44 Liquormart, Inc., et al. v. Rhode Island et al. (94-1140), 517 U.S. 484 (1996).
[ O'Connor ]
[ Stevens ]
[ Scalia ]
[ Thomas ]
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No. 94-1140


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

[May 13, 1996]

Justice Thomas, concurring in Parts I, II, VI, and VII, and concurring in the judgment.

In cases such as this, in which the government's asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace, the balancing test adopted in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557 (1980), should not be applied, in my view. Rather, such an "interest" is per se illegitimate and can no more justify regulation of "commercial" speech than it can justify regulation of "noncommercial" speech.

In Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976), this Court held that speech that does " `no more than propose a commercial transaction' " was protected by the First Amendment, and struck down a ban on price advertising regarding prescription drugs. The Court asserted that a "particular consumer's interest in the free flow of commercial information" may be as keen as, or keener than, his interest in "the day's most urgent political

debate," id., at 763, and that "the proper allocation of resources" in our free enterprise system requires that consumer decisions be "intelligent and well informed." Id., at 765. The Court also explained that, unless consumers are kept informed about the operations of the free market system, they cannot form "intelligent opinions as to how that system ought to be regulated or altered." Ibid. See also id., at 765-766, nn. 19-20. [n.1] The Court sharply rebuffed the State's argument that consumers would make irresponsible choices if they were able to choose between higher priced but higher quality pharmaceuticals accompanied by high quality prescription monitoring services resulting from a "stable pharmacist customer relationshi[p]," id., at 768, on the one hand, and cheaper but lower quality pharmaceuticals unaccompanied by such services, on the other:

"[T]he State's protectiveness of its citizens rests in large measure on the advantages of their being kept in ignorance. The advertising ban does not directly affect professional standards one way or the other. It affects them only through the reactions it is assumed people will have to the free flow of drug price information.

. . . . .

"There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that information is not in itself harmful, that people will perceive their own best interests, if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. . . . It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us. . . . Virginia is free to require whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. But it may not do so by keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering. In this sense, the justifications Virginia has offered for suppressing the flow of prescription drug price information, far from persuading us that the flow is not protected by the First Amendment, have reinforced our view that it is." Id., at 769-770 (citation omitted).

The Court opined that false or misleading advertising was not protected, on the grounds that the accuracy of advertising claims may be more readily verifiable than is the accuracy of political or other claims, and that "commercial" speech is made more durable by its profit motive. Id., at 771, and n. 24. The Court also made clear that it did not envision protection for advertising that proposes an illegal transaction. Id., at 772-773 (distinguishing Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376 (1973)).

In case after case following Virginia Pharmacy Bd., the Court, and individual Members of the Court, have continued to stress the importance of free dissemination of information about commercial choices in a market economy; the antipaternalistic premises of the First Amendment; the impropriety of manipulating consumer choices or public opinion through the suppression of accurate "commercial" information; the near impossibility of severing "commercial" speech from speech necessary to democratic decisionmaking; and the dangers of permitting the government to do covertly what it might not have been able to muster the political support to do openly. [n.2]

In other decisions, however, the Court has appeared to accept the legitimacy of laws that suppress information in order to manipulate the choices of consumers--so long as the government could show that the manipulation was in fact successful. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557 (1980), was the first decision to clearly embrace this position, although the Court applied a very strict overbreadth analysis to strike down the advertising ban at issue. [n.3] In two other decisions, Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U.S. 328 (1986), and United States v. Edge Broadcasting, 509 U.S. 418 (1963), the Court simply presumed that advertising of a product or service leads to increased consumption; since, as in Central Hudson, the Court saw nothing impermissible in the government's suppressing information in order to discourage consumption, it upheld the advertising restrictions in those cases. Posadas, supra, at 341" 342; Edge, supra, at 425, 433-434.

The Court has at times appeared to assume that "commercial" speech could be censored in a variety of ways for any of a variety of reasons because, as was said without clear rationale in some post-Virginia Pharmacy Bd. cases, such speech was in a "subordinate position in the scale of First Amendment values," Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456 (1978); Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S. 469, 478 (1989); Florida Bar v. Went For It, Inc., 515 U. S. ___, ___ (1995) (slip op., at 4-5), or of "less constitutional moment," Central Hudson, supra, at 562-563, n. 5. But see Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 418-419 (1993) (rejecting this assertion); id., at 431 (Blackmun, J., concurring) (same). I do not see a philosophical or historical basis for asserting that "commercial" speech is of "lower value" than "noncommercial" speech. Indeed, some historical materials suggest to the contrary. See, e.g., ante, at 8 (citing Franklin's Apology for Printers); Ex parte Jackson, 96 U.S. 727, 733 (1878) (dictum that Congress could not, consistent with freedom of the press, prevent the circulation of lottery advertising through methods other than the United States mail); see also In re Rapier, 143 U.S. 110, 134-135 (1892) (continuing to assume that freedom of the press prevents Congress from prohibiting circulation of newspapers containing lottery advertisements); Lewis Publishing Co. v. Morgan, 229 U.S. 288, 315 (1913) (same); see generally Brief for American Advertising Federation et al. as Amici Curiae 12-24 (citing authorities for propositions that commercial activity and advertising were integral to life in colonial America and that Framers' political philosophy equated liberty and property and did not distinguish between commercial and noncommercial messages). Nor do I believe that the only explanations that the Court has ever advanced for treating "commercial" speech differently from other speech can justify restricting "commercial" speech in order to keep information from legal purchasers so as to thwart what would otherwise be their choices in the marketplace. [n.4]

