[ O'Connor ]
[ Stevens ]
[ Scalia ]
|Syllabus ||Concurrence |
[ Thomas ]
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
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
Last Term 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. Rubin v. Coors Brewing Co., 514 U. S. ___, ___ (1995) (slip op., at 14). 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 and that it is not shielded from constitutional scrutiny by the Twenty first Amendment. [n.1]
In 1956, the Rhode Island Legislature enacted two separate prohibitions against advertising the retail price of alcoholic beverages. The first applies to vendors licensed in Rhode Island as well as to out of state manufacturers, wholesalers, and shippers. It prohibits them 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. [n.2] 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." [n.3]
In two cases decided in 1985, the Rhode Island Supreme Court reviewed the constitutionality of these two statutes. In S&S Liquor Mart, Inc. v. Pastore, 497 A. 2d 729 (R. I.), a liquor retailer located in Westerly, Rhode Island, a town that borders the State of Connecticut, having been advised that his license would be revoked if he advertised his prices in a Connecticut paper, sought to enjoin enforcement of the first statute. Over the dissent of one Justice, the court upheld the statute. It concluded that the statute served the substantial state interest in " `the promotion of temperance.' " [n.4] Id., at 737. Because the plaintiff failed to prove that the statute did not serve that interest, the court held that he had not carried his burden of establishing a violation of the First Amendment. In response to the dissent's argument that the court had placed the burden on the wrong party, the majority reasoned that the Twenty first Amendment gave the statute " `an added presumption [of] validity.' " S&S Liquor Mart, Inc. v. Pastore, 497 A. 2d, at 732. Although that presumption had not been overcome in that case, the State Supreme Court assumed that in a future case the record might "support the proposition that these advertising restrictions do not further temperance objectives." Id., at 734.
In Rhode Island Liquor Stores Assn. v. Evening Call Pub. Co., 497 A. 2d 331 (R. I. 1985), the plaintiff association [n.5] sought to enjoin the publisher of the local newspaper in Woonsocket, Rhode Island, from accepting advertisements disclosing the retail price of alcoholic beverages being sold across the state line in Millville, Massachusetts. In upholding the injunction, the State Supreme Court adhered to its reasoning in the Pastore case and rejected the argument that the statute neither "directly advanced" the state interest in promoting temperance, nor was "more extensive than necessary to serve that interest" as required by this Court's decision in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, 563 (1980). It assumed the existence of other, "perhaps more effective means" of achieving the State's "goal of temperance", but concluded that it was "not unreasonable for the State of Rhode Island to believe that price advertising will result in increased sales of alcoholic beverages generally." Rhode Island Liquor Stores Assn. v. Evening Call Pub. Co., 497 A. 2d, at 336.
Petitioners 44 Liquormart, Inc. (44 Liquormart), and Peoples Super Liquor Stores, Inc. (Peoples), are licensed retailers of alcoholic beverages. Petitioner 44 Liquormart operates a store in Rhode Island and petitioner Peoples operates several stores in Massachusetts that are patronized by Rhode Island residents. Peoples uses alcohol price advertising extensively in Massachusetts, where such advertising is permitted, but Rhode Island newspapers and other media outlets have refused to accept such ads.
Complaints from competitors about an advertisement placed by 44 Liquormart in a Rhode Island newspaper in 1991 generated enforcement proceedings that in turn led to the initiation of this litigation. The advertisement did not state the price of any alcoholic beverages. Indeed, it noted that "State law prohibits advertising liquor prices." The ad did, however, state the low prices at which peanuts, potato chips, and Schweppes mixers were being offered, identify various brands of packaged liquor, and include the word "WOW" in large letters next to pictures of vodka and rum bottles. Based on the conclusion that the implied reference to bargain prices for liquor violated the statutory ban on price advertising, the Rhode Island Liquor Control Administrator assessed a $400 fine.
After paying the fine, 44 Liquormart, joined by Peoples, filed this action against the administrator in the Federal District Court seeking a declaratory judgment that the two statutes and the administrator's implementing regulations violate the First Amendment and other provisions of federal law. The Rhode Island Liquor Stores Association was allowed to intervene as a defendant and in due course the State of Rhode Island replaced the administrator as the principal defendant. The parties stipulated that the price advertising ban is vigorously enforced, that Rhode Island permits "all advertising of alcoholic beverages excepting references to price outside the licensed premises," and that petitioners' proposed ads do not concern an illegal activity and presumably would not be false or misleading. 44 Liquour Mart, Inc. v. Racine, 829 F. Supp. 543, 545 (R. I. 1993). The parties disagreed, however, about the impact of the ban on the promotion of temperance in Rhode Island. On that question the District Court heard conflicting expert testimony and reviewed a number of studies.
