policy intuition to
support it. I also share JUSTICE STEVENS' aversion towards
paternalistic governmental policies that prevent men and women from
hearing facts that might not be good for them. On the other hand, it
would also be paternalism for us to prevent the people of the States
from enacting laws that we consider paternalistic, unless we have
good reason to believe that the Constitution itself forbids them. I will
take my guidance as to what the Constitution forbids, with regard to
a text as indeterminate as the First Amendment's preservation of "the
freedom of speech," and where the core offense of suppressing
particular political ideas is not at issue, from the long accepted
practices of the American people. See McIntyre v. Ohio Elections
Comm'n, 514 U. S. ___, ___ (1995) (SCALIA, J., dissenting).
The briefs and arguments of the parties in the present case provide no
illumination on that point; understandably so, since both sides
accepted Central Hudson. The amicus brief on behalf of the
American Advertising Federation et al. did examine various
expressions of view at the time the First Amendment was adopted;
they are consistent with First Amendment protection for commercial
speech, but certainly not dispositive. I consider more relevant the
state legislative practices prevalent at the time the First Amendment
was adopted, since almost all of the States had free-speech
constitutional guarantees of their own, whose meaning was not likely
to have been different from the federal constitutional provision
derived from them. Perhaps more relevant still are the state legislative
practices at the time the Fourteenth Amendment was adopted, since it
is most improbable that that adoption was meant to overturn any
existing national consensus regarding free speech. Indeed, it is rare
that any nationwide practice would develop contrary to a proper
understanding of the First Amendment itself-for which reason I think
also relevant any national consensus that had formed regarding state
regulation of advertising after the Fourteenth Amendment, and before
this Court's entry into the field. The parties and their amici provide
no evidence on these points.
Since I do not believe we have before us the wherewithal to declare
Central Hudson wrong-or at least the wherewithal to say what ought
to replace it-I must resolve this case in accord with our existing
jurisprudence, which all except JUSTICE THOMAS agree would
prohibit the challenged regulation. I am not disposed to develop new
law, or reinforce old, on this issue, and accordingly I merely concur
in the judgment of the Court. I believe, however, that JUSTICE
STEVENS' treatment of the application of the Twenty-First
Amendment to this case is correct, and accordingly join Parts I, II,
VII, and VIII of JUSTICE STEVENS' opinion.
______________________________________________________
__
SUPREME COURT OF THE UNITED STATES
No. 94-1140
44 LIQUORMART, INC. AND PEOPLES SUPER LIQUOR
STORES, INC., PETITIONERS
v.
RHODE ISLAND AND RHODE ISLAND
LIQUOR STORES ASSOCIATION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FIRST CIRCUIT
[May 13, 1996]
JUSTICE THOMAS, concurring in Parts I, II, VI, and VII, and
concurring in the judgment.
In cases such as this, in which the government's asserted interest is
to keep legal users of a product or service ignorant in order to
manipulate their choices in the marketplace, the balancing test
adopted in Central Hudson Gas & Elec. Corp. v. Public Serv.
Comm'n of N. Y., 447 U. S. 557 (1980), should not be applied, in
my view. Rather, such an "interest" is per se illegitimate and can no
more justify regulation of "commercial" speech than it can justify
regulation of "noncommercial" speech.
In Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U. S. 748, 762 (1976), this Court held that
speech that does "`no more than propose a commercial transaction'"
was protected by the First Amendment, and struck down a ban on
price advertising regarding prescription drugs. The Court asserted
that a "particular consumer's interest in the free flow of commercial
information" may be as keen as, or keener than, his interest in "the
day's most urgent political debate," id., at 763, and that "the proper
allocation of resources" in our free enterprise system requires that
consumer decisions be "intelligent and well informed." Id., at 765.
The Court also explained that, unless consumers are kept informed
about the operations of the free market system, they cannot form
"intelligent opinions as to how that system ought to be regulated or
altered." Ibid. See also id., at 765-766, nn. 19-20.1 The Court
sharply rebuffed the State's argument that consumers would make
irresponsible choices if they were able to choose between higher
priced but higher quality pharmaceuticals accompanied by high
quality prescription monitoring services resulting from a "stable
pharmacist-customer relationshi[p]," id., at 768, on the one hand,
and cheaper but lower quality pharmaceuticals unaccompanied by
such services, on the other:
"[T]he State's protectiveness of its citizens rests in large measure on
the advantages of their being kept in ignorance. The advertising ban
does not directly affect professional standards one way or the other.
It affects them only through the reactions it is assumed people will
have to the free flow of drug price information.
"There is, of course, an alternative to this highly paternalistic
approach. That alternative is to assume that information is not in
itself harmful, that people will perceive their own best interests, if
only they are well enough informed, and that the best means to that
end is to open the channels of communication rather than to close
them. . . . It is precisely this kind of choice, between the dangers of
suppressing information, and the dangers of its misuse if it is freely
available, that the First Amendment makes for us. . . . Virginia is
free to require whatever professional standards it wishes of its
pharmacists; it may subsidize them or protect them from competition
in other ways. But it may not do so by keeping the public in
ignorance of the entirely lawful terms that competing pharmacists are
offering. In this sense, the justifications Virginia has offered for
suppressing the flow of prescription drug price information, far from
persuading us that the flow is not protected by the First Amendment,
have reinforced our view that it is." Id., at 769-770 (citation
omitted).
The Court opined that false or misleading advertising was not
protected, on the grounds that the accuracy of advertising claims may
be more readily verifiable than is the accuracy of political or other
claims, and that "commercial" speech is made more durable by its
profit motive. Id., at 771, and n. 24. The Court also made clear that
it did not envision protection for advertising that proposes an illegal
transaction. Id., at 772-773 (distinguishing Pittsburgh Press Co. v.