I do not join the principal opinion's application of the Central Hudson balancing test because I do not believe that such a test should be applied to a restriction of "commercial" speech, at least when, as here, the asserted interest is one that is to be achieved through keeping would be recipients of the speech in the dark. [n.5] Application of the advancement of state interest prong of Central Hudson makes little sense to me in such circumstances. Faulting the State for failing to show that its price advertising ban decreases alcohol consumption "significantly," as Justice Stevens does, ante, at 19 (emphasis omitted), seems to imply that if the State had been more successful at keeping consumers ignorant and thereby decreasing their consumption, then the restriction might have been upheld. This contradicts Virginia Pharmacy Bd.'s rationale for protecting "commercial" speech in the first instance.

Both Justice Stevens and Justice O'Connor appear to adopt a stricter, more categorical interpretation of the fourth prong of Central Hudson than that suggested in some of our other opinions, [n.6] one that could, as a practical matter, go a long way toward the position I take. The State argues that keeping information about lower priced alcohol from consumers will tend to raise the total price of alcohol to consumers (defined as money price plus the costs of searching out lower priced alcohol, see Brief for Respondents 23), thus discouraging alcohol consumption. In their application of the fourth prong, both Justice Stevens and Justice O'Connor hold that because the State can ban the sale of lower priced alcohol altogether by instituting minimum prices or levying taxes, it cannot ban advertising regarding lower priced liquor. Although the tenor of Justice O'Connor's opinion (and, to a lesser extent, that of Justice Stevens' opinion) might suggest that this is just another routine case by case application of Central Hudson's fourth prong, the Court's holding will in fact be quite sweeping if applied consistently in future cases. The opinions would appear to commit the courts to striking down restrictions on speech whenever a direct regulation (i.e., a regulation involving no restriction on speech regarding lawful activity at all) would be an equally effective method of dampening demand by legal users. But it would seem that directly banning a product (or rationing it, taxing it, controlling its price, or otherwise restricting its sale in specific ways) would virtually always be at least as effective in discouraging consumption as merely restricting advertising regarding the product would be, and thus virtually all restrictions with such a purpose would fail the fourth prong of the Central Hudson test. This would be so even if the direct regulation is, in one sense, more restrictive of conduct generally. In this case, for example, adoption of minimum prices or taxes will mean that those who, under the current legal system, would have happened across cheap liquor or would have sought it out, will be forced to pay more. Similarly, a State seeking to discourage liquor sales would have to ban sales by convenience stores rather than banning convenience store liquor advertising; it would have to ban liquor sales after midnight, rather than banning advertising by late night liquor sellers; and so on.

The upshot of the application of the fourth prong in the opinions of Justice Stevens and of Justice O'Connor seems to be that the government may not, for the purpose of keeping would be consumers ignorant and thus decreasing demand, restrict advertising regarding commercial transactions--or at least that it may not restrict advertising regarding commercial transactions except to the extent that it outlaws or otherwise directly restricts the same transactions within its own borders. [n.7] I welcome this outcome; but, rather than "applying" the fourth prong of Central Hudson to reach the inevitable result that all or most such advertising restrictions must be struck down, I would adhere to the doctrine adopted in Virginia Pharmacy Bd. and in Justice Blackmun's Central Hudson concurrence, that all attempts to dissuade legal choices by citizens by keeping them ignorant are impermissible.

Although the Court took a sudden turn away from Virginia Pharmacy Bd. in Central Hudson, it has never explained why manipulating the choices of consumers by keeping them ignorant is more legitimate when the ignorance is maintained through suppression of "commercial" speech than when the same ignorance is maintained through suppression of "noncommercial" speech. The courts, including this Court, have found the Central Hudson "test" to be, as a general matter, very difficult to apply with any uniformity. [n.8] This may result in part from the inherently nondeterminative nature of a case by case balancing "test" unaccompanied by any categorical rules, and the consequent likelihood that individual judicial preferences will govern application of the test. [n.9] Moreover, the second prong of Central Hudson, as applied to the facts of that case and to those here, apparently requires judges to delineate those situations in which citizens cannot be trusted with information, and invites judges to decide whether they themselves think that consumption of a product is harmful enough that it should be discouraged. [n.10] In my view, the Central Hudson test asks the courts to weigh incommensurables-- the value of knowledge versus the value of ignorance--and to apply contradictory premises--that informed adults are the best judges of their own interests, and that they are not. Rather than continuing to apply a test that makes no sense to me when the asserted state interest is of the type involved here, I would return to the reasoning and holding of Virginia Pharmacy Bd. Under that decision, these restrictions fall.


1 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).

2 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).

3 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.

4 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.

5 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.

6 E.g., Cincinnati v. Discovery Network, 507 U. S., at 417, n. 13 (commercial speech restrictions impermissible if alternatives are "numerous" and obvious).

7 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.

8 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).

9 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 atone 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.

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