In his findings of fact, the District Judge first noted that there was a pronounced lack of unanimity among researchers who have studied the impact of advertising on the level of consumption of alcoholic beverages. He referred to a 1985 Federal Trade Commission study that found no evidence that alcohol advertising significantly affects alcohol abuse. Another study indicated that Rhode Island ranks in the upper 30% of States in per capita consumption of alcoholic beverages; alcohol consumption is lower in other States that allow price advertising. After summarizing the testimony of the expert witnesses for both parties, he found "as a fact that Rhode Island's off premises liquor price advertising ban has no significant impact on levels of alcohol consumption in Rhode Island." Id., at 549.
As a matter of law, he concluded that the price advertising ban was unconstitutional because it did not "directly advance" the State's interest in reducing alcohol consumption and was "more extensive than necessary to serve that interest." Id., at 555. He reasoned that the party seeking to uphold a restriction on commercial speech carries the burden of justifying it and that the Twenty first Amendment did not shift or diminish that burden. Acknowledging that it might have been reasonable for the state legislature to "assume a correlation between the price advertising ban and reduced consumption," he held that more than a rational basis was required to justify the speech restriction, and that the State had failed to demonstrate a reasonable " `fit' " between its policy objectives and its chosen means. Ibid.
The Court of Appeals reversed. It found "inherent merit" in the State's submission that competitive price advertising would lower prices and that lower prices would produce more sales. 39 F. 3d 5, 7 (CA1 1994). Moreover, it agreed with the reasoning of the Rhode Island Supreme Court that the Twenty first Amendment gave the statutes an added presumption of validity. Id., at 8. Alternatively, it concluded that reversal was compelled by this Court's summary action in Queensgate Investment Co. v. Liquor Control Comm'n of Ohio, 459 U.S. 807 (1982). See 39 F. 3d, at 8. In that case the Court dismissed the appeal from a decision of the Ohio Supreme Court upholding a prohibition against off premises advertising of the prices of alcoholic beverages sold by the drink. See Queensgate Investment Co. v. Liquor Control Comm'n of Ohio, 69 Ohio St. 2d 361, 433 N. E. 2d 138 (1982).
Queensgate has been both followed and distinguished in subsequent cases reviewing the validity of similar advertising bans. [n.6] We are now persuaded that the importance of the First Amendment issue, as well the suggested relevance of the Twenty first Amendment, merits more thorough analysis than it received when we refused to accept jurisdiction of the Queensgate appeal. We therefore granted certiorari. 514 U. S. ___ (1995).
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 on their front pages, and town criers called out prices in public squares. See J. Wood, The Story of Advertising 21, 45-69, 85 (1958); J. Smith, Printers and Press Freedom 49 (1988). Indeed, commercial messages played such a central role in public life prior to the Founding that Benjamin Franklin authored his early defense of a free press in support of his decision to print, of all things, an advertisement for voyages to Barbados. Franklin, An Apology for Printers, June 10, 1731, reprinted in 2 Writings of Benjamin Franklin 172 (1907).
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 in the receipt of accurate information in the commercial market 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. See generally Kozinski & Banner, The Anti History and Pre-History of Commercial Speech, 71 Texas L. Rev. 747 (1993).
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. Id., at 825-826. The following Term in Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), we expanded on our holding in Bigelow and held that the State's blanket ban on advertising the price of prescription drugs violated the First Amendment.
Virginia Pharmacy Bd. 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. We explained:
"Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable." Id., at 765. [n.7]
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:
"There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this 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. If they are truly open, nothing prevents the `professional' pharmacist from marketing his own assertedly superior product, and contrasting it with that of the low cost, high volume prescription drug retailer. But the choice among these alternative approaches is not ours to make or the Virginia General Assembly's. 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." Id. at 770.
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. [n.8] Indeed, one of those cases expressly likened the rationale that Virginia Pharmacy Bd. employed to the one that Justice Brandeis adopted in his concurrence in Whitney v. California, 274 U.S. 357 (1927). See Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 (1977). There, Justice Brandeis wrote, in explaining his objection to a prohibition of political speech, that "the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression." Whitney, 274 U. S., at 377; see also Carey v. Population Services Int'l, 431 U.S. 678, 701 (1977) (applying test for suppressing political speech set forth in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)).
