Liquor Advertising
Generally speaking, as the decades
pass our courts and legislatures find more and more ways to
carve exceptions out of the First Amendment. Commercial advertising
is essentially the reverse. Way back in 1942 the Supreme Court
pronounced that commercial advertising is a form of expression
unprotected by the Constitution. But as the decades passed,
the Court backtracked and interpreted the First Amendment
to afford truthful advertising greater and greater degrees
of protection.
Still, commercial advertising —
speech that is primarily intended to prompt a business transaction
— is protected somewhat less than most other kinds of
expression. Even when completely truthful, government may
regulate advertising if doing so directly advances a substantial
public interest.
As one might guess, advertising for
alcoholic beverages has been one of the main targets, subject
to considerable state and federal regulation. But the Supreme
Court made it clear in two 1990s cases that while the states
have great latitude to control alcohol and how it is sold
and served, restrictions on liquor advertising may nevertheless
raise First Amendment concerns.
The first case was Rubin
v. Coors Brewing Co. Coors had applied to the Bureau
of Alcohol, Tobacco, and Firearms for approval of Coors labels
and ads that disclosed the alcohol content of its beer. The
application was rejected because a federal statute prohibited
public disclosure of beer's alcohol content. The government's
justification for the restriction was to prevent "strength
wars" among brewers. Competition based on alcohol strength
would lead to greater alcoholism, the government said.
Coors sued, claiming a violation of
its First Amendment right to advertise truthful information
about its product. The Court, in an opinion by Justice Clarence
Thomas, agreed that the government's health-and-welfare concerns
were substantial. But the Court said government failed to
demonstrate that its restriction would in fact directly advance
those concerns. To the contrary, the government's regulatory
scheme was irrational, the Court said. For example, while
the statute banned disclosure of alcohol content on beer labels,
it allowed and in some cases even required the disclosure
of alcohol content for wine and spirits. "If combating strength
wars were the goal, we would assume that Congress would regulate
disclosure of alcohol content for the strongest beverages
as well as for the weakest ones," Justice Thomas wrote. The
Court said the challenged restriction could not actually be
effective in preventing strength comparisons and alcoholism
because of the government's own, countervailing laws and regulations,
and therefore it violated the First Amendment.
In the second case, 44
Liquormart, Inc. v. Rhode Island, the issue was whether
the state could constitutionally prohibit advertising alcohol
prices. In an effort to promote temperance in the consumption
of alcohol, Rhode Island banned price advertising except at
the place of sale. The theory behind the ban was that it would
prevent public price wars, thereby minimizing discount shopping
and the purchase and consumption of added amounts of alcohol.
Seeking a ruling that the price-advertising ban was unconstitutional,
44 Liquormart sued. A unanimous Supreme Court indeed held
the price-advertising ban invalid. Rhode Island's restriction
was deemed overly broad. Alcohol consumption could be tempered
more directly and efficiently by setting minimum prices or
increasing sales taxes, the Court noted. Four justices went
even further and expressed nearly categorical hostility toward
any regulation that seeks to manipulate consumers' behavior
by keeping them in the dark about truthful, nonmisleading
information.
But while the Court was handing First
Amendment victories to brewers and liquor stores, the public
debate over alcoholic-beverage ads was intensifying. In 1996
the hard-liquor industry dropped it self-imposed ban on TV
advertising and began running spots on cable and on independent
stations. This raised the ire of public-interest groups concerned
about drinking among young people. The major TV networks,
under pressure from such groups, decided to keep their own,
voluntary bans on hard-liquor commercials — at least
for now.
Look for municipalities to be another
battleground over alcoholic-beverage ads as some cities seek
to ban billboards advertising these products within stipulated
distances from schools and parks.
