Mr. Jefferson, Distilled Spirits and TV Ads

By Robert M. O'Neil

Anyone who teaches and writes as I do in the shadow of Monticello asks from time to time about contentious issues of the day: "What would Thomas Jefferson have thought?" Often we can do little more than speculate; conditions in so many areas today differ so sharply from those that faced the framers that analogies seem strained. Every so often, one senses where the framers would have stood on a question that perplexes national policymakers of the late 20th century. So it is, I believe, with regard to current proposals to ban or severely restrict the advertising of alcohol beverages on radio and television. Though the framers of the Constitution might not find much to their liking on the air these days, that would not cause them to favor censorship. As an initial matter, Mr. Jefferson might even share the hope President Clinton recently expressed‹that the distilled spirits industry would voluntarily revive its half-century-old ban on such advertising. That seems unlikely to happen, however. Several major distillers have continued to buy air time since Seagram entered the fray last summer. While the major networks have refused to sell such time, 70 or more smaller stations have been receptive and have carried such commercials. President Clinton is hardly alone in seeking action. Rep. Joseph P. Kennedy II (D-Mass.) has twice introduced legislation that would curtail liquor advertising on the air. He and other members of Congress, and at least 10 states, have called upon the Federal Communications Commission to launch a formal inquiry. In late April, a consortium of major health organizations petitioned the FCC to examine the liquor advertising issue. The Commission's chairman, Reed Hundt, seems to need no urging. He was an early and outspoken foe of alcohol advertising on the air. But for doubts about the FCC's role in this area, expressed by two of Mr. Hundt's three fellow commissioners, the agency would almost certainly have taken up the cause by now. Given the mounting pressure for federal action, and the collision course that the industry and regulators seem to be pursuing, the issue is almost certain to end up in court sometime in the next year or two. Why, then, would Mr. Jefferson be on the side of the advertisers rather than the regulators? His exquisite taste in wines, and his life-long quest for information about oenology might have shaped his judgment. The real reasons, however, go much deeper. They are central to what free expression is all about. The current controversy is hardly trivial, even though at times it risks being trivialized. It is, in fact, the sharpest test of protection for commercial speech in the two decades since the Supreme Court first brought advertising into the First Amendment's free speech and free press clauses. The premise of protecting advertising in this way is that well-informed consumers are likely to be rational consumers. Two decades ago, in stating the case for protecting advertising, the Supreme Court noted that "the particular consumer's interest in the free flow of commercial information...may be as keen, if not keener by far, than his interest in the day's most urgent political debate." At a more general level, the Justices added, "society also may have a strong interest in the free flow of commercial information." Robert M' O'Neil is the Founding Director of The Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va. He is also a professor of law at the University of Virginia.

The High Court has held consistently to this view. As a unanimous Supreme Court warned just last summer, while striking down a state ban on retail advertising of liquor prices: "Bans against truthful, nonmisleading commercial speech usually rest solely on the offensive assumption that the public will respond 'irrationally' to the truth. The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good." What the Justices said in 44 Liquormart about price advertising applies at least as fully to other information about lawful products. All this has a strikingly Jeffersonian tone. Central to the framers' belief in free speech as a cornerstone of liberty was their conviction that fully informed citizens were the best source of responsible and democratic self government. The framers assumed, as Justice Brandeis put it so eloquently years later: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence." The commercial speech doctrine reflects just these principles. The courts have insisted that a ban on advertising be no broader than absolutely essential. No matter how strong may be its regulatory interest, government must choose that approach which does least harm to expression. Forbidding the advertising of a lawful product must be seen as a last resort--a desperate measure to be invoked only when milder measures have all been tried and found wanting. If regulators come to court without having canvassed all the non-speech alternatives, or without showing why those alternatives would fail if tried, they are almost certain to fail this test and thus lose the case. The issue of liquor advertising suggests the value of this principle. If the goal is to reduce alcohol consumption, government has other means at its disposal. In last summer's case the Supreme Court cited several of those options--higher prices, limits on purchases, and "educational campaigns" focused on problems of excessive drinking. Such suggestions neatly fit the Jeffersonian view of free speech. While current regulatory efforts move forward, as they almost certainly will, it is vital to keep clearly in mind the historical and constitutional context in which these issues arise. When this context is considered, the idea of restricting or banning liquor advertisements fares poorly. It is certainly not an idea Mr. Jefferson could be expected to embrace.

44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996).