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 Pharmacy Bd., 425 U. S., at 772, n. 24, and that it may restrict some forms of aggressive sales practices that have the potential to exert "undue influence" over consumers. See Bates v. State Bar of Ariz., 433 U.S. 350, 366 (1977).
Virginia Pharmacy Bd. 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.
Subsequent cases explained that the State's power to regulate commercial transactions justifies its concomitant power to regulate commercial speech that is "linked inextricably" to those transactions. Friedman v. Rogers, 440 U.S. 1, 10, n. 9 (1979); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456 (1978) (commercial speech "occurs in an area traditionally subject to government regulation . . ."). As one commentator has explained: "The entire commercial speech doctrine, after all, represents an accommodation between the right to speak and hear expression about goods and services and the right of government to regulate the sales of such goods and services." L. Tribe, American Constitutional Law §12-15, p. 903 (2d ed. 1988). Nevertheless, as we explained in Linmark, the State retains less regulatory authority when its commercial speech restrictions strike at "the substance of the information communicated" rather than the "commercial aspect of [it]--with offerors communicating offers to offerees." See Linmark 431 U. S., at 96; Carey v. Population Services Int'l, 431 U.S. 678, 701, n. 28 (1977).
In Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557 (1980), we took stock of our developing commercial speech jurisprudence. In that case, we considered a regulation "completely" banning all promotional advertising by electric utilities. Ibid. 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.
Five Members of the Court recognized that the state interest in the conservation of energy was substantial, and that there was "an immediate connection between advertising and demand for electricity." Id., at 569. Nevertheless, they concluded that the regulation was invalid because the Commission had failed to make a showing that a more limited speech regulation would not have adequately served the State's interest. Id., at 571. [n.9]
In reaching its conclusion, the majority explained that although the special nature of commercial speech may require less than strict review of its regulation, special concerns arise from "regulations that entirely suppress commercial speech in order to pursue a nonspeech related policy." Id., at 566, n. 9. In those circumstances, "a ban on speech could screen from public view the underlying governmental policy." Ibid. As a result, the Court concluded that "special care" should attend the review of such blanket bans, and it pointedly remarked that "in recent years this Court has not approved a blanket ban on commercial speech unless the speech itself was flawed in some way, either because it was deceptive or related to unlawful activity." Ibid. [n.10]
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. See Rubin v. Coors Brewing Co., 514 U. S., at ___%___ (slip op., at 1-3) (Stevens, J., concurring in judgment).
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.
Sound reasons justify reviewing the latter type of commercial speech regulation more carefully. Most obviously, complete speech bans, unlike content neutral restrictions on the time, place, or manner of expression, see Kovacs v. Cooper, 336 U.S. 77, 89 (1949), are particularly dangerous because they all but foreclose alternative means of disseminating certain information.
Our commercial speech cases have recognized the dangers that attend governmental attempts to single out certain messages for suppression. For example, in Linmark, 431 U. S., at 92-94, we concluded that a ban on "For Sale" signs was "content based" and failed to leave open "satisfactory" alternative channels of communication; see also Virginia Pharmacy Bd., 425 U. S., at 771. Moreover, last Term we upheld a 30 day prohibition against a certain form of legal solicitation largely because it left so many channels of communication open to Florida lawyers. Florida Bar v. Went For It, Inc., 515 U. S. ___, ___%___ (1995) (slip op., at 15-16). [n.11]
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 Pharmacy Bd., 425 U. S., at 771, n. 24. 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 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. Discovery Network, Inc., 507 U.S. 410, 426 (1993). Yet bans that target truthful, nonmisleading commercial messages rarely protect consumers from such harms. [n.12] Instead, such bans often serve only to obscure an "underlying governmental policy" that could be implemented without regulating speech. Central Hudson, 447 U. S., at 566, n. 9. In this way, these commercial speech bans not only hinder consumer choice, but also impede debate over central issues of public policy. See id., at 575 (Blackmun, J., concurring in judgment). [n.13]
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. Linmark, 431 U. S., at 96. 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:
"The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment. See Virginia State Bd. of Pharmacy, supra, at 762." Edenfield v. Fane, 507 U.S. 761, 767 (1993).
