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No. 94-1140

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44 LIQUORMART, INC. and PEOPLES SUPER LIQUOR STORES, INC., PETITIONERS v. RHODE ISLAND and RHODE ISLAND LIQUOR STORES ASSOCIATION

on writ of certiorari to the united states court of appeals for the first circuit

[May 13, 1996]

Justice Scalia, concurring in part and concurring in the judgment.

I share Justice Thomas's discomfort with the Central Hudson test, which seems to me to have nothing more than policy intuition to support it. I also share Justice Stevens' aversion towards paternalistic governmental policies that prevent men and women from hearing facts that might not be good for them. On the other hand, it would also be paternalism for us to prevent the people of the States from enacting laws that we consider paternalistic, unless we have good reason to believe that the Constitution itself forbids them. I will take my guidance as to what the Constitution forbids, with regard to a text as indeterminate as the First Amendment's preservation of "the freedom of speech," and where the core offense of suppressing particular political ideas is not at issue, from the long accepted practices of the American people. See McIntyre v. Ohio Elections Comm'n, 514 U. S. ___, ___ (1995) (Scalia, J., dissenting).

The briefs and arguments of the parties in the present case provide no illumination on that point; understandably so, since both sides accepted Central Hudson. The amicus brief on behalf of the American Advertising Federation et al. did examine various expressions of view at the time the First Amendment was adopted; they are consistent with First Amendment protection for commercial speech, but certainly not dispositive. I consider more relevant the state legislative practices prevalent at the time the First Amendment was adopted, since almost all of the States had free speech constitutional guarantees of their own, whose meaning was not likely to have been different from the federal constitutional provision derived from them. Perhaps more relevant still are the state legislative practices at the time the Fourteenth Amendment was adopted, since it is most improbable that that adoption was meant to overturn any existing national consensus regarding free speech. Indeed, it is rare that any nationwide practice would develop contrary to a proper understanding of the First Amendment itself--for which reason I think also relevant any national consensus that had formed regarding state regulation of advertising after the Fourteenth Amendment, and before this Court's entry into the field. The parties and their amici provide no evidence on these points.

Since I do not believe we have before us the wherewithal to declare Central Hudson wrong--or at least the wherewithal to say what ought to replace it--I must resolve this case in accord with our existing jurisprudence, which all except Justice Thomas agree would prohibit the challenged regulation. I am not disposed to develop new law, or reinforce old, on this issue, and accordingly I merely concur in the judgment of the Court. I believe, however, that Justice Stevens' treatment of the application of the Twenty First Amendment to this case is correct, and accordingly join Parts I, II, VII, and VIII of Justice Stevens' opinion.