Letting People Decide for Themselves   

The U.S. Supreme Court makes a wise decision on commercial speech.

Can governments keep information from their citizens "for their own good?" A recent U.S. Supreme Court opinion says no.

Since 1956, Rhode Island has forbidden liquor stores to advertise the prices of alcoholic beverages. The state says that the prohibition "promotes temperance" by making it hard for consumers to locate and patronize vendors who sell the cheapest booze.

Two liquor retailers tried to skirt the law by running an advertisement listing low prices for snacks and mixers, along with pictures of rum and vodka bottles with the word "WOW" in large letters alongside. Their competitors complained to the state liquor control administration, which found that the ad's "implied reference" to low liquor prices violated the law and slapped the retailers with a fine. The two entrepreneurs then filed suit claiming that the statute violated their First Amendment rights.

Commercial speech has been a recognized exception to the general prohibition against government restrictions on free speech for more than 20 years.

Advertising that promotes illegal products or is deceptive is not protected by the First Amendment at all, but even truthful speech about legal products or services has been limited if a state can show that its regulations are narrowly tailored to advance a strong state interest.

For example, in 1986 the Supreme Court upheld a total ban on casino advertising aimed at Puerto Ricans, even though gambling was legal in Puerto Rico, and casinos were allowed to advertise to tourists. The court said that because the commonwealth had the authority to prohibit casino gambling entirely, its selective regulation of commercial speech promoting it was a less restrictive, and therefore acceptable, way to discourage its citizens from gambling.

Against this backdrop, a federal district court struck down the Rhode Island liquor price advertising ban in 1993, finding that it was unconstitutional because the state had failed to prove that the restriction on truthful speech actually reduced sales and advanced "temperance." But a year later, the U.S. Court of Appeals in Boston reversed that decision, ruling that the state's claim that the advertising ban discouraged consumption was a rational one.

In mid-May the Supreme Court overruled the appeals court. Justice John Paul Stevens' opinion in 44 Liquormart, Inc. v. Rhode Island concluded that while states do have an interest in protecting their citizens from misleading advertising or aggressive sales practices, they don't necessarily have an interest in protecting their citizens from themselves.

The court found that the exception to the First Amendment that permits governments to regulate commercial speech was designed to protect consumers from false advertising. The Rhode Island ban was suspect because it wasn't designed to ensure that customers received accurate information. Instead, it was a subterfuge: an attempt to limit drinking without taking an explicit action to prohibit it, thereby discouraging public debate on the issue.

"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," Stevens wrote. "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."

If Rhode Island wants to discourage people from purchasing alcohol, the court said, it can impose taxes, regulate prices, limit individual purchases or launch public education campaigns. Making such forthright moves would encourage public debate and would be more likely to promote temperance.

The state could even choose to ban alcohol sales entirely. But it can't have it both ways. If a state decides not to declare a product off- limits, it can't suppress truthful commercial speech about it in hopes of manipulating consumer behavior.

The opinion in 44 Liquormart has profound implications for government initiatives designed to regulate tobacco advertising.

Bans on cigarette promotion have long been touted as the least restrictive way to change behavior and to reduce tobacco consumption. But as Stevens' opinion makes clear, government regulation of speech is far more intrusive than regulation of conduct. Rather than justifying censorship based on paternalistic judgments about whether citizens can be trusted to make the "right" choices, states should let the information flow, and allow informed consumers to decide for themselves.

That's a good rule for the government to follow no matter what kind of speech is at stake. l