Human Relations Comm'n, 413 U. S. 376 (1973)).
In case after case following Virginia Pharmacy Bd., the Court, and
individual Members of the Court, have continued to stress the
importance of free dissemination of information about commercial
choices in a market economy; the antipaternalistic premises of the
First Amendment; the impropriety of manipulating consumer choices
or public opinion through the suppression of accurate "commercial"
information; the near impossibility of severing "commercial" speech
from speech necessary to democratic decisionmaking; and the
dangers of permitting the government to do covertly what it might not
have been able to muster the political support to do openly.2
In other decisions, however, the Court has appeared to accept the
legitimacy of laws that suppress information in order to manipulate
the choices of consumers-so long as the government could show that
the manipulation was in fact successful. Central Hudson Gas &
Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557
(1980), was the first decision to clearly embrace this position,
although the Court applied a very strict overbreadth analysis to strike
down the advertising ban at issue.3 In two other decisions, Posadas
de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328
(1986), and United States v. Edge Broadcasting, 509 U. S. 418
(1963), the Court simply presumed that advertising of a product or
service leads to increased consumption; since, as in Central Hudson,
the Court saw nothing impermissible in the government's
suppressing information in order to discourage consumption, it
upheld the advertising restrictions in those cases. Posadas, supra, at
341- 342; Edge, supra, at 425, 433-434.
The Court has at times appeared to assume that "commercial" speech
could be censored in a variety of ways for any of a variety of reasons
because, as was said without clear rationale in some post-Virginia
Pharmacy Bd. cases, such speech was in a "subordinate position in
the scale of First Amendment values," Ohralik v. Ohio State Bar
Assn., 436 U. S. 447, 456 (1978); Board of Trustees of State Univ.
of N. Y. v. Fox, 492 U. S. 469, 478 (1989); Florida Bar v. Went
For It, Inc., 515 U. S. ___, ___ (1995) (slip op., at 4-5), or of "less
constitutional moment," Central Hudson, supra, at 562-563, n. 5.
But see Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 418-
419 (1993) (rejecting this assertion); id., at 431 (Blackmun, J.,
concurring) (same). I do not see a philosophical or historical basis
for asserting that "commercial" speech is of "lower value" than
"noncommercial" speech. Indeed, some historical materials suggest
to the contrary. See, e.g., ante, at 8 (citing Franklin's Apology for
Printers); Ex parte Jackson, 96 U. S. 727, 733 (1878) (dictum that
Congress could not, consistent with freedom of the press, prevent
the circulation of lottery advertising through methods other than the
United States mail); see also In re Rapier, 143 U. S. 110, 134-135
(1892) (continuing to assume that freedom of the press prevents
Congress from prohibiting circulation of newspapers containing
lottery advertisements); Lewis Publishing Co. v. Morgan, 229 U. S.
288, 315 (1913) (same); see generally Brief for American
Advertising Federation et al. as Amici Curiae 12-24 (citing authorities
for propositions that commercial activity and advertising were
integral to life in colonial America and that Framers' political
philosophy equated liberty and property and did not distinguish
between commercial and noncommercial messages). Nor do I
believe that the only explanations that the Court has ever advanced
for treating "commercial" speech differently from other speech can
justify restricting "commercial" speech in order to keep information
from legal purchasers so as to thwart what would otherwise be their
choices in the marketplace.4
I do not join the principal opinion's application of the Central
Hudson balancing test because I do not believe that such a test should
be applied to a restriction of "commercial" speech, at least when, as
here, the asserted interest is one that is to be achieved through
keeping would-be recipients of the speech in the dark.5 Application
of the advancement-of-state-interest prong of Central Hudson makes
little sense to me in such circumstances. Faulting the State for failing
to show that its price advertising ban decreases alcohol consumption
"significantly," as JUSTICE STEVENS does, ante, at 19 (emphasis
omitted), seems to imply that if the State had been more successful at
keeping consumers ignorant and thereby decreasing their
consumption, then the restriction might have been upheld. This
contradicts Virginia Pharmacy Bd.'s rationale for protecting
"commercial" speech in the first instance.
Both JUSTICE STEVENS and JUSTICE O'CONNOR appear to
adopt a stricter, more categorical interpretation of the fourth prong of
Central Hudson than that suggested in some of our other opinions,6
one that could, as a practical matter, go a long way toward the
position I take. The State argues that keeping information about
lower priced alcohol from consumers will tend to raise the total price
of alcohol to consumers (defined as money price plus the costs of
searching out lower priced alcohol, see Brief for Respondents 23),
thus discouraging alcohol consumption. In their application of the
fourth prong, both JUSTICE STEVENS and JUSTICE O'CONNOR
hold that because the State can ban the sale of lower priced alcohol
altogether by instituting minimum prices or levying taxes, it cannot
ban advertising regarding lower priced liquor. Although the tenor of
JUSTICE O'CONNOR's opinion (and, to a lesser extent, that of
JUSTICE STEVENS's opinion) might suggest that this is just
another routine case-by-case application of Central Hudson's fourth
prong, the Court's holding will in fact be quite sweeping if applied
consistently in future cases. The opinions would appear to commit
the courts to striking down restrictions on speech whenever a direct
regulation (i.e., a regulation involving no restriction on speech
regarding lawful activity at all) would be an equally effective method
of dampening demand by legal users. But it would seem that directly
banning a product (or rationing it, taxing it, controlling its price, or
otherwise restricting its sale in specific ways) would virtually always
be at least as effective in discouraging consumption as merely
restricting advertising regarding the product would be, and thus
virtually all restrictions with such a purpose would fail the fourth
prong of the Central Hudson test. This would be so even if the direct
regulation is, in one sense, more restrictive of conduct generally. In
this case, for example, adoption of minimum prices or taxes will
mean that those who, under the current legal system, would have
happened across cheap liquor or would have sought it out, will be
forced to pay more. Similarly, a State seeking to discourage liquor
sales would have to ban sales by convenience stores rather than
banning convenience store liquor advertising; it would have to ban
liquor sales after midnight, rather than banning advertising by late-
night liquor sellers; and so on.
