Letting People Decide for Themselves: The U.S. Supreme Court Makes a Wise Decision on Commercial Speech

By Kirtley, Jane | American Journalism Review, July-August 1996 | Go to article overview

Letting People Decide for Themselves: The U.S. Supreme Court Makes a Wise Decision on Commercial Speech


Kirtley, Jane, American Journalism Review


Can governments keep inforimation from their citizens for their own good?' A recent U.S. Supreme Court opinion says no.

Since 1956, Rhode Island has forbidden liquor stores to advertise the prices of alcoholic beverages. The state says that the prohibition "promotes temperance" by making it hard for consumers to locate and patronize vendors who sell the cheapest booze.

Two liquor retailers tried to skirt the law by running an advertisement listing low prices for snacks and mixers, along with pictures of rum and vodka bottles with the word "WOW" in large letters alongside. Their competitors complained to the state liquor control administration, which found that the ad's "implied reference' to low liquor prices violated the law and slapped the retailers with a fine. The two entrepreneurs then filed suit claiming that the statute violated their First Amendment rights.

Commercial speech has been a recognized exception to the general prohibition against government restrictions on free speech for more than 20 years.

Advertising that promotes illegal products or is deceptive is not protected by the First Amendment at all, but even truthful speech about legal products or services has been limited if a state can show that its regulations are narrowly tailored to advance a strong state interest.

For example, in 1986 the Supreme Court upheld a total ban on casino advertising aimed at Puerto Ricans, even though gambling was legal in Puerto Rico, and casinos were allowed to advertise to tourists. The court said that because the commonwealth had the authority to prohibit casino gambling entirely, its selective regulation of commercial speech promoting it was a less restrictive, and therefore acceptable, way to discourage its citizens from gambling.

Against this backdrop, a federal district court struck down the Rhode Island liquor price advertising ban in 1993, finding that it was unconstitutional because the state had failed to prove that the restriction on truthful speech actually reduced sales and advanced "temperance." But a year later, the U.S. Court of Appeals in Boston reversed that decision, ruling that the state's claim that the advertising ban discouraged consumption was a rational one.

In mid-May the Supreme Court overruled the appeals court. Justice John Paul Stevens' opinion in 44 Liquormart, Inc. v. Rhode Island concluded that while states do have an interest in protecting their citizens from misleading advertising or aggressive sales practices, they don't necessarily have an interest in protecting their citizens from themselves. …

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