Liquor Ad Case May Expand Speech Rights

Article excerpt

This summer, the U.S. Supreme Court agreed to hear a dispute over whether a state's ban on ad vertising liquor prices violates the First on Nov. 1, Justices asked questions about the rights of those advertising all sorts of legal but "harmful" items.

With any luck, 44 Liquormart v. Rhode Island will remove a legal cloud on many types of controversial newspaper advertisements. At the arguments, at least some of the Justices seemed uncomfortable with Rhode Island's ban.

The alcohol price advertisements under scrutiny in the Lawsuit are a consistent share of newspapers, otherwise small slice of the alcoholic beverage advertising market. In 1994, the 129 local newspapers in a Competitive Media Reporting survey received $4.6 million from liquor ads and $5.9 million from beer and wine ads. In the same year, the 210 magazines surveyed received $158.9 million in liquor ads, and network television received $360.3 million in beer and wine ads.

But more is at stake. This case is the High Court's opportunity to disarm a 1986 advertising decision that invites greater regulation of ads for legal but "socially harmful" subjects like gambling, tobacco, and alcohol. If that happens, the 44 Liquormart case will become a valuable weapon for media outlets to oppose further advertising regulations, or to challenge them in court.

Alcoholic beverage advertising is heavily regulated by state, county, and local governments. Their authority is drawn from the Constitution's 21st Amendment, which in 1933 not only ended Prohibition, but gave states great power to regulate--indeed, to ban--sales of alcohol.

For publishers, the result is a nationwide crazy quilt of obscure alcohol ad vertising regulations. For example, a Michigan criminal statute makes it a misdemeanor to refer to a deceased U.S. president in any liquor ad.

At least 10 states place some regulations on alcohol price advertising. The two Rhode Island statutes at issue in this case, like similar laws in Ohio and Pennsylvania, forbid retailers from advertising the price of liquor in Rhode Island media. Bringing the suit are two liquor stores, one from Rhode Island and one from Massachusetts.

First Amendment case law protects the content of lawful and accurate commercial advertising from "unwarranted" government restrictions. However, the Court has never decided whether the First Amendment also limits a state's 21st Amendment authority to regulate the sale of alcohol. …