The upshot of the application of the fourth prong in the opinions of
JUSTICE STEVENS and of JUSTICE O'CONNOR seems to be that
the government may not, for the purpose of keeping would-be
consumers ignorant and thus decreasing demand, restrict advertising
regarding commercial transactions-or at least that it may not restrict
advertising regarding commercial transactions except to the extent
that it outlaws or otherwise directly restricts the same transactions
within its own borders.7 I welcome this outcome; but, rather than
"applying" the fourth prong of Central Hudson to reach the inevitable
result that all or most such advertising restrictions must be struck
down, I would adhere to the doctrine adopted in Virginia Pharmacy
Bd. and in Justice Blackmun's Central Hudson concurrence, that all
attempts to dissuade legal choices by citizens by keeping them
ignorant are impermissible.
Although the Court took a sudden turn away from Virginia Pharmacy
Bd. in Central Hudson, it has never explained why manipulating the
choices of consumers by keeping them ignorant is more legitimate
when the ignorance is maintained through suppression of
"commercial" speech than when the same ignorance is maintained
through suppression of "noncommercial" speech. The courts,
including this Court, have found the Central Hudson "test" to be, as
a general matter, very difficult to apply with any uniformity.8 This
may result in part from the inherently nondeterminative nature of a
case-by-case balancing "test" unaccompanied by any categorical
rules, and the consequent likelihood that individual judicial
preferences will govern application of the test.9 Moreover, the
second prong of Central Hudson, as applied to the facts of that case
and to those here, apparently requires judges to delineate those
situations in which citizens cannot be trusted with information, and
invites judges to decide whether they themselves think that
consumption of a product is harmful enough that it should be
discouraged.10 In my view, the Central Hudson test asks the courts
to weigh incommensurables- the value of knowledge versus the value
of ignorance-and to apply contradictory premises-that informed
adults are the best judges of their own interests, and that they are not.
Rather than continuing to apply a test that makes no sense to me
when the asserted state interest is of the type involved here, I would
return to the reasoning and holding of Virginia Pharmacy Bd. Under
that decision, these restrictions fall.
______________________________________________________
__
SUPREME COURT OF THE UNITED STATES
No. 94-1140
44 LIQUORMART, INC. AND PEOPLES SUPER LIQUOR
STORES, INC., PETITIONERS
v.
RHODE ISLAND AND RHODE ISLAND
LIQUOR STORES ASSOCIATION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FIRST CIRCUIT
[May 13, 1996]
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE,
JUSTICE SOUTER, and JUSTICE BREYER join, concurring in the
judgment.
Rhode Island prohibits advertisement of the retail price of alcoholic
beverages, except at the place of sale. The State's only asserted
justification for this ban is that it promotes temperance by increasing
the cost of alcoholic beverages. Brief for Respondent State of Rhode
Island 22. I agree with the Court that Rhode Island's price-
advertising ban is invalid. I would resolve this case more narrowly,
however, by applying our established Central Hudson test to
determine whether this commercial-speech regulation survives First
Amendment scrutiny.
Under that test, we first determine whether the speech at issue
concerns lawful activity and is not misleading, and whether the
asserted governmental interest is substantial. If both these conditions
are met, we must decide whether the regulation "directly advances the
governmental interest asserted, and whether it is not more extensive
than is necessary to serve that interest." Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 566
(1980).
Given the means by which this regulation purportedly serves the
State's interest, our conclusion is plain: Rhode Island's regulation
fails First Amendment scrutiny.
Both parties agree that the first two prongs of the Central Hudson test
are met. Even if we assume arguendo that Rhode Island's regulation
also satisfies the requirement that it directly advance the governmental
interest, Rhode Island's regulation fails the final prong; that is, its
ban is more extensive than necessary to serve the State's interest.
As we have explained, in order for a speech restriction to pass muster
under the final prong, there must be a fit between the legislature's
goal and method, "a fit that is not necessarily perfect, but reasonable;
that represents not necessarily the single best disposition but one
whose scope is in proportion to the interest served." Board of
Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989)
(internal quotation marks omitted). While the State need not employ
the least restrictive means to accomplish its goal, the fit between
means and ends must be "narrowly tailored." Id., at 480. The scope
of the restriction on speech must be reasonably, though it need not be
perfectly, targeted to address the harm intended to be regulated. See
Florida Bar v. Went For It, Inc., 515 U. S. ___, ___ (1995) (slip
op., at 14-16). The State's regulation must indicate a "carefu[l]
calculat[ion of] the costs and benefits associated with the burden on
speech imposed by its prohibition." Cincinnati v. Discovery
Network, Inc., 507 U. S. 410, 417 (1993) (internal quotation marks
omitted). The availability of less burdensome alternatives to reach
the stated goal signals that the fit between the legislature's ends and
the means chosen to accomplish those ends may be too imprecise to
withstand First Amendment scrutiny. See Rubin v. Coors Brewing
Co., 514 U. S. ___, ___ (1995) (slip op., 13-15); Cincinnati, supra,
at 417, n. 13. If alternative channels permit communication of the
restricted speech, the regulation is more likely to be considered
reasonable. See Florida Bar, supra, at ___-___ (slip op., at 14-17).
Rhode Island offers one, and only one, justification for its ban on
price advertising. Rhode Island says that the ban is intended to keep
alcohol prices high as a way to keep consumption low. By
preventing sellers from informing customers of prices, the regulation
prevents competition from driving prices down and requires
consumers to spend more time to find the best price for alcohol.
