Liquormart 44 v. Rhode Isand: FOOTNOTES

*fn1 Although the text of the First Amendment states that "Congress shall make no law . . . abridging the freedom of speech, or of the press," the Amendment applies to the States under the Due Process Clause of the Fourteenth Amendment. See Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853, 855, n. 1 (1982); Grosjean v. American Press Co., 297 U. S. 233, 244 (1936); Gitlow v. New York, 268 U. S. 652, 666 (1925).
*fn2 Rhode Island Gen. Laws Section(s) 3-8-7 (1987) provides:
"Advertising price of malt beverages, cordials, wine or distilled liquor.-No manufacturer, wholesaler, or shipper from without this state and no holder of a license issued under the provisions of this title and chapter shall cause or permit the advertising in any manner whatsoever of the price of any malt beverage, cordials, wine or distilled liquor offered for sale in this state; provided, however, that the provisions of this section shall not apply to price signs or tags attached to or placed on merchandise for sale within the licensed premises in accordance with rules and regulations of the department."
Regulation 32 of the Rules and Regulations of the Liquor Control Administrator provides that no placard or sign that is visible from the exterior of a package store may make any reference to the price of any alcoholic beverage. App. 2 to Brief for Petitioners.
*fn3 Rhode Island Gen. Laws Section(s) 3-8-8.1 (1987) provides:
"Price advertising by media or advertising companies unlawful.--No newspaper, periodical, radio or television broadcaster or broadcasting company or any other person, firm or corporation with a principal place of business in the state of Rhode Island which is engaged in the business of advertising or selling advertising time or space shall accept, publish, or broadcast any advertisement in this
state of the price or make reference to the price of any alcoholic beverages. Any person who shall violate any of the provisions of this section shall be guilty of a misdemeanor . . . ." The statute authorizes the liquor control administrator to exempt trade journals from its coverage. Ibid.
*fn4 "We also have little difficulty in finding that the asserted governmental interests, herein described as the promotion of temperance and the reasonable control of the traffic in alcoholic beverages, are substantial. We note, parenthetically, that the word `temperance' is oftentimes mistaken as a synonym for `abstinence.' It is not. Webster's Third New International Dictionary (1961) defines `temperance' as `moderation in or abstinence from the use of intoxicating drink.' The Rhode Island Legislature has the authority, derived from the state's inherent police power, to enact a variety of laws designed to suppress intemperance or to minimize the acknowledged evils of liquor traffic. Thus, there can be no question that these asserted interests are indeed substantial. Oklahoma Telecasters Association v. Crisp, 699 F. 2d at 500." S&S Liquor Mart, Inc. v. Pastore, 497 A. 2d, at 733-734.
In her dissent in Rhode Island Liquor Stores Assn. v. Evening Call Pub. Co., 497 A. 2d 331 (R. I. 1985), Justice Murray suggested that the advertising ban was motivated, at least in part, by an interest in protecting small retailers from price competition. Id., at 342, n. 10. This suggestion is consistent with the position taken by respondent Rhode Island Liquor Stores Association in this case. We, however, accept the State Supreme Court's identification of the relevant state interest served by the legislation.
*fn5 The plaintiff in that case is a respondent in this case and has filed other actions enforcing the price advertising ban. See id., at 333.
*fn6 In Dunagin v. Oxford, 718 F. 2d 738 (CA5 1983), the Fifth Circuit distinguished our summary action in Queensgate in considering the constitutionality of a sweeping state restriction on outdoor liquor advertising. The Court explained that Queensgate did not control because it involved a far narrower alcohol advertising regulation. Id., at 745-746. By contrast, in Oklahoma Telecasters Assn. v. Crisp, 699 F. 2d 490, 495-497 (CA10 1983), rev'd on other grounds sub nom., Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 697 (1984), the Tenth Circuit relied on Queensgate in considering a prohibition against broadcasting alcohol advertisements. The Court of Appeals concluded that Queensgate stood for the proposition that the Twenty-first Amendment gives the State greater authority to regulate liquor advertising than the First Amendment would otherwise allow. 699 F. 2d, at 495-497.
Other than the two Rhode Island Supreme Court decisions upholding the constitutionality of the statutes at issue in this case, only one published state court opinion has considered our summary action in Queensgate in passing on a liquor advertising restriction. See Michigan Beer & Wine Wholesalers Assn. v. Attorney General, 142 Mich. App. 294, 370 N. W. 2d 328 (1985). There, the Michigan Court of Appeals concluded that Queensgate did not control because it involved a far narrower restriction on liquor advertising than the one that Michigan had imposed. 142 Mich. App., at 304-305, 370 N. W. 2d, at 333-335.
*fn7 By contrast, the First Amendment does not protect commercial speech about unlawful activities. See Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U. S. 376 (1973).
