44 Liquormart, Inc. V. Rhode Island - Opinion of The Court

Opinion of The Court

Justice Stevens, writing for the majority, reversed the First Circuit Court of Appeals. He stated first that it was a mistake to assume that commercial speech was not entitled to protection under the First Amendment. Relying heavily on the Court's decisions in Bigelow v. Virginia and Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., Stevens concluded that the Court's "early cases uniformly struck down several broadly based bans on truthful, nonmisleading commercial speech, each of which served ends unrelated to consumer protection.". He nonetheless noted, however, that the Court has at the same time recognized that states may regulate commercial advertising to a greater degree than non-commercial advertising.

While Stevens essentially reaffirmed the principle that states have a wider latitude to regulate commercial speech, he stated that Rhode Island had gone too far. Specifically, he stated that the Court has, in the past, been wary of the "dangers" of outright content-based bans on commercial speech. He further stated:

ans that target truthful, nonmisleading commercial messages rarely protect consumers from such harms. Instead, such bans often serve only to obscure an “underlying governmental policy” that could be implemented without regulating speech. In this way, these commercial speech bans not only hinder consumer choice, but also impede debate over central issues of public policy. —Justice Stevens, 44 Liquormart, 517 U.S. at 502-03

Having described the regulation as a "paternal" one, which assumes that the public will respond badly to the truth, the Stevens then went on to address Rhode Island's argument that it had "substantial interest" in promoting temperance." Stevens, however, did not give much weight to this argument, because the state provided no findings of fact showing that the ban actually did promote temperance.

Stevens further rejected Rhode Island's argument that because the facts supporting or opposing a conclusion that the total ban did, in fact, promote temperance could "go both ways," the First Circuit Court of Appeals was correct in deferring to the legislature. In rejecting the state's argument, Stevens called into question the Supreme Court's ruling in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, which was extremely deferential to the legislature.

Given our longstanding hostility to commercial speech regulation of this type, Posadas clearly erred in concluding that it was “up to the legislature” to choose suppression over a less speech-restrictive policy. The Posadas majority's conclusion on that point cannot be reconciled with the unbroken line of prior cases striking down similarly broad regulations on truthful, nonmisleading advertising when non-speech-relatedalternatives were available. —Justice Stevens, 44 Liquormart, 517 U.S. at 509-10

Finally, Stevens quickly rejected Rhode Island's contention that the Twenty-first Amendment gave the state the power to enforce the complete advertising ban. He conceded that that Amendment did give the state's greater ability to regulate alcohol without violating the dormant commerce clause, but that it did not "license the States to ignore their obligations under other provisions of the Constitution.”