See also Linmark, 431 U. S. at 96 (1977); Rubin v. Coors Brewing Co., 514 U. S., at ___ (Stevens, J., concurring in judgment); Tribe, American Constitutional Law §12-2, at 790, and n. 11.
In this case, there is no question that Rhode Island's price advertising ban constitutes a blanket prohibition against truthful, nonmisleading speech about a lawful product. There is also no question that the ban serves an end unrelated to consumer protection. Accordingly, we must review the price advertising ban with "special care," Central Hudson, 447 U. S., at 566, n. 9, mindful that speech prohibitions of this type rarely survive constitutional review. Ibid.
The State argues that the price advertising prohibition should nevertheless be upheld because it directly advances the State's substantial interest in promoting temperance, and because it is no more extensive than necessary. Cf. Central Hudson, 447 U. S., at 566. Although there is some confusion as to what Rhode Island means by temperance, we assume that the State asserts an interest in reducing alcohol consumption. [n.14]
In evaluating the ban's effectiveness in advancing the State's interest, we note that a commercial speech regulation "may not be sustained if it provides only ineffective or remote support for the government's purpose." Central Hudson, 447 U. S., at 564. For that reason, the State bears the burden of showing not merely that its regulation will advance its interest, but also that it will do so "to a material degree." Edenfield, 507 U. S., at 771; see also Rubin v. Coors Brewing Co., 514 U. S., at ___ (slip op., at 8-9). The need for the State to make such a showing is particularly great given the drastic nature of its chosen means--the wholesale suppression of truthful, nonmisleading information. Accordingly, we must determine whether the State has shown that the price advertising ban will significantly reduce alcohol consumption.
We can agree that common sense supports the conclusion that a prohibition against price advertising, like a collusive agreement among competitors to refrain from such advertising, [n.15] will tend to mitigate competition and maintain prices at a higher level than would prevail in a completely free market. Despite the absence of proof on the point, we can even agree with the State's contention that it is reasonable to assume that demand, and hence consumption throughout the market, is somewhat lower whenever a higher, noncompetitive price level prevails. However, without any findings of fact, or indeed any evidentiary support whatsoever, we cannot agree with the assertion that the price advertising ban will significantly advance the State's interest in promoting temperance.
Although the record suggests that the price advertising ban may have some impact on the purchasing patterns of temperate drinkers of modest means, 829 F. Supp., at 546, the State has presented no evidence to suggest that its speech prohibition will significantly reduce market wide consumption. [n.16] Indeed, the District Court's considered and uncontradicted finding on this point is directly to the contrary. Id., at 549. [n.17] Moreover, the evidence suggests that the abusive drinker will probably not be deterred by a marginal price increase, and that the true alcoholic may simply reduce his purchases of other necessities.
In addition, as the District Court noted, the State has not identified what price level would lead to a significant reduction in alcohol consumption, nor has it identified the amount that it believes prices would decrease without the ban. Ibid. Thus, the State's own showing reveals that any connection between the ban and a significant change in alcohol consumption would be purely fortuitous.
As is evident, any conclusion that elimination of the ban would significantly increase alcohol consumption would require us to engage in the sort of "speculation or conjecture" that is an unacceptable means of demonstrating that a restriction on commercial speech directly advances the State's asserted interest. Edenfield, 507 U. S., at 770. [n.18] Such speculation certainly does not suffice when the State takes aim at accurate commercial information for paternalistic ends.
The State also cannot satisfy the requirement that its restriction on speech be no more extensive than necessary. It is perfectly obvious that alternative forms of regulation that would not involve any restriction on speech would be more likely to achieve the State's goal of promoting temperance. As the State's own expert conceded, higher prices can be maintained either by direct regulation or by increased taxation. 829 F. Supp., at 549. Per capita purchases could be limited as is the case with prescription drugs. Even educational campaigns focused on the problems of excessive, or even moderate, drinking might prove to be more effective.
As a result, even under the less than strict standard that generally applies in commercial speech cases, the State has failed to establish a "reasonable fit" between its abridgment of speech and its temperance goal. Board of Trustees, State Univ. of N. Y. v. Fox, 492 U.S. 469, 480 (1989); see also Rubin v. Coors Brewing Co., 514 U. S., at ___ (slip op., at 15) (explaining that defects in a federal ban on alcohol advertising are "further highlighted by the availability of alternatives that would prove less intrusive to the First Amendment's protections for commercial speech"); Linmark, 431 U. S., at 97 (suggesting that the State use financial incentives or counter speech, rather than speech restrictions, to advance its interests). It necessarily follows that the price advertising ban cannot survive the more stringent constitutional review that Central Hudson itself concluded was appropriate for the complete suppression of truthful, nonmisleading commercial speech. Central Hudson, 447 U. S., at 566, n. 9.