*fn8 See Bates v. State Bar of Ariz., 433 U. S. 350, 355 (1977) (ban on lawyer advertising); Carey v. Population Services Int'l, 431 U. S. 678, 700 (1977) (ban on contraceptive advertising); Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 92-94 (1977) (ban on `For Sale' signs); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976) (ban on prescription drug prices); Bigelow v. Virginia, 421 U. S. 809, 825 (1975) (ban on abortion advertising). Although Linmark involved a prohibition against a particular means of advertising the sale of one's home, we treated the restriction as if it were a complete ban because it did not leave open "satisfactory" alternative channels of communication. 431 U. S., at 92-94.
*fn9 In other words, the regulation failed the fourth step in the four-part inquiry that the majority announced in its opinion. It wrote: "In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental
interest asserted, and whether it is not more extensive than is necessary to serve that interest." Central Hudson, 447 U. S., at 566.
*fn10 The Justices concurring in the judgment adopted a somewhat broader view. They expressed "doubt whether suppression of information concerning the availability and price of a legally offered product is ever a permissible way for the State to `dampen' the demand for or use of the product." Id., at 574. Indeed, Justice Blackmun believed that even "though `commercial' speech is involved, such a regulation strikes at the heart of the First Amendment." Ibid.
*fn11 "Florida permits lawyers to advertise on prime-time television and radio as well as in newspapers and other media. They may rent space on billboards. They may send untargeted letters to the general population, or to discrete segments thereof. There are, of course, pages upon pages devoted to lawyers in the Yellow Pages of Florida telephone directories. These listings are organized alphabetically and by area of specialty. See generally Rule 4-7.2(a), Rules Regulating The Florida Bar (`[A] lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, billboards, and other signs, radio, television, and recorded messages the public may access by dialing a telephone number, or through written communication not involving solicitation as defined in rule 4-7.4'); The Florida Bar: Petition to Amend the Rules Regulating The Florida Bar-Advertising Issues, 571 So 2d, at 461." Florida Bar v. Went For It, Inc., 515 U. S., at ___ (slip op., at 15-16).
*fn12 In Discovery Network, we held that the city's categorical ban on commercial newsracks attached too much importance to the distinction between commercial and noncommercial speech. After concluding that the aesthetic and safety interests served by the newsrack ban bore no relationship whatsoever to the prevention of commercial harms, we rejected the State's attempt to justify its ban on the sole ground that it targeted commercial speech. See 507 U. S., at 428.
*fn13 This case bears out the point. Rhode Island seeks to reduce alcohol consumption by increasing alcohol price; yet its means of achieving that goal deprives the public of their chief source of information about the reigning price level of alcohol. As a result, the State's price advertising ban keeps the public ignorant of the key barometer of the ban's effectiveness: The alcohol beverages' prices.
*fn14 Before the District Court, the State argued that it sought to reduce consumption among irresponsible drinkers. App. 67. In its brief to this Court, it equates its interest in promoting temperance with an interest in reducing alcohol consumption among all drinkers. See, e.g., Brief for Respondents 28. The Rhode Island Supreme Court has characterized the State's interest in "promoting temperance" as both "the state's interest in reducing the consumption of liquor," S&S Liquormart, Inc. v. Pastore, 497 A. 2d 729, 734 (1985), and the State's interest in discouraging "excessive consumption of alcoholic beverages." Id. at 735. A state statute declares the ban's purpose to be "the promotion of temperance and for the reasonable control of the traffic in alcoholic beverages." R. I. Gen. Laws Section(s) 3-1-5 (1987).
*fn15 See, e.g., Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 735 (1988) (considering restriction on price advertising as evidence of Sherman Act violation); United States v. Sealy, Inc., 388 U. S. 350, 355 (1967) (same); Blackburn v. Sweeney, 53 F. 3d 825, 828 (CA7 1995) (considering restrictions on the location of advertising as evidence of Sherman Act violation).
*fn16 The appellants' stipulation that they each expect to realize a $100,000 benefit per year if the ban is lifted is not to the contrary. App. 47. The stipulation shows only that the appellants believe they will be able to compete more effectively for existing alcohol consumers if there is no ban on price advertising. It does not show that they believe either the number of alcohol consumers, or the number of purchases by those consumers, will increase in the ban's absence. Indeed, the State's own expert conceded that "plaintiffs' expectation of realizing additional profits through price advertising has no necessary relationship to increased overall consumption." 829 F. Supp., at 549.
Moreover, we attach little significance to the fact that some studies suggest that people budget the amount of money that they will spend on alcohol. 39 F. 3d 5, 7 (CA1 1994). These studies show only that, in a competitive market, people will tend to search for the cheapest product in order to meet their budgets. The studies do not suggest that the amount of money budgeted for alcohol consumption will remain fixed in the face of a market-wide price increase.
