explaining that, “... parties cannot insist on strict scrutiny merely by asserting a First Amendment right that the court ultimately finds not to be violated,” and noting that, “.. in all cases commercial speech is entitled to only a limited measure of protection under a different standard of review”
How later courts described this case
- explaining that, “... parties cannot insist on strict scrutiny merely by asserting a First Amendment right that the court ultimately finds not to be violated,” and noting that, “.. in all cases commercial speech is entitled to only a limited measure of protection under a different standard of review”
- stating that A[i]n this case we have held the Mississippi law entirely legal under the First Amendment, and parties cannot insist on strict scrutiny merely by asserting a First Amendment right that the court ultimately finds not to be violated@
- stating that “[i]n this case we have held the Mississippi law entirely legal under the First Amendment, and parties cannot insist on strict scrutiny merely by asserting a First Amendment right that the court ultimately finds not to be violated”
- subjecting “the ‘fact’ findings of a trial "judge as to the .latest truths "in the social sciences” to the "clearly erroneous standard of review” is “[cjlearly not” appropriate
Written by the judges who cited it.
The opinion
JERRE S. WILLIAMS, Circuit Judge,
with whom
TATE, Circuit Judge, joins, specially concurring:
I.
I agree wholeheartedly with the result reached by the majority. I also am in full agreement with the Court’s reliance upon the test developed in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 566 , 100 S.Ct. 2343, 2351 , 65 L.Ed.2d 341 (1980). The application of this test properly leads us to the result reached by the majority.
It is with regret that I cannot join in the majority opinion, however, because of implications it sees in the Twenty-first Amendment. The majority opinion in Part II B discusses the Twenty-first Amendment as having implications justifying unusual and wholly unique intrusions upon the personal liberties of American citizens in the regulation of intoxicating liquor. I concede that there has been some indication of this possible effect of the Twenty-first amendment in California v. LaRue, 409 U.S. 109, 114 , 93 S.Ct. 390, 395 , 34 L.Ed.2d 342 (1972), and in *754 New York State Liquor Authority v. Bellanca, 452 U.S. 714, 717 , 101 S.Ct. 2599, 2601 , 69 L.Ed.2d 357 (1981). I view the doctrine as mischievous and insidious.
The purpose of the Twenty-first Amendment was to remove all constitutional inhibitions as to the state’s power to control intoxicating liquors as against the powers of the federal government, particularly but not exclusively in the domain of interstate and foreign commerce. It had nothing whatsoever to do with encroachment upon the individual liberties protected in the Constitution. The governments, state and federal, had exactly the same powers to control spirits after the passage of the Twenty-first Amendment as they had before, as against claims of individual liberty under free-speech, due process, and equal protection.
A conclusion that the Twenty-first Amendment justifies greater intrusions upon the constitutional liberties of individual citizens than would otherwise be the case is an insidious doctrine because it holds that the Constitution places liquor in a totally unique position different from even dangerous drugs and other vice-prone products or occupations.
The power to control the production, sale, advertising, and consumption of intoxicating beverages in ways different from controlling the same social processes as they relate to food products, automobiles, television sets, and the like is based wholly upon the recognition that spirits create special problems which entitle the state to react with special legislative solutions. This recognition has been with us from the beginning of our society right up to the present. It falls in the area of “police power,” if you will. It does not depend to any degree upon the Twenty-first amendment.
In recognizing the special problems related to liquor regulation, I have no difficulty whatsoever in agreeing with the cogent analysis of the majority opinion that the control of liquor advertising by the State of Mississippi does not run afoul of the constitutional protections of individual liberty. To hold otherwise exalts commercialism above the genuine concerns the State of Mississippi has a right to feel for its citizens, and the problems that liquor creates in our society.
II.
In one other matter I wish to reinforce the analysis in the majority opinion. The Court describes the “battle of the experts” on the question of whether advertising simply induces people to change brands of liquor or actually stimulates consumption. What this battle of the experts was actually asking us to do was to engage in the now outmoded substantive economic due process analysis. The fact that there was a battle of the experts on this issue proved that the issue was one of legislative policy. If the legislature of the State of Mississippi believes that liquor advertising increases liquor consumption, that is a legislative judgment that it has a right to make. And the fact that there may be some experts who think otherwise justifies testimony before the legislative committee considering the legislation but does not justify a demand that this Court resolve that policy decision. To treat this issue as subject to our power to decide would lapse into the now thoroughly discredited earlier Supreme Court due process analysis which is exemplified by the statement by the Court in the notorious Lochner v. State of New York case, 198 U.S. 45, 57 , 25 S.Ct. 539, 543 , 49 L.Ed. 937 (1905): “Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week.... There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health or the health of the individuals who are following the trade of a baker.”
It is not for the courts to tell the states that they no longer have power to place reasonable limitations upon the commercial aspects of businesses which the state properly feels create a high level of social concern. The states can ban the sale of liquor entirely, just as they can of dangerous drugs. They can limit the sale to state-owned package stores. They can ration. *755 They can prohibit all consumption of