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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

F, 44 Liquormart v. Rhode Island (1996),

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

44 Liquormart v. Rhode Island (1996),

517 U.S. 484 (1996), argued 1 Nov. 1995, decided 13 May 1996 by vote of 9 to 0; Stevens for the Court, Kennedy, Souter, Ginsburg, Thomas, Scalia, O’Connor, Breyer, and Rehnquist concurring in different parts. The 44 Liquormart case was the most important free speech case of the 1995–1996 term, but it was also limited in its impact, since it dealt with advertising as speech rather than the more contested areas of political and religious expression (see commercial speech).

(p. 358) The case resulted from a 1956 Rhode Island law, similar to ones in ten other states, that banned liquor prices in newspapers and other advertising media, even to the exclusion of using the word “sale.” The ban also extended to media in other adjoining states that published or broadcast into Rhode Island. Such measures had assumed increasing importance by the early 1990s, as the Clinton administration and various consumer groups attempted to restrict the use of cigarettes, fatty foods, and the abuse of alcohol.

Historically, *commercial speech received less protection than did, for example, political expression. In 1976 the justices held in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council that a free-enterprise economy depended on the free flow of information and that truthful, nonmisleading advertising was entitled to First Amendment protection. The Court reiterated its position in Central Hudson Gas v. Public Service Commission of New York (1980), where the justices established a four-part test that stressed the accuracy and lawfulness of the advertising. At the same time, such speech has never enjoyed the same high degree of protection granted political and artistic expression.

The uncertain constitutional status of commercial speech became evident as the Rhode Island case moved through the lower federal courts. The federal district court in Rhode Island that originally heard the 44 Liquormart case declared the Rhode Island statute unconstitutional, but the Court of Appeals for the First Circuit overturned that decision and found in favor of Rhode Island. The court of appeals noted especially that competitive-price advertising would ultimately increase sales, and hence alcohol consumption, and that the *Twenty-First Amendment (repealing Prohibition) gave the advertising ban an added presumption of validity.

Counsel for Rhode Island argued before the Supreme Court that forcing customers to enter the store to learn the price of liquor would indeed drive up the price and restrict consumption. The authority to limit advertising of prices was clearly within the police powers of the state, since, among other things, it would likely result in fewer drunk drivers on the road. In many ways, however, the economic analysis presented by Rhode Island was inconclusive.

Lawyers for the liquor sellers took a different tack by drawing on the Central Hudson precedent. They argued that since the state permitted the sale of liquor, it could not also argue that it was so dangerous that it could not be freely advertised.

The High Court sided with the liquor store and struck down the ban. Justice John Paul Stevens’s opinion held that “a state legislature does not have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes” (p. 531). Justices Anthony M. *Kennedy, Clarence *Thomas, and Ruth Bader *Ginsburg joined in this reasoning, although each of them penned separate concurring opinions, all of which made the point that Rhode Island had failed to demonstrate that it had a substantial state interest in keeping the price of alcohol high and consumption low. Moreover, even though the Twenty-First Amendment had repealed Prohibition and gave the states the power to regulate alcohol, it did not follow that *First Amendment free speech guarantees were ended. Justice Thomas, for his part, argued that commercial speech should be heavily protected and that government should never keep its citizens ignorant of the choices before them. Justice Antonin *Scalia agreed that the law should be struck down, but he found different grounds. According to Scalia, neither the framers of the First or the *Fourteenth Amendments had any concept of commercial speech. He urged the Court, therefore, to avoid further muddying the interpretive waters and merely affirm its existing precedents.

The other justices—Sandra Day *O’Connor, William H. *Rehnquist, Stephen G. *Breyer, and David H. *Souter—believed that while the ban should have been overturned, the grounds that the Court used should have been narrower. O’Connor noted that the states could use other means for promoting temperance, such as raising taxes and establishing minimum prices.

While the 44 Liquormart decision grabbed national attention, its impact was limited to price advertising, a special category of commercial speech. Both federal and state officials have continued successfully to keep alcohol and cigarette advertising away from children.

Kermit L. Hall