Justices Ax R.I. Ban on Liquor Price Ads: Debate Free Speech about Legal Vices

By Murray, Frank J. | The Washington Times (Washington, DC), May 14, 1996 | Go to article overview

Justices Ax R.I. Ban on Liquor Price Ads: Debate Free Speech about Legal Vices


Murray, Frank J., The Washington Times (Washington, DC)


A unanimous Supreme Court overturned Rhode Island's 40-year ban on advertising liquor prices yesterday but split over how broadly free-speech protections apply to discouraging legal vices.

The court action could encourage opponents of Clinton administration efforts to limit tobacco marketing and advertising that children might see, though it does not directly address legal aspects of the proposal.

"Banning speech may sometimes prove far more intrusive than banning conduct," Justice John Paul Stevens said in rejecting a 1986 Supreme Court opinion that the power to ban a vice includes the "lesser power" to ban ads for a legal vice.

The ruling, favoring discounters 44 Liquormart and Peoples Super Liquor Stores, overturned a 1st U.S. Circuit Court of Appeals decision for Rhode Island and the state Liquor Store Association, which opposes discounting.

The key passage of the opinion, in which the court's leading liberal was joined by conservatives Anthony M. Kennedy and Clarence Thomas as well as Ruth Bader Ginsburg, accepted the argument by Evan Lawson, attorney for the liquor stores, that banning an activity is not more serious than banning ads about it.

The state went too far in trying to reduce alcoholism by hoping ad restrictions would keep prices high, since that could be achieved without violating speech rights by setting minimum prices or increasing taxes on alcohol, said a separate concurring opinion by Justice Sandra Day O'Connor.

Rhode Island is among 12 states that have such restrictive laws.

The 21st Amendment repealing Prohibition permits states to control liquor but not to override the First Amendment, Justice O'Connor said in reasoning joined by Chief Justice William H. Rehnquist and Justices David H. Souter and Stephen Breyer.

Justice Antonin Scalia voted with his colleagues but avoided joining their opinions, thus preventing either of them from becoming a binding opinion of the court applicable to other cases even though the 1956 law was unanimously overturned.

"I share Justice Stevens' aversion towards paternalistic governmental policies that prevent men and women from hearing facts that might not be good for them [but] it would also be paternalism for us to prevent the people of the states from enacting laws that we consider paternalistic unless . . …

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