The State responds by arguing that it merely exercised appropriate "legislative judgment" in determining that a price advertising ban would best promote temperance. Relying on the Central Hudson analysis set forth in Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U.S. 328 (1986), and United States v. Edge Broadcasting Co., 509 U. S. ___ (1993), Rhode Island first argues that, because expert opinions as to the effectiveness of the price advertising ban "go both ways," the Court of Appeals correctly concluded that the ban constituted a "reasonable choice" by the legislature. 39 F. 3d, at 7. The State next contends that precedent requires us to give particular deference to that legislative choice because the State could, if it chose, ban the sale of alcoholic beverages outright. See Posadas, 478 U. S., at 345-346. Finally, the State argues that deference is appropriate because alcoholic beverages are so called "vice" products. See Edge, 509 U. S. ___ (slip op., at ___); Posadas, 478 U. S., at 346-347. We consider each of these contentions in turn.
The State's first argument fails to justify the speech prohibition at issue. Our commercial speech cases recognize some room for the exercise of legislative judgment. See Metromedia, Inc. v. San Diego, 453 U.S. 490, 507-508 (1981). However, Rhode Island errs in concluding that Edge and Posadas establish the degree of deference that its decision to impose a price advertising ban warrants.
In Edge, we upheld a federal statute that permitted only those broadcasters located in States that had legalized lotteries to air lottery advertising. The statute was designed to regulate advertising about an activity that had been deemed illegal in the jurisdiction in which the broadcaster was located. 509 U. S., at ___ (slip op., at 14-15). Here, by contrast, the commercial speech ban targets information about entirely lawful behavior.
Posadas is more directly relevant. There, a five Member majority held that, under the Central Hudson test, it was "up to the legislature" to choose to reduce gambling by suppressing in state casino advertising rather than engaging in educational speech. Posadas, 478 U. S., at 344. Rhode Island argues that this logic demonstrates the constitutionality of its own decision to ban price advertising in lieu of raising taxes or employing some other less speech restrictive means of promoting temperance.
The reasoning in Posadas does support the State's argument, but, on reflection, we are now persuaded that Posadas erroneously performed the First Amendment analysis. The casino advertising ban was designed to keep truthful, nonmisleading speech from members of the public for fear that they would be more likely to gamble if they received it. As a result, the advertising ban served to shield the State's antigambling policy from the public scrutiny that more direct, nonspeech regulation would draw. See Posadas, 478 U. S., at 351 (Brennan, J., dissenting).
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 related alternatives were available. See Posadas, 478 U. S., at 350 (Brennan, J., dissenting) (listing cases); Kurland, Posadas de Puerto Rico v. Tourism Company: " `Twas Strange, `Twas Passing Strange; `Twas Pitiful, `Twas Wondrous Pitiful," 1986 S. Ct. Rev. 1, 12-15.
Because the 5 to 4 decision in Posadas marked such a sharp break from our prior precedent, and because it concerned a constitutional question about which this Court is the final arbiter, we decline to give force to its highly deferential approach. Instead, in keeping with our prior holdings, we conclude that a state legislature does not have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes that the Posadas majority was willing to tolerate. As we explained in Virginia Pharmacy Bd., "[i]t 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." 425 U. S., at 770.
We also cannot accept the State's second contention, which is premised entirely on the "greater includes the lesser" reasoning endorsed toward the end of the majority's opinion in Posadas. There, the majority stated that "the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling." 478 U. S., at 345-346. It went on to state that "because the government could have enacted a wholesale prohibition of [casino gambling] it is permissible for the government to take the less intrusive step of allowing the conduct, but reducing the demand through restrictions on advertising." Id., at 346. The majority concluded that it would "surely be a strange constitutional doctrine which would concede to the legislature the authority to totally ban a product or activity, but deny to the legislature the authority to forbid the stimulation of demand for the product or activity through advertising on behalf of those who would profit from such increased demand." Ibid. On the basis of these statements, the State reasons that its undisputed authority to ban alcoholic beverages must include the power to restrict advertisements offering them for sale.
