Rhode Island's Statutory Prohibition Against Advertising Accurate Information on Retail Prices of Al

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Justice steVens delivered the opinion of the court with respect to Parts i, ii, and Viii, and issued an opinion with respect to Parts iii and V, in which Justices kenneDy, souteR, and GinsBuRG join, an opinion with respect to Part Vi, in which Justices kenneDy, thoMAs, and GinsBuRG join, and an opinion with respect to part iV, in which Justices kenneDy and GinsBuRG join. last term [in Rubin v. coors Brewing co. ] we held that a federal law abridging a brewer’s right to provide the public with accurate information about the alcoholic content of malt beverages is unconstitutional. We now hold that Rhode island’s statutory prohibition against advertisements that provide the public with accurate information about retail prices of alcoholic beverages is also invalid. our holding rests on the conclusion that such an advertising ban is an abridgment of speech protected by the first Amendment. in 1956, the Rhode island legislature enacted two separate prohibitions against ad  vertising the retail price of alcoholic beverages. the first . . . prohibits [vendors] from “advertising in any manner whatsoever” the price of any alcoholic beverage offered for sale in the state; the only exception is for price tags or signs displayed with the merchandise within licensed premises and not visible from the street. the second statute applies to the Rhode island news media. it contains a categorical prohibition against the publication or broadcast of any advertisements — even those referring to sales in other states — that “make reference to the price of any alcoholic beverages.”

Advertising has been a part of our culture throughout our history. even in colonial days, the public relied on “commercial speech” for vital information about the market. early newspapers displayed advertisements for goods and services . . . , and town criers called out prices in public squares. . . . in accord with the role that commercial messages have long played, the law has developed to ensure that advertising provides consumers with accurate information about the availability of goods and services. in the early years, the common law, and later, statutes, served the consumers’ interest . . . by prohibiting fraudulent and misleading advertising. it was not until the 1970’s, however, that this court held that the first Amendment protected the dissemination of truthful and nonmisleading commercial messages about lawful products and services. in Bigelow v. Virginia, 421 u.s. 809 (1975), we held that it was error to assume that commercial speech was entitled to no first Amendment protection or that it was without value in the marketplace of ideas. the following term in Virginia Board of Pharmacy v. Virginia citizens consumer council, inc. , 425 u.s. 748 (1976), we . . . held that the state’s blanket ban on advertising the price of prescription drugs violated the first Amendment. Virginia Board of Pharmacy reflected the conclusion that the same interest that supports regulation of potentially misleading advertising, namely, the public’s interest in receiving accurate commercial information, also supports an interpretation of the first Amendment that provides constitutional protection for the dissemination of accurate and nonmisleading commercial messages. . . . the opinion further explained that a state’s paternalistic assumption that the public will use truthful, nonmisleading commercial information unwisely cannot justify a decision to suppress it. . . . on the basis of these principles, our early cases uniformly struck down several broadly based bans on truthful, nonmisleading commercial speech, each of which served ends unrelated to consumer protection. . . . At the same time, our early cases recognized that the state may regulate some types of commercial advertising more freely than other forms of protected speech. specifically, we explained that the state may require commercial messages to “appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent its being deceptive,” Virginia Board of Pharmacy, 425 u.s., at 772, and that it may restrict some forms of aggressive sales practices that have the potential to exert “undue influence” over consumers. Virginia Board of Pharmacy attributed the state’s authority to impose these regulations in part to certain “commonsense differences” that exist between commercial messages and other types of protected expression. 425 u. s., at 771, n. 24. our opinion noted that the greater “objectivity” of commercial speech justifies affording the state more freedom to distinguish false commercial advertisements from true ones, ibid., and that the greater “hardiness” of commercial speech, inspired as it is by the profit motive, likely diminishes the chilling effect that may attend its regulation, ibid. . . . in central hudson Gas & elec. corp.

Protection of Commercial Speech Under the First Amendment

We took stock of our developing commercial speech jurisprudence. in that case, we considered a regulation “completely” banning all promotional advertising by electric utilities. our decision acknowledged the special features of commercial speech but identified the serious first Amendment concerns that attend blanket advertising prohibitions that do not protect consumers from commercial harms.

As our review of the case law reveals, Rhode island errs in concluding that all commercial speech regulations are subject to a similar form of constitutional review simply because they target a similar category of expression. the mere fact that messages propose commercial transactions does not in and of itself dictate the constitutional analysis that should apply to decisions to suppress them. When a state regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information, the purpose of its regulation is consistent with the reasons for according constitutional protection to commercial speech and therefore justifies less than strict review. however, when a state entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the first Amendment generally demands. . . . the special dangers that attend complete bans on truthful, nonmisleading commercial speech cannot be explained away by appeals to the “commonsense distinctions” that exist between commercial and noncommercial speech. Virginia Board of Pharmacy, 425 u.s. at 771. Regulations that suppress the truth are no less troubling because they target objectively verifiable information, nor are they less effective because they aim at durable messages. As a result, neither the “greater objectivity” nor the “greater hardiness” of truthful, nonmisleading commercial speech justifies reviewing its complete suppression with added deference. ibid . it is in the state’s interest in protecting consumers from “commercial harms” that provides “the typical reason why commercial speech can be subject to greater governmental regulation than noncommercial speech.” cincinnati v. Discover y network, inc. , 507 u.s. 410, 426 (1993). yet bans that target truthful, nonmisleading commercial messages rarely protect consumers from such harms. instead, such bans often serve to obscure an “underlying government policy” that could be implemented without regulating speech. . . . Precisely because bans against truthful, nonmisleading commercial speech rarely seek to protect consumers from either deception or overreaching, they 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. that teaching applies equally to state attempts to deprive consumers of accurate information about their chosen products.

Whereas Justice stevens required the state to demonstrate “that the price advertising ban will significantly reduce alcohol consumption,” Justice sandra day o’Connor’s concurring opinion rejected his refinement of the test for commercial speech restrictions, finding that “because rhode island’s regulation fails even the less stringent standard set out in Central Hudson, nothing here requires adoption of a new analysis for the evaluation of commercial speech regulations” (517 u.s. at 532). in Greater New Orleans Broadcasting Association v. United States, the Court declined to resolve the question of whether the state must provide scientific evidence, because flaws in the state’s case rendered such an inquiry unnecessary. the Court found that Congress’s policy on gambling, which proscribed private casino advertising but promoted gambling on certain native american land and in state-run lotteries, was “so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it” (527 u.s. 173, 190 [1999]). in Coors Brewing, 44 Liquormart, and Greater New Orleans Broad  casting, the Court had signaled that it would not tolerate restrictions on truthful information that consumers wish to know. in 2001, the supreme Court reviewed Massachusetts regulations on tobacco advertising in Lorillard Tobacco Co. v. Reilly. the regulations pro-hibited outdoor advertising of tobacco products within 1,000 feet of a public playground or school. in addition, they required that retailers within 1,000 feet of a school or playground place advertisements for tobacco products at least 5 feet from the floor. While the Court held that the federal Cigarette Labeling and advertising act (fCLaa) (see chapter 6) preempted regulation of cigarette advertisements, smokeless tobacco and cigars are outside the act’s scope; the stage was thus set for a major first amendment ruling on tobacco advertising.