Beyond 44 Liquormart: Continued
The second question is also troubling: Where does 44 Liquormart leave
the matter of state regulatory interests (the second prong of the Central
Hudson test)?
A short (but not very satisfying) answer is that nothing has changed. Though
there was some evidence of an ulterior purpose to protect small liquor stores
from price competition, the Court accepted the state's claim that its true goal
was to promote temperance, and went on to invalidate the law on other grounds.
What remains for future litigation is an exceedingly troublesome issue partly
tested in Central Hudson itself, but never fully resolved. The
Central Hudson majority would have accepted New York's claimed need to
promote energy conservation as a basis for curbing lawful and non-deceptive
advertising.
Justices Blackmun and Brennan were deeply troubled, fearing the majority had
left "open the possibility that the State may suppress advertising of
electricity in order to lessen the demand for electricity." That prospect was
disturbing because it added a new factor to the grounds for distinguishing
commercial speech from other forms of expression.
That potential suppression also amounted (in Justice Blackmun's view) to "a
covert attempt by the State to manipulate the choices of its citizens, not by
persuasion or by direct regulation, but by depriving the public of the
information needed to make a free choice." And that, in turn, was akin to the
"highly paternalistic approach" the justices had found offensive in Virginia
Pharmacy.
Does 44 Liquormart shed light on the issue of acceptable regulatory
interests? Technically, the judgment does not affect that dimension of
Central Hudson, and thus preserves the specter that so troubled Justice
Blackmun. The Court simply accepted Rhode Island's assertions that temperance
was its goal, and that reducing drinking was a valid desideratum.
Yet 44 Liquormart contains enough of the old disdain for paternalism to
put regulators back on notice: "[A] state legislature does not have the broad
discretion to suppress truthful, nonmisleading information for paternalistic
purposes that the Posadas majority was willing to tolerate."
Thus, while this latest judgment does not technically reach or qualify
Central Hudson's troubling view of regulatory interests, it provides
the strongest ammunition in years with which to refute inferences of arguably
"paternalistic" government interests.
It will take at least another round of litigation before one can again speak confidently of the unfettered flow of truthful and nondeceptive information to consumers. But the prospect of a complete revival of Virginia Pharmacy's matrix is at least much closer than it has been in many years.
A third residual question also takes us back to the early days of commercial
speech: Does 44 Liquormart have any bearing on the issue of
"inherently deceptive and misleading" commercial speech?
From the start it has been clear that, unlike political or other pure speech,
advertising may be restrained because it deceives or misleads, and not only
because it is false. That distinction seemed innocent enough when first
propounded in Virginia Pharmacy. It would soon assume a more ominous
role.
Less than three years later, in Friedman v. Rogers, the Court accepted
Texas's claim that advertising optometric services under a trade name was
inherently "deceptive and misleading" and could thus be banned.
Justice Blackmun, sensing an early and serious inroad on the commercial speech
doctrine, dissented vigorously, arguing that the Texas rule "prohibits the
dissemination of truthful information about...wholly legal commercial conduct to
consumers and a public who have a strong interest in hearing it."
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