The Future of Commercial Speech
Beyond 44 Liquormart: What the Supreme Court Didn't Decide
By Robert M. O'Neil
The Supreme Court's decision in 44 Liquormart, Inc. v. Rhode Island
created wholly understandable euphoria in the commercial speech
community. In the first issue of this Digest, P. Cameron DeVore rightly
observed that "in almost every respect, 44 Liquormart is good news for
America's advertisers and consumers." Indeed, in their reaffirmation of
commercial speech, and their repudiation of the abhorrent Posadas
doctrine, the justices went far beyond even what optimists might have
expected.
Every judicial advance comes, however, with qualification or at least
with unresolved questions. It is thus hardly surprising that 44
Liquormart did not sweep aside all remaining constraints on commercial
expression.
What is puzzling, however, is that the subsequent remand of two Fourth
Circuit cases -- both highly deferential to city restrictions on outdoor
advertising -- brought no change in the appeals court. Indeed, the
lower court's flat declaration that "44 Liquormart does not require us
to change our decision" suggests that the celebration could be
premature.
Three nagging questions remain to be addressed in the wake of
44 Liquormart: First, does that judgment apply beyond a flat ban or
prohibition? Second, what remains of the "substantial state interest"
element of the commercial speech doctrine? Third, what remains of the
exception for commercial speech that is deemed "deceptive or
misleading?" We address each issue in turn.
The narrowest reading of 44 Liquormart -- that it applies only to a flat
ban on price advertising -- is plausible. Justice Stevens periodically
called the Rhode Island law a "blanket ban against truthful advertising"
and invoked the Court's oft-expressed distaste for such sweeping
prohibitions. The Fourth Curcuit was thus not wholly disingenuous in
distinguishing from the Rhode Island ban Baltimore's more selective,
more narrowly focused billboard ordinance.
Others suggest that the force of 44 Liquormart could be blunted or
avoided on this ground in the pending challenge to the FDA's cigarette
advertising regulations; indeed, the government so argues (at p. 103 in
its massive response filed in late November 1996).
The question of
whether 44 Liquormart reaches only flat bans is not a simple one. While
technically Rhode Island had not outlawed all price advertising --
liquor stores were allowed to post prices on the premises -- the Court
treated the law as though it had suppressed all communication.
The reasoning also recalled the Court's earlier abhorrence of total bans
on the flow of information that held potential value for consumers. Yet
the difference between total and partial bans is one of degree, not of
kind.
Moreover, the Court's resounding reaffirmation of the most
basic values of commercial speech, and its declared disdain for the
laxer standard invoked in Posadas and other cases of the late 1980s,
surely transcend the precise type of constraint that Rhode Island had
enacted.
At the very least, 44 Liquormart's broad reasoning logically applies to
restraints on advertising that fall short of total prohibition, even if
the liquor price ban may present the most compelling case for First
Amendment intervention. The revival of substantial protection for
commercial speech -- bringing the Central Hudson test back into favor
after a period of uncertainty -- surely betokens more than a judicial
distaste for total bans. Just a year earlier, in fact, the Court had
been acutely critical of a quite different type of federal law that
limited information about alcohol content in certain beverages. Thus,
so narrow and grudging a reading of 44 Liquormart would demean the
emphasis the Court itself placed on the case, and would unduly and
prematurely limit its potential influence on the course of First
Amendment law.
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