Brief for Respondent State of Rhode Island 22. The higher cost of
obtaining alcohol, Rhode Island argues, will lead to reduced
consumption.
The fit between Rhode Island's method and this particular goal is not
reasonable. If the target is simply higher prices generally to
discourage consumption, the regulation imposes too great, and
unnecessary, a prohibition on speech in order to achieve it. The State
has other methods at its disposal-methods that would more directly
accomplish this stated goal without intruding on sellers' ability to
provide truthful, nonmisleading information to customers. Indeed,
Rhode Island's own expert conceded that "`the objective of lowering
consumption of alcohol by banning price advertising could be
accomplished by establishing minimum prices and/or by increasing
sales taxes on alcoholic beverages.'" 39 F. 3d 5, 7 (CA1 1994). A
tax, for example, is not normally very difficult to administer and
would have a far more certain and direct effect on prices, without any
restriction on speech. The principal opinion suggests further
alternatives, such as limiting per capita purchases or conducting an
educational campaign about the dangers of alcohol consumption.
Ante, at 21. The ready availability of such alternatives-at least some
of which would far more effectively achieve Rhode Island's only
professed goal, at comparatively small additional administrative cost-
demonstrates that the fit between ends and means is not narrowly
tailored. Too, this regulation prevents sellers of alcohol from
communicating price information anywhere but at the point of
purchase. No channels exist at all to permit them to publicize the
price of their products.
Respondents point for support to Posadas de Puerto Rico Associates
v. Tourism Co. of P. R., 478 U. S. 328 (1986), where, applying the
Central Hudson test, we upheld the constitutionality of a Puerto Rico
law that prohibited the advertising of casino gambling aimed at
residents of Puerto Rico, but permitted such advertising aimed at
tourists.
The Court there accepted as reasonable the legislature's belief that the
regulation would be effective, and concluded that, because the
restriction affected only advertising of casino gambling aimed at
residents of Puerto Rico, not that aimed at tourists, the restriction
was narrowly tailored to serve Puerto Rico's interest. 478 U. S., at
341-344. The Court accepted without question Puerto Rico's
account of the effectiveness and reasonableness of its speech
restriction. Respondents ask us to make a similar presumption here
to uphold the validity of Rhode Island's law.
It is true that Posadas accepted as reasonable, without further
inquiry, Puerto Rico's assertions that the regulations furthered the
government's interest and were no more extensive than necessary to
serve that interest. Since Posadas, however, this Court has examined
more searchingly the State's professed goal, and the speech
restriction put into place to further it, before accepting a State's claim
that the speech restriction satisfies First Amendment scrutiny. See,
e.g., Florida Bar v. Went For It, Inc., 515 U. S. ___; Rubin v.
Coors Brewing Co., 514 U. S. ___ (1995); Ibanez v. Florida Dept.
of Business and Professional Regulation, Bd. of Accountancy, 512
U. S. ___ (1994); Edenfield v. Fane, 507 U. S. 761 (1993);
Cincinnati v. Discovery Network, Inc., 507 U. S. 410 (1993). In
each of these cases we declined to accept at face value the proffered
justification for the State's regulation, but examined carefully the
relationship between the asserted goal and the speech restriction used
to reach that goal. The closer look that we have required since
Posadas comports better with the purpose of the analysis set out in
Central Hudson, by requiring the State to show that the speech
restriction directly advances its interest and is narrowly tailored.
Under such a closer look, Rhode Island's price-advertising ban
clearly fails to pass muster.
Because Rhode Island's regulation fails even the less stringent
standard set out in Central Hudson, nothing here requires adoption of
a new analysis for the evaluation of commercial speech regulation.
The principal opinion acknowledges that "even under the less than
strict standard that generally applies in commercial speech cases, the
State has failed to establish a reasonable fit between its abridgement
of speech and its temperance goal." Ante, at 21 (internal quotation
marks omitted). Because we need go no further, I would not here
undertake the question whether the test we have employed since
Central Hudson should be displaced.
Respondents argue that an additional factor, the Twenty-first
Amendment, tips the First Amendment analysis in Rhode Island's
favor.
The Twenty-first Amendment repealed the prohibition on the
manufacture, sale, or transportation of intoxicating liquors that had
been established by the 18th Amendment. Section 2 of the Twenty-
first Amendment created an exception to the normal operation of the
Commerce Clause, to permit States to prohibit commerce in, or the
use of, alcoholic beverages. Craig v. Boren, 429 U. S. 190, 206
(1976).
In its examination of Rhode Island's statute, the Court of Appeals
erroneously concluded that the Twenty-first Amendment provided an
"added presumption in favor of the validity of the state regulation."
39 F. 3d 7-9 (internal quotation marks omitted). The Twenty-first
Amendment cannot save an otherwise invalid restriction on speech.
Nothing in the Amendment's text or history justifies its use to alter
the application of the First Amendment. "[O]ur prior cases have made
clear that the [Twenty-first] Amendment does not license the States to
ignore their obligations under other provisions of the Constitution."
Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 712 (1984). See
also Larkin v. Grendel's Den, Inc., 459 U. S. 116, 122, n. 5 (1982)
("The State may not exercise its power under the Twenty-first
Amendment in a way which impinges upon the Establishment Clause
of the First Amendment"); Craig, supra, at 206 ("Neither the text nor
the history of the Twenty-first Amendment suggests that it qualifies
individual rights protected by the Bill of Rights and the Fourteenth
Amendment where the sale or use of liquor is concerned" (internal
quotation marks omitted)). The Twenty-first Amendment does not
trump First Amendment rights or add a presumption of validity to a
regulation that cannot otherwise satisfy First Amendment
requirements.