In Rubin v. Coors Brewing Co., 514 U. S. ___ (1995), the United States advanced a similar argument as a basis for supporting a statutory prohibition against revealing the alcoholic content of malt beverages on product labels. We rejected the argument, noting that the statement in the Posadas opinion was made only after the majority had concluded that the Puerto Rican regulation "survived the Central Hudson test." 514 U. S., at ___, n. 2 (slip op., at 5, n. 2). Further consideration persuades us that the "greater includes the lesser" argument should be rejected for the additional and more important reason that it is inconsistent with both logic and well settled doctrine.
Although we do not dispute the proposition that greater powers include lesser ones, we fail to see how that syllogism requires the conclusion that the State's power to regulate commercial activity is "greater" than its power to ban truthful, nonmisleading commercial speech. Contrary to the assumption made in Posadas, we think it quite clear that banning speech may sometimes prove far more intrusive than banning conduct. As a venerable proverb teaches, it may prove more injurious to prevent people from teaching others how to fish than to prevent fish from being sold. [n.19] Similarly, a local ordinance banning bicycle lessons may curtail freedom far more than one that prohibits bicycle riding within city limits. In short, we reject the assumption that words are necessarily less vital to freedom than actions, or that logic somehow proves that the power to prohibit an activity is necessarily "greater" than the power to suppress speech about it.
As a matter of First Amendment doctrine, the Posadas syllogism is even less defensible. The text of the First Amendment makes clear that the Constitution presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct. That presumption accords with the essential role that the free flow of information plays in a democratic society. As a result, the First Amendment directs that government may not suppress speech as easily as it may suppress conduct, and that speech restrictions cannot be treated as simply another means that the government may use to achieve its ends.
These basic First Amendment principles clearly apply to commercial speech; indeed, the Posadas majority impliedly conceded as much by applying the Central Hudson test. Thus, it is no answer that commercial speech concerns products and services that the government may freely regulate. Our decisions from Virginia Pharmacy Bd. on have made plain that a State's regulation of the sale of goods differs in kind from a State's regulation of accurate information about those goods. The distinction that our cases have consistently drawn between these two types of governmental action is fundamentally incompatible with the absolutist view that the State may ban commercial speech simply because it may constitutionally prohibit the underlying conduct. [n.20]
That the State has chosen to license its liquor retailers does not change the analysis. Even though government is under no obligation to provide a person, or the public, a particular benefit, it does not follow that conferral of the benefit may be conditioned on the surrender of a constitutional right. See, e.g., Frost & Frost Trucking Co. v. Railroad Comm'n of Cal., 271 U.S. 583, 594 (1926). In Perry v. Sindermann, 408 U.S. 593 (1972), relying on a host of cases applying that principle during the preceding quarter century, the Court explained that government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially his interest in freedom of speech." Id., at 597. That teaching clearly applies to state attempts to regulate commercial speech, as our cases striking down bans on truthful, nonmisleading speech by licensed professionals attest. See, e.g., Bates v. State Bar of Ariz., 433 U. S., at 355; Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
Thus, just as it is perfectly clear that Rhode Island could not ban all obscene liquor ads except those that advocated temperance, we think it equally clear that its power to ban the sale of liquor entirely does not include a power to censor all advertisements that contain accurate and nonmisleading information about the price of the product. As the entire Court apparently now agrees, the statements in the Posadas opinion on which Rhode Island relies are no longer persuasive.
Finally, we find unpersuasive the State's contention that, under Posadas and Edge, the price advertising ban should be upheld because it targets commercial speech that pertains to a "vice" activity. The appellees premise their request for a so called "vice" exception to our commercial speech doctrine on language in Edge which characterized gambling as a "vice". Edge, 507 U. S., at ___ (slip op., at ___); see also Posadas, 478 U. S., at 346-347. The respondents misread our precedent. Our decision last Term striking down an alcohol related advertising restriction effectively rejected the very contention respondents now make. See Rubin v. Coors Brewing Co., 514 U. S., at ___, ___, n. 2.