*fn17 Although the Court of Appeals concluded that the
regulation directly advanced the State's interest, it did not dispute the District Court's conclusion that the evidence suggested that, at most, a price advertising ban would have a marginal impact on overall alcohol consumption. Id., at 7-8; cf. Michigan Beer & Wine Wholesalers Assn. v. Attorney General, 142 Mich. App., at 311, 370 N. W. 2d, at 336 (explaining that "any additional impact on the level of consumption attributable to the absence of price advertisements would be negligible").
*fn18 Outside the First Amendment context, we have refused to uphold alcohol advertising bans premised on similarly speculative assertions about their impact on consumption. See Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 715-716 (1984) (holding ban pre-empted by Federal Communications Commission regulations); California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980) (holding ban violated the Sherman Act). It would be anomalous if the First Amendment were more tolerant of speech bans than federal regulations and statutes.
*fn19 "Give a man a fish, and you feed him for a day. Teach a man to fish, and you feed him for a lifetime." The International Thesaurus of Quotations 646 (compiled by R. Tripp 1970).
*fn20 It is also no answer to say that it would be "strange" if the First Amendment tolerated a seemingly "greater" regulatory measure while forbidding a "lesser" one. We recently held that although the government had the power to proscribe an entire category of speech, such as obscenity or so-called fighting words, it could not limit the scope of its ban to obscene or fighting words that expressed a point of view with which the government disagrees. R. A. V. v. St. Paul, 505 U. S. 377 (1992). Similarly, in Cincinnati v. Discovery Network, Inc., 507 U. S. 410 (1993), we assumed that States could prevent all newsracks from being placed on public sidewalks, but nevertheless concluded that they could not ban only those newsracks that contained certain commercial publications. Id., at 428.
*fn21 "Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." U. S. Const., Amdt. 21, Section(s) 2.
*fn22 The State also relies on two per curiam opinions that followed the 21st Amendment analysis set forth in Larue. See New York State Liquor Authority v. Bellanca, 452 U. S. 714 (1981), and Newport v. Iacobucci, 479 U. S. 92 (1986).
*fn23 Accord, Virginia Pharmacy Bd., 425 U. S., at 780, n. 8 (Stewart, J., concurring) (information about price and products conveyed by advertising may stimulate thought and debate about political questions).
*fn24 See Linmark Associates, Inc. v. Township of Willingboro, 431 U. S. 85, 96-97 (1977); Bates v. State Bar of Ariz., 433 U. S. 350, 364-365, 368-369, 374-375, 376-377 (1977); Friedman v. Rogers, 440 U. S. 1, 8-9 (1979); id., at 23-24 (Blackmun, J., for two Justices, concurring in part and dissenting in part); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 561-562 (1980); id. at 566, n. 9; id., at 575 (Blackmun, J., joined by Brennan, J., concurring in judgment); id., at 581 (Stevens, J., also joined by Brennan, J., concurring in judgment); Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 79 (1983) (Rehnquist, J., for two Justices, concurring in judgment); Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 646 (1985); Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328, 350-351, 358 (1986) (Brennan, J., for three Justices, dissenting); Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 421-422, n. 17 (1993); id., at 432 (Blackmun, J., concurring); Edenfield v. Fane, 507 U. S. 761, 767, 770 (1993); United States v. Edge Broadcasting Co., 509 U. S. 418, 437-439, and nn. 1, 3, 4 (1993) (Stevens, J., for two Justices, dissenting); Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U. S. ___, ___ (1994) (slip op., at 5-7); Rubin v. Coors Brewing Co., 514 U. S. ___ (1995) (slip op., at 4-5); id., at ___, ___ (Stevens, J., concurring in judgment) (slip op., at 1-3, 7-8); Florida Bar v. Went For It, Inc., 515 U. S. ___ (1995) (Kennedy, J., for four Justices, dissenting) (slip op., at 5-6, 10-11).
*fn25 The Court found that although the total effect of the advertising ban would be to decrease consumption, the advertising ban impermissibly extended to some advertising that itself might not increase consumption. Central Hudson, supra, at 569-571.
*fn26 As noted above, the asserted rationales for differentiating "commercial" speech from other speech are (1) that the truth of "commercial" speech is supposedly more verifiable, and (2) that "commercial speech, the offspring of economic self-interest" is
supposedly a "hardy breed of expression that is not particularly susceptible to being crushed by overbroad regulation." Central Hudson, supra, at 564, n. 6 (internal quotation marks omitted). The degree to which these rationales truly justify treating "commercial" speech differently from other speech (or indeed, whether the requisite distinction can even be drawn) is open to question, in my view. See Kozinski & Banner, Who's Afraid of Commercial Speech, 76 Va. L. Rev. 627, 634-638 (1990) (questioning basis for drawing distinction); id., at 638-650 (questioning coherence of distinction). In any event, neither of these rationales provides any basis for permitting government to keep citizens ignorant as a means of manipulating their choices in the commercial or political marketplace.