The Court of Appeals relied on California v. LaRue, 409 U. S. 109,
118-119 (1972), for its determination that the Twenty-first
Amendment provided an "added presumption" of the regulation's
validity. There, this Court upheld a State's regulations prohibiting
establishments licensed to sell liquor by the drink from offering
explicitly sexual entertainment. As we recently explained in Coors,
"LaRue did not involve commercial speech about alcohol, but instead
concerned the regulation of nude dancing in places where alcohol
was served." 514 U. S., at ___, n. 2 (slip op., at 5, n. 2). The
cases following LaRue similarly involved the regulation of nude or
nearly nude dancing in establishments licensed to serve alcohol.
New York State Liquor Authority v. Bellanca, 452 U. S. 714 (1981)
(per curiam); Newport v. Iacobucci, 479 U. S. 92 (1986) (per
curiam). Nothing in LaRue suggested that the Twenty-first
Amendment would permit a State to prohibit the kind of speech at
issue here, and as discussed above, the text and history of the
Twenty-first Amendment clearly indicate that the Amendment was
not intended to supplant the general application of constitutional
provisions, except for its limited exception to the Commerce Clause's
normal operation. Indeed, LaRue notes that prior decisions "did not
go so far as to hold or say that the Twenty-first Amendment
supersedes all other provisions of the United States Constitution in
the area of liquor regulations," 409 U. S., at 115, and LaRue
certainly does not stand for that proposition. The Court of Appeals'
reliance on LaRue was misplaced.
Rhode Island's prohibition on alcohol-price advertising, as a means
to keep alcohol prices high and consumption low, cannot survive
First Amendment scrutiny. The Twenty-first Amendment cannot save
this otherwise invalid regulation. While I agree with the Court's
finding that the regulation is invalid, I would decide that issue on
narrower grounds. I therefore concur in the judgment.
ENDNOTES for opinion
1 Although the text of the First Amendment states that "Congress
shall make no law . . . abridging the freedom of speech, or of the
press," the Amendment applies to the States under the Due Process
Clause of the Fourteenth Amendment. See Board of Ed., Island
Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853, 855,
n. 1 (1982); Grosjean v. American Press Co., 297 U. S. 233, 244
(1936); Gitlow v. New York, 268 U. S. 652, 666 (1925).
2 Rhode Island Gen. Laws Section 3-8-7 (1987) provides:
"Advertising price of malt beverages, cordials, wine or distilled
liquor.-No manufacturer, wholesaler, or shipper from without this
state and no holder of a license issued under the provisions of this
title and chapter shall cause or permit the advertising in any manner
whatsoever of the price of any malt beverage, cordials, wine or
distilled liquor offered for sale in this state; provided, however, that
the provisions of this section shall not apply to price signs or tags
attached to or placed on merchandise for sale within the licensed
premises in accordance with rules and regulations of the department."
Regulation 32 of the Rules and Regulations of the Liquor Control
Administrator provides that no placard or sign that is visible from the
exterior of a package store may make any reference to the price of
any alcoholic beverage. App. 2 to Brief for Petitioners.
3 Rhode Island Gen. Laws Section 3-8-8.1 (1987) provides:
"Price advertising by media or advertising companies unlawful.-No
newspaper, periodical, radio or television broadcaster or
broadcasting company or any other person, firm or corporation with
a principal place of business in the state of Rhode Island which is
engaged in the business of advertising or selling advertising time or
space shall accept, publish, or broadcast any advertisement in this
state of the price or make reference to the price of any alcoholic
beverages. Any person who shall violate any of the provisions of this
section shall be guilty of a misdemeanor . . . ." The statute
authorizes the liquor control administrator to exempt trade journals
from its coverage. Ibid.
4 "We also have little difficulty in finding that the asserted
governmental interests, herein described as the promotion of
temperance and the reasonable control of the traffic in alcoholic
beverages, are substantial. We note, parenthetically, that the word
`temperance' is oftentimes mistaken as a synonym for `abstinence.'
It is not. Webster's Third New International Dictionary (1961)
defines `temperance' as `moderation in or abstinence from the use of
intoxicating drink.' The Rhode Island Legislature has the authority,
derived from the state's inherent police power, to enact a variety of
laws designed to suppress intemperance or to minimize the
acknowledged evils of liquor traffic. Thus, there can be no question
that these asserted interests are indeed substantial. Oklahoma
Telecasters Association v. Crisp, 699 F. 2d at 500." S&S Liquor
Mart, Inc. v. Pastore, 497 A. 2d, at 733-734.
In her dissent in Rhode Island Liquor Stores Assn. v. Evening Call
Pub. Co., 497 A. 2d 331 (R. I. 1985), Justice Murray suggested that
the advertising ban was motivated, at least in part, by an interest in
protecting small retailers from price competition. Id., at 342, n. 10.
This suggestion is consistent with the position taken by respondent
Rhode Island Liquor Stores Association in this case. We, however,
accept the State Supreme Court's identification of the relevant state
interest served by the legislation.
5 The plaintiff in that case is a respondent in this case and has filed
other actions enforcing the price advertising ban. See id., at 333.
6 In Dunagin v. Oxford, 718 F. 2d 738 (CA5 1983), the Fifth
Circuit distinguished our summary action in Queensgate in
considering the constitutionality of a sweeping state restriction on
outdoor liquor advertising. The Court explained that Queensgate did
not control because it involved a far narrower alcohol advertising
regulation. Id., at 745-746. By contrast, in Oklahoma Telecasters
Assn. v. Crisp, 699 F. 2d 490, 495-497 (CA10 1983), rev'd on
other grounds sub nom., Capital Cities Cable, Inc. v. Crisp, 467 U.
S. 691, 697 (1984), the Tenth Circuit relied on Queensgate in
considering a prohibition against broadcasting alcohol
advertisements. The Court of Appeals concluded that Queensgate
stood for the proposition that the Twenty-first Amendment gives the
State greater authority to regulate liquor advertising than the First
Amendment would otherwise allow. 699 F. 2d, at 495-497.
Other than the two Rhode Island Supreme Court decisions upholding
the constitutionality of the statutes at issue in this case, only one
published state court opinion has considered our summary action in
Queensgate in passing on a liquor advertising restriction. See
Michigan Beer & Wine Wholesalers Assn. v. Attorney General, 142
Mich. App. 294, 370 N. W. 2d 328 (1985). There, the Michigan
Court of Appeals concluded that Queensgate did not control because
it involved a far narrower restriction on liquor advertising than the
one that Michigan had imposed. 142 Mich. App., at 304-305, 370
N. W. 2d, at 333-335.
7 By contrast, the First Amendment does not protect commercial
speech about unlawful activities. See Pittsburgh Press Co. v.
Pittsburgh Comm'n on Human Relations, 413 U. S. 376 (1973).
8 See Bates v. State Bar of Ariz., 433 U. S. 350, 355 (1977) (ban
on lawyer advertising); Carey v. Population Services Int'l, 431 U. S.
678, 700 (1977) (ban on contraceptive advertising); Linmark
Associates, Inc. v. Willingboro, 431 U. S. 85, 92-94 (1977) (ban on
`For Sale' signs); Virginia Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U. S. 748 (1976) (ban on prescription
drug prices); Bigelow v. Virginia, 421 U. S. 809, 825 (1975) (ban
on abortion advertising). Although Linmark involved a prohibition
against a particular means of advertising the sale of one's home, we
treated the restriction as if it were a complete ban because it did not
leave open "satisfactory" alternative channels of communication. 431
U. S., at 92-94.
9 In other words, the regulation failed the fourth step in the four-part
inquiry that the majority announced in its opinion. It wrote:
"In commercial speech cases, then, a four-part analysis has
developed. At the outset, we must determine whether the expression
is protected by the First Amendment. For commercial speech to come
within that provision, it at least must concern lawful activity and not
be misleading. Next, we ask whether the asserted governmental
interest is substantial. If both inquiries yield positive answers, we
must determine whether the regulation directly advances the
governmental interest asserted, and whether it is not more extensive
than is necessary to serve that interest." Central Hudson, 447 U. S.,
at 566.
10 The Justices concurring in the judgment adopted a somewhat
broader view. They expressed "doubt whether suppression of
information concerning the availability and price of a legally offered
product is ever a permissible way for the State to `dampen' the
demand for or use of the product." Id., at 574. Indeed, Justice
Blackmun believed that even "though `commercial' speech is
involved, such a regulation strikes at the heart of the First
Amendment." Ibid.
11 "Florida permits lawyers to advertise on prime-time television and
radio as well as in newspapers and other media. They may rent
space on billboards. They may send untargeted letters to the general
population, or to discrete segments thereof. There are, of course,
pages upon pages devoted to lawyers in the Yellow Pages of Florida
telephone directories. These listings are organized alphabetically and
by area of specialty. See generally Rule 4-7.2(a), Rules Regulating
The Florida Bar (`[A] lawyer may advertise services through public
media, such as a telephone directory, legal directory, newspaper or
other periodical, billboards, and other signs, radio, television, and
recorded messages the public may access by dialing a telephone
number, or through written communication not involving solicitation
as defined in rule 4-7.4'); The Florida Bar: Petition to Amend the
Rules Regulating The Florida Bar-Advertising Issues, 571 So 2d, at
461." Florida Bar v. Went For It, Inc., 515 U. S., at ___ (slip op.,
at 15-16).
12 In Discovery Network, we held that the city's categorical ban on
commercial newsracks attached too much importance to the
distinction between commercial and noncommercial speech. After
concluding that the aesthetic and safety interests served by the
newsrack ban bore no relationship whatsoever to the prevention of
commercial harms, we rejected the State's attempt to justify its ban
on the sole ground that it targeted commercial speech. See 507 U.
S., at 428.
13 This case bears out the point. Rhode Island seeks to reduce
alcohol consumption by increasing alcohol price; yet its means of
achieving that goal deprives the public of their chief source of
information about the reigning price level of alcohol. As a result, the
State's price advertising ban keeps the public ignorant of the key
barometer of the ban's effectiveness: The alcohol beverages' prices.
14 Before the District Court, the State argued that it sought to reduce
consumption among irresponsible drinkers. App. 67. In its brief to
this Court, it equates its interest in promoting temperance with an
interest in reducing alcohol consumption among all drinkers. See,
e.g., Brief for Respondents 28. The Rhode Island Supreme Court
has characterized the State's interest in "promoting temperance" as
both "the state's interest in reducing the consumption of liquor,"
S&S Liquormart, Inc. v. Pastore, 497 A. 2d 729, 734 (1985), and
the State's interest in discouraging "excessive consumption of
alcoholic beverages." Id. at 735. A state statute declares the ban's
purpose to be "the promotion of temperance and for the reasonable
control of the traffic in alcoholic beverages." R. I. Gen. Laws
Section 3-1-5 (1987).
15 See, e.g., Business Electronics Corp. v. Sharp Electronics Corp.,
485 U. S. 717, 735 (1988) (considering restriction on price
advertising as evidence of Sherman Act violation); United States v.
Sealy, Inc., 388 U. S. 350, 355 (1967) (same); Blackburn v.
Sweeney, 53 F. 3d 825, 828 (CA7 1995) (considering restrictions
on the location of advertising as evidence of Sherman Act violation).