Moreover, the scope of any "vice" exception to the protection afforded by the First Amendment would be difficult, if not impossible, to define. Almost any product that poses some threat to public health or public morals might reasonably be characterized by a state legislature as relating to "vice activity". Such characterization, however, is anomalous when applied to products such as alcoholic beverages, lottery tickets, or playing cards, that may be lawfully purchased on the open market. The recognition of such an exception would also have the unfortunate consequence of either allowing state legislatures to justify censorship by the simple expedient of placing the "vice" label on selected lawful activities, or requiring the federal courts to establish a federal common law of vice. See Kurland, 1986 S. Ct. Rev., at 15. For these reasons, a "vice" label that is unaccompanied by a corresponding prohibition against the commercial behavior at issue fails to provide a principled justification for the regulation of commercial speech about that activity.
From 1919 until 1933, the Eighteenth Amendment to the Constitution totally prohibited "the manufacture, sale, or transportation of intoxicating liquors" in the United States and its territories. Section 1 of the Twenty first Amendment repealed that prohibition, and §2 delegated to the several States the power to prohibit commerce in, or the use of, alcoholic beverages. [n.21] The States' regulatory power over this segment of commerce is therefore largely "unfettered by the Commerce Clause." Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138 (1939).
As is clear, the text of the Twenty first Amendment supports the view that, while it grants the States authority over commerce that might otherwise be reserved to the Federal Government, it places no limit whatsoever on other constitutional provisions. Nevertheless, Rhode Island argues, and the Court of Appeals agreed, that in this case the Twenty first Amendment tilts the First Amendment analysis in the State's favor. See 39 F. 3d, at 7-8.
In reaching its conclusion, the Court of Appeals relied on our decision in California v. LaRue, 409 U.S. 109 (1972). [n.22] In LaRue, five Members of the Court relied on the Twenty first Amendment to buttress the conclusion that the First Amendment did not invalidate California's prohibition of certain grossly sexual exhibitions in premises licensed to serve alcoholic beverages. Specifically, the opinion stated that the Twenty first Amendment required that the prohibition be given an added presumption in favor of its validity. See id., at 118-119. We are now persuaded that the Court's analysis in LaRue would have led to precisely the same result if it had placed no reliance on the Twenty first Amendment.
Entirely apart from the Twenty first Amendment, the State has ample power to prohibit the sale of alcoholic beverages in inappropriate locations. Moreover, in subsequent cases the Court has recognized that the States' inherent police powers provide ample authority to restrict the kind of "bacchanalian revelries" described in the LaRue opinion regardless of whether alcoholic beverages are involved. Id., at 118; see, e.g., Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). As we recently noted: "LaRue did not involve commercial speech about alcohol, but instead concerned the regulation of nude dancing in places where alcohol was served." Rubin v. Coors Brewing Co., 514 U. S., at ___, n. 2 (slip op., at 4, n. 2).
Without questioning the holding in LaRue, we now disavow its reasoning insofar as it relied on the Twenty first Amendment. As we explained in a case decided more than a decade after LaRue, although the Twenty first Amendment limits the effect of the dormant Commerce Clause on a State's regulatory power over the delivery or use of intoxicating beverages within its borders, "the Amendment does not license the States to ignore their obligations under other provisions of the Constitution." Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 712 (1984). That general conclusion reflects our specific holdings that the Twenty first Amendment does not in any way diminish the force of the Supremacy Clause, id., at 712; California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 112-114 (1980), the Establishment Clause, Larkin v. Grendel's Den, Inc., 459 U.S. 116, 122, n. 5 (1982), or the Equal Protection Clause, Craig v. Boren, 429 U.S. 190, 209 (1976). We see no reason why the First Amendment should not also be included in that list. Accordingly, we now hold that the Twenty first Amendment does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment. The Twenty first Amendment, therefore, cannot save Rhode Island's ban on liquor price advertising.
Because Rhode Island has failed to carry its heavy burden of justifying its complete ban on price advertising, we conclude that R. I. Gen. Laws §§3-8-7 and 3-8-8.1, as well as Regulation 32 of the Rhode Island Liquor Control Administration, abridge speech in violation of the First Amendment as made applicable to the States by the Due Process Clause of the Fourteenth Amendment. The judgment of the Court of Appeals is therefore reversed.
It is so ordered.
1 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).
2 Rhode Island Gen. Laws §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.
3 Rhode Island Gen. Laws §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.
4 "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.
5 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.
6 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.
8 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.
9 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.
10 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.
11 "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).
12 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.
13 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.
14 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 § 3-1-5 (1987).
15 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).
16 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.
17 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").
18 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.
19 "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).
20 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.
21 "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, §2.
22 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).