*fn27 In other words, I do not believe that a Central Hudson-type balancing test should apply when the asserted purpose is like the one put forth by the government in Central Hudson itself. Whether some type of balancing test is warranted when the asserted state interest is of a different kind is a question that I do not consider here.
*fn28 E.g., Cincinnati v. Discovery Network, 507 U. S., at 417, n. 13 (commercial speech restrictions impermissible if alternatives are "numerous" and obvious).
*fn29 The two most obvious situations in which no equally effective direct regulation will be available for discouraging consumption (and thus, the two situations in which the Court and I might differ on the outcome) are: (1) When a law directly regulating conduct would violate the Constitution (e.g., because the item is constitutionally protected), or (2) when the sale is to occur outside the State's borders.
As to the first situation: Although the Court's application of the fourth prong today does not specifically foreclose regulations or bans of advertising regarding items that cannot constitutionally be banned, it would seem strange to hold that the government's power to interfere with transmission of information regarding these items, in order to dampen demand for them, is more extensive than its power to restrict, for the same purpose, advertising of items that are not constitutionally protected. Cf. Bigelow v. Virginia, 421 U. S. 809, 822 (1975).
As to the second situation: When a State seeks to dampen consumption by its citizens of products or services outside its borders, it does not have the option of direct regulation. Here, respondent correctly points out that alternatives such as taxes will not be effective in discouraging sales to Rhode Island residents of lower priced alcohol outside the State, see Brief for Respondent Rhode Island Liquor Stores Association 27; yet the Court strikes down the ban against price advertising even as applied to out-of-state liquor sellers such as petitioner Peoples Super Liquor Stores. Perhaps Justice Stevens and Justice O'Connor would distinguish a situation in which a State had actually banned sales of lower priced alcohol within the State and had then, through a ban of advertising by out-of-state sellers, sought to keep residents ignorant of the fact that lower priced alcohol was legally available in other States. Cf. Edge, supra. See ante, at 22-23.
The outcome in Edge may well be in conflict with the principles espoused in Virginia Pharmacy Bd. and ratified by me today. See Edge, 509 U. S., at 436-439 (Stevens, J., dissenting). (In Edge, respondent did not put forth the broader principles adopted in Virginia Pharmacy Bd., but rather argued that the advertising restriction did not have a sufficiently close fit under Central Hudson.) Because the issue of restrictions on advertising of products or services to be purchased legally outside a State that has itself banned or regulated the same purchases within the State is not squarely presented in this case, I will not address here whether the decision in Edge can be reconciled with the position I take today.
*fn30 See, e.g., Kozinski & Banner, 76 Va. L. Rev., at 630-631 (citing cases); Wright, Freedom and Culture: Why We Should Not Buy Commercial Speech, 72 Denv. U. L. Rev. 137, 162-166 (1994) (citing cases); Kaskove, New York State Association of Realtors, Inc. v. Shaffer: When the Second Circuit Chooses Between Free Speech and Fair Housing, Who Wins?, 61 Brooklyn L. Rev. 397, 409-410, and nn. 71, 73, 418 (1995); Note, Dunagin v. City of Oxford: Mississippi's Suppression of Liquor Advertising, 63 Detroit L. Rev. 175, 184-187 (1985); Faille, Spinning the Roulette Wheel: Commercial Speech and Philosophical Cogency, Fed. B. N. & J. (1994), pp. 58, 60-62; Margulies, Connecticut's Free Speech Clauses: A Framework and an Agenda, 65 Conn. Bar J. 437, 440, n. 20 (1991) (citing cases).
*fn31 The third prong of Central Hudson is far from a mechanical one. In Posadas, Edge, and other cases, the Court has presumed that advertising bans decrease consumption. Here, by contrast, the principal
opinion demands proof of a "significant" decrease in consumption, and finds it lacking. But petitioners' own expert testified at one point that, taking into account disposable income, price was a "potent" influence on alcohol consumption, see App. 79; and the American Medical Association had apparently concluded that advertising of alcohol in general increased total alcohol consumption sufficiently to make a ban on advertising worthwhile, see 44 Liquor Mart, Inc. v. Racine, 829 F. Supp. 543, 548 (DRI 1993). A court more inclined to uphold the ban here could have pointed to these facts in support.
The courts have also had difficulty applying the fourth prong because the outcome has depended upon the level of generality with which the interest was described. See Faille, supra, at 58, 60. If today's strict application of the fourth prong survives, it will clarify the prong's application in a large number of cases, since, as noted above, it will simply invalidate most restrictions in which the government attempts to manipulate consumption through enforced ignorance rather than through direct regulation.

*fn32 See ante, at 28 (noting that scope of any "vice" category of products would be difficult to define).

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