16 The appellants' stipulation that they each expect to realize a
$100,000 benefit per year if the ban is lifted is not to the contrary.
App. 47. The stipulation shows only that the appellants believe they
will be able to compete more effectively for existing alcohol
consumers if there is no ban on price advertising. It does not show
that they believe either the number of alcohol consumers, or the
number of purchases by those consumers, will increase in the ban's
absence. Indeed, the State's own expert conceded that "plaintiffs'
expectation of realizing additional profits through price advertising
has no necessary relationship to increased overall consumption."
829 F. Supp., at 549.
Moreover, we attach little significance to the fact that some studies
suggest that people budget the amount of money that they will spend
on alcohol. 39 F. 3d 5, 7 (CA1 1994). These studies show only
that, in a competitive market, people will tend to search for the
cheapest product in order to meet their budgets. The studies do not
suggest that the amount of money budgeted for alcohol consumption
will remain fixed in the face of a market-wide price increase.
17 Although the Court of Appeals concluded that the regulation
directly advanced the State's interest, it did not dispute the District
Court's conclusion that the evidence suggested that, at most, a price
advertising ban would have a marginal impact on overall alcohol
consumption. Id., at 7-8; cf. Michigan Beer & Wine Wholesalers
Assn. v. Attorney General, 142 Mich. App., at 311, 370 N. W. 2d,
at 336 (explaining that "any additional impact on the level of
consumption attributable to the absence of price advertisements
would be negligible").
18 Outside the First Amendment context, we have refused to uphold
alcohol advertising bans premised on similarly speculative assertions
about their impact on consumption. See Capital Cities Cable, Inc. v.
Crisp, 467 U. S. 691, 715-716 (1984) (holding ban pre-empted by
Federal Communications Commission regulations); California Retail
Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97
(1980) (holding ban violated the Sherman Act). It would be
anomalous if the First Amendment were more tolerant of speech bans
than federal regulations and statutes.
19 "Give a man a fish, and you feed him for a day. Teach a man to
fish, and you feed him for a lifetime." The International Thesaurus
of Quotations 646 (compiled by R. Tripp 1970).
20 It is also no answer to say that it would be "strange" if the First
Amendment tolerated a seemingly "greater" regulatory measure while
forbidding a "lesser" one. We recently held that although the
government had the power to proscribe an entire category of speech,
such as obscenity or so-called fighting words, it could not limit the
scope of its ban to obscene or fighting words that expressed a point
of view with which the government disagrees. R. A. V. v. St. Paul,
505 U. S. 377 (1992). Similarly, in Cincinnati v. Discovery
Network, Inc., 507 U. S. 410 (1993), we assumed that States could
prevent all newsracks from being placed on public sidewalks, but
nevertheless concluded that they could not ban only those newsracks
that contained certain commercial publications. Id., at 428.
21 "Section 2. The transportation or importation into any State,
Territory, or possession of the United States for delivery or use
therein of intoxicating liquors, in violation of the laws thereof, is
hereby prohibited." U. S. Const., Amdt. 21, Section 2.
22 The State also relies on two per curiam opinions that followed the
21st Amendment analysis set forth in Larue. See New York State
Liquor Authority v. Bellanca, 452 U. S. 714 (1981), and Newport
v. Iacobucci, 479 U. S. 92 (1986).
ENDNOTES for Justice Thomas concurring
1 Accord, Virginia Pharmacy Bd., 425 U. S., at 780, n. 8 (Stewart,
J., concurring) (information about price and products conveyed by
advertising may stimulate thought and debate about political
questions).
2 See Linmark Associates, Inc. v. Township of Willingboro, 431 U.
S. 85, 96-97 (1977); Bates v. State Bar of Ariz., 433 U. S. 350,
364-365, 368-369, 374-375, 376-377 (1977); Friedman v. Rogers,
440 U. S. 1, 8-9 (1979); id., at 23-24 (Blackmun, J., for two
Justices, concurring in part and dissenting in part); Central Hudson
Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S.
557, 561-562 (1980); id. at 566, n. 9; id., at 575 (Blackmun, J.,
joined by Brennan, J., concurring in judgment); id., at 581
(STEVENS, J., also joined by Brennan, J., concurring in judgment);
Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 79 (1983)
(REHNQUIST, J., for two Justices, concurring in judgment);
Zauderer v. Office of Disciplinary Counsel of Supreme Court of
Ohio, 471 U. S. 626, 646 (1985); Posadas de Puerto Rico
Associates v. Tourism Co. of P. R., 478 U. S. 328, 350-351, 358
(1986) (Brennan, J., for three Justices, dissenting); Cincinnati v.
Discovery Network, Inc., 507 U. S. 410, 421-422, n. 17 (1993);
id., at 432 (Blackmun, J., concurring); Edenfield v. Fane, 507 U. S.
761, 767, 770 (1993); United States v. Edge Broadcasting Co., 509
U. S. 418, 437-439, and nn. 1, 3, 4 (1993) (STEVENS, J., for two
Justices, dissenting); Ibanez v. Florida Dept. of Business and
Professional Regulation, Bd. of Accountancy, 512 U. S. ___, ___
(1994) (slip op., at 5-7); Rubin v. Coors Brewing Co., 514 U. S.
___ (1995) (slip op., at 4-5); id., at ___, ___ (STEVENS, J.,
concurring in judgment) (slip op., at 1-3, 7-8); Florida Bar v. Went
For It, Inc., 515 U. S. ___ (1995) (KENNEDY, J., for four
Justices, dissenting) (slip op., at 5-6, 10-11).
3 The Court found that although the total effect of the advertising ban
would be to decrease consumption, the advertising ban
impermissibly extended to some advertising that itself might not
increase consumption. Central Hudson, supra, at 569-571.
