517 U.S. 484, 116 S. Ct. 1495, 134 L. Ed. 2d 711 (1996)
In 1956, the Rhode Island Legislature enacted two separate prohibitions against advertising in any manner the price of alcoholic beverages offered for sale in the state.1 The first prohibition applied to vendors licensed in Rhode Island and to out-of-state manufacturers, wholesalers, and shippers.2 The second applied to the Rhode Island news media.3 In 1985 the Rhode Island Supreme Court reviewed and upheld the constitutionality of the first ban in two separate cases.4
Petitioners 44 Liquormart, Inc. and Peoples Super Liquor Stores, Inc. are licensed retailers of alcoholic beverages.5 44 Liquormart operates a store in Rhode Island.6 Peoples operates stores in Massachusetts that Rhode Island residents frequent.7 In 1991, 44 Liquormart placed an advertisement in a Rhode Island newspaper.8 The ad stated that state law prohibited advertising liquor prices.9 It displayed the word WOW next to pictures of vodka and rum bottles along with low prices for peanuts, potato chips, and Schweppes mixers.10 The Rhode Island Liquor Control Administrator assessed a four-hundred-dollar fine against 44 Liquormart.11
After paying the fine, 44 Liquormart and Peoples filed suit in the United States District Court for the District of Rhode Island.12 The complaint sought a declaratory judgment that the two statutes and the administrator's implementing Regulation 34 violated the First Amendment.13 It also asserted a claim under 42 U.S.C. § 1983.14 The parties stipulated that the price advertising ban was vigorously enforced.15 Rhode Island permitted all advertising of alcoholic beverages except price references outside licensed premises.16 The proposed advertisements concerned lawful activity and would not be false or misleading.17 The district court heard conflicting expert testimony and reviewed multiple studies.18 It found as a fact that the ban had no significant impact on levels of alcohol consumption in Rhode Island.19
The district court held the statutes unconstitutional in 1993.20 A panel of the Court of Appeals for the First Circuit reversed the district court judgment.21 The full court sitting en banc later affirmed the result after rehearing in 1995.22 The Supreme Court granted certiorari in 1995 because of the importance of the questions presented.23
Whether the Twenty-first Amendment authorizes Rhode Island to prohibit truthful price advertising of alcoholic beverages in a manner that would otherwise violate the First Amendment?24
No. The Twenty-first Amendment does not authorize Rhode Island's prohibition.27 The established facts demonstrate that the 1956 statutes ban truthful nonmisleading commercial speech about lawful alcohol sales.28 The Amendment's text and history show it was intended only to constitutionalize the Commerce Clause framework for liquor importation.29 It did not repeal other constitutional limits including the First Amendment.30
The facts establish that the Rhode Island Supreme Court upheld the bans in 1985 with an added presumption of validity drawn from the Amendment.31 The federal district court in 1993 applied standard First Amendment scrutiny after finding the ban had no significant impact on consumption.32 The Supreme Court granted certiorari to resolve the constitutional questions.33
The Twenty-first Amendment provides no shield for Rhode Island's price advertising ban from First Amendment review.34
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Joined by The Chief Justice, Justice Souter, And Justice Breyer
Justice O'Connor concurs in the judgment.35 She explains that the Twenty-first Amendment cannot save an otherwise invalid restriction on speech.36 Nothing in the Amendment's text or history justifies its use to alter the application of the First Amendment.37
Prior cases make clear that the Amendment does not license the States to ignore their obligations under other provisions of the Constitution.38 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 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.40
Whether Rhode Island's ban on retail price advertising of alcoholic beverages directly advances the state's interest in promoting temperance?41
Under the Central Hudson framework a commercial speech regulation must directly advance the asserted substantial governmental interest.42 The State bears the burden of showing that the regulation will advance the interest to a material degree rather than providing only ineffective or remote support.43
No. Rhode Island's ban does not directly advance the interest in promoting temperance.44 The established facts show that the district court heard conflicting expert testimony and reviewed multiple studies before finding as a fact that the ban had no significant impact on levels of alcohol consumption in Rhode Island.45 The State presented no evidence beyond speculation from the 1985 state supreme court opinions.46 The facts further establish that the parties stipulated the proposed advertisements concerned lawful activity and would not be false or misleading.47
Yet the district court concluded the ban failed to directly advance the interest.48
The price advertising ban does not directly advance the state's interest in promoting temperance.49
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Justice Thomas concurs in the judgment.50 He writes separately to express the view that the Central Hudson test should be abandoned.51 In cases where the government's asserted interest is to keep legal users of a product ignorant so as to manipulate their choices in the marketplace the balancing test should not be applied.52
Such an interest is per se illegitimate.53 It can no more justify regulation of commercial speech than it can justify regulation of noncommercial speech.54 Application of the advancement-of-state-interest prong of Central Hudson makes little sense when the purpose is keeping consumers ignorant.55
Faulting the State for failing to show a significant decrease in consumption implies that greater success at keeping consumers ignorant might have upheld the restriction.56 This contradicts the rationale for protecting commercial speech.57
Whether the price advertising prohibition is more extensive than necessary to serve the state's asserted interest in temperance?58
Under the Central Hudson framework a commercial speech regulation must be no more extensive than necessary to serve the asserted interest.59 There must be a reasonable fit between the legislature's goal and the means chosen.60 The availability of less burdensome alternatives signals that the fit may be too imprecise.61
Yes. The price advertising prohibition is more extensive than necessary.62 The established facts show that the district court found the ban had no significant impact on consumption.63 It noted that alternatives such as higher prices through taxation or minimum pricing would achieve the goal without restricting speech.64
The State failed to demonstrate that the ban was the least restrictive means.65 The facts establish that the parties stipulated the ban was vigorously enforced.66 Rhode Island permitted all advertising of alcoholic beverages except price references outside licensed premises. This confirms that less speech-restrictive options were available.67
The price advertising prohibition is more extensive than necessary to serve the state's asserted interest in temperance.68
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Justice Scalia concurs in the judgment.69 He joins the opinion of the Court except for its reliance on the doctrine of commercial speech.70 He has previously expressed doubts about the wisdom of that doctrine.71
He continues to believe that the doctrine is unsound and that the First Amendment should protect all truthful speech whether commercial or not.72 The line between commercial and noncommercial speech is often difficult to draw.73 The doctrine has led to considerable confusion.74
He resolves the case in accord with existing jurisprudence which prohibits the challenged regulation.75 He does not believe the Court has the wherewithal to declare Central Hudson wrong or to say what ought to replace it.76