Rights Advocates Should Toast '44 Liquormart' Ruling
Alexander Volokh
Los Angeles Daily Journal, June 18, 1996
Recently, the Supreme Court struck down laws in Rhode Island and 10 other states
that barred retailers from advertising alcohol prices. The court's decision,
44 Liquormart v. Rhode Island, significantly expands protection for
commercial speech, especially "vice speech" -- commercial speech related to
cigarettes, alcohol, gambling, and the like.
The goal of the First Amendment isn't to protect speech everyone likes -- that
needs no protection. The First Amendment is primarily intended to protect
unpopular speech and let it compete freely in the "marketplace of ideas." The
44 Liquormart decision strikes a severe blow to attempts to regulate
"vice speech" for the "public benefit." Its influence was already felt on May
20, when the Supreme Court suggested that a Baltimore ban on billboard ads for
alcohol, which a lower court had upheld, may be unconstitutional.
But the decision will also affect cigarette advertising regulation. The Food
and Drug Administration is now proposing regulations which would, among other
things:
- Prohibit manufacturers from using a nontobacco product's trade name for a
tobacco product.
- Permit sponsorship of events in corporate name only, and only if the
corporate name already existed on January 1, 1995.
- Ban outdoor advertising within 1,000 feet of schools and playgrounds.
- Mandate that all remaining outdoor advertising, direct mail ads and print
ads in publications with youth readership over 15 percent, or 2 million, be
black-and-white and text-only.
- Create a $150 million per year industry-funded anti-tobacco educational
program.
Before May 13, these restrictions would have been judged according to the
test first articulated in the 1980 case Central Hudson Gas & Electric v.
Public Service Commission. Under Central Hudson, commercial speech
restrictions are permissible if they directly advance a substantial government
interest and are narrowly tailored to that interest.
The FDA regulations would probably fail that test. There is no evidence that
using nontobacco trade names on tobacco products is deceptive, misleading or
influences minors to smoke. The connection between underage smoking and brand-
name event sponsorship is tenuous -- and the connection between underage smoking
and event sponsorship by newly founded corporations (as opposed to established
corporations) is even more so.
As for schools, children see ads everywhere, and it is unlikely that advertising
near schools has a greater effect than advertising elsewhere. The black-and-
white text rule would probably also be struck down; the Supreme Court has noted
the "important communicative functions" of pictures in advertisements, and has
said that these illustrations are entitled to the same First Amendment
protections as verbal commercial speech. And the anti-tobacco advertising fund
provision would compel tobacco companies to advertise against themselves -- a
variety of compelled speech that the Supreme Court has held to be
unconstitutional.
But that was back then. If the regulations would have failed the Central
Hudson test, they are even less constitutional now. The difference between
the 44 Liquormart decision and existing law is mainly a difference in
attitude. But it's a crucial difference. Advertising is valuable speech, and
it's a reality that the FDA and others who would regulate advertising must come
to terms with.
Moreover, before 44 Liquormart, cigarette advertising, as "vice speech,"
would have been held to an even lower standard of First Amendment review than
other forms of commercial speech. In the 1986 case of Posadas de Puerto Rico
Assocs. v. Tourism Co., the Supreme Court upheld a Puerto Rico law banning
gambling advertising, even though gambling was legal in Puerto Rico. The
court's theory was that the greater power to ban gambling entirely must include
the lesser power to allow gambling but regulate its advertising.
All this may soon change. Recent Supreme Court cases, such as Coors v.
Rubin, which allowed beer companies to advertise alcohol content on beer
labels, had already moved toward greater First Amendment protection for "vice
speech." In 44 Liquormart, a plurality of justices would have overturned
Posadas -- in effect saying that the First Amendment has no "vice
exception" -- and a majority agreed that Posadas needed rethinking.
The FDA regulations may also be unconstitutional for other reasons. The
prohibition on sales to minors would exceed the federal government's power under
the Commerce Clause. So would the prohibition on vending machines, mail order
purchases, self-service displays, free samples, and sales of single cigarettes
or packs of under 20 cigarettes.
And is FDA tobacco regulation warranted at all? Congress has already delegated
tobacco regulation to other agencies; changing that should require new
legislation. More basically, adult smoking should be considered a free choice,
neither encouraged nor discouraged by government. Any public health regulation
should be supported by clear scientific evidence and limited to public places.
Any further regulation to curb underage smoking should be narrowly tailored to
that goal, without unduly burdening adults' rights (including the right to free
speech). These basic principles have yet to sink into the minds of our
politicians or the folks at the FDA.
Recent developments, like Philip Morris' toned-down regulation proposal -- which
includes some of the FDA's proposals, such as banning vending-machine sales and
restricting advertising near schools -- indicate that constitutionality aside,
the specter of regulation has tobacco companies running scared.
But for now, the bottom line is that the constitutional case against cigarette
advertising restrictions has been strengthened. For those who believe that
cigarettes are the devil, the 44 Liquormart decision will come as bad
news. But for those who think that regardless of the nation's smoking policy,
fundamental human rights -- including the right to free speech -- should be left
alone, there is cause to rejoice.
Alexander Volokh is a policy analyst at the Reason Foundation, a public
policy think tank based in Los Angeles.
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