4 As noted above, the asserted rationales for differentiating
"commercial" speech from other speech are (1) that the truth of
"commercial" speech is supposedly more verifiable, and (2) that
"commercial speech, the offspring of economic self-interest" is
supposedly a "hardy breed of expression that is not particularly
susceptible to being crushed by overbroad regulation." Central
Hudson, supra, at 564, n. 6 (internal quotation marks omitted). The
degree to which these rationales truly justify treating "commercial"
speech differently from other speech (or indeed, whether the requisite
distinction can even be drawn) is open to question, in my view. See
Kozinski & Banner, Who's Afraid of Commercial Speech, 76 Va. L.
Rev. 627, 634-638 (1990) (questioning basis for drawing
distinction); id., at 638-650 (questioning coherence of distinction).
In any event, neither of these rationales provides any basis for
permitting government to keep citizens ignorant as a means of
manipulating their choices in the commercial or political marketplace.
5 In other words, I do not believe that a Central Hudson-type
balancing test should apply when the asserted purpose is like the one
put forth by the government in Central Hudson itself. Whether some
type of balancing test is warranted when the asserted state interest is
of a different kind is a question that I do not consider here.
6 E.g., Cincinnati v. Discovery Network, 507 U. S., at 417, n. 13
(commercial speech restrictions impermissible if alternatives are
"numerous" and obvious).
7 The two most obvious situations in which no equally effective
direct regulation will be available for discouraging consumption (and
thus, the two situations in which the Court and I might differ on the
outcome) are: (1) When a law directly regulating conduct would
violate the Constitution (e.g., because the item is constitutionally
protected), or (2) when the sale is to occur outside the State's
borders.
As to the first situation: Although the Court's application of the
fourth prong today does not specifically foreclose regulations or bans
of advertising regarding items that cannot constitutionally be banned,
it would seem strange to hold that the government's power to
interfere with transmission of information regarding these items, in
order to dampen demand for them, is more extensive than its power
to restrict, for the same purpose, advertising of items that are not
constitutionally protected. Cf. Bigelow v. Virginia, 421 U. S. 809,
822 (1975).
As to the second situation: When a State seeks to dampen
consumption by its citizens of products or services outside its
borders, it does not have the option of direct regulation. Here,
respondent correctly points out that alternatives such as taxes will not
be effective in discouraging sales to Rhode Island residents of lower
priced alcohol outside the State, see Brief for Respondent Rhode
Island Liquor Stores Association 27; yet the Court strikes down the
ban against price advertising even as applied to out-of-state liquor
sellers such as petitioner Peoples Super Liquor Stores. Perhaps
JUSTICE STEVENS and JUSTICE O'CONNOR would distinguish
a situation in which a State had actually banned sales of lower priced
alcohol within the State and had then, through a ban of advertising by
out-of-state sellers, sought to keep residents ignorant of the fact that
lower priced alcohol was legally available in other States. Cf. Edge,
supra. See ante, at 22-23.
The outcome in Edge may well be in conflict with the principles
espoused in Virginia Pharmacy Bd. and ratified by me today. See
Edge, 509 U. S., at 436-439 (STEVENS, J., dissenting). (In Edge,
respondent did not put forth the broader principles adopted in
Virginia Pharmacy Bd., but rather argued that the advertising
restriction did not have a sufficiently close fit under Central Hudson.)
Because the issue of restrictions on advertising of products or
services to be purchased legally outside a State that has itself banned
or regulated the same purchases within the State is not squarely
presented in this case, I will not address here whether the decision in
Edge can be reconciled with the position I take today.
8 See, e.g., Kozinski & Banner, 76 Va. L. Rev., at 630-631 (citing
cases); Wright, Freedom and Culture: Why We Should Not Buy
Commercial Speech, 72 Denv. U. L. Rev. 137, 162-166 (1994)
(citing cases); Kaskove, New York State Association of Realtors,
Inc. v. Shaffer: When the Second Circuit Chooses Between Free
Speech and Fair Housing, Who Wins?, 61 Brooklyn L. Rev. 397,
409-410, and nn. 71, 73, 418 (1995); Note, Dunagin v. City of
Oxford: Mississippi's Suppression of Liquor Advertising, 63 Detroit
L. Rev. 175, 184-187 (1985); Faille, Spinning the Roulette Wheel:
Commercial Speech and Philosophical Cogency, Fed. B. N. & J.
(1994), pp. 58, 60-62; Margulies, Connecticut's Free Speech
Clauses: A Framework and an Agenda, 65 Conn. Bar J. 437, 440,
n. 20 (1991) (citing cases).
9 The third prong of Central Hudson is far from a mechanical one.
In Posadas, Edge, and other cases, the Court has presumed that
advertising bans decrease consumption. Here, by contrast, the
principal opinion demands proof of a "significant" decrease in
consumption, and finds it lacking. But petitioners' own expert
testified at one point that, taking into account disposable income,
price was a "potent" influence on alcohol consumption, see App. 79;
and the American Medical Association had apparently concluded that
advertising of alcohol in general increased total alcohol consumption
sufficiently to make a ban on advertising worthwhile, see 44 Liquor
Mart, Inc. v. Racine, 829 F. Supp. 543, 548 (DRI 1993). A court
more inclined to uphold the ban here could have pointed to these facts
in support.
The courts have also had difficulty applying the fourth prong because
the outcome has depended upon the level of generality with which the
interest was described. See Faille, supra, at 58, 60. If today's strict
application of the fourth prong survives, it will clarify the prong's
application in a large number of cases, since, as noted above, it will
simply invalidate most restrictions in which the government attempts
to manipulate consumption through enforced ignorance rather than
through direct regulation.
10 See ante, at 28 (noting that scope of any "vice" category of
products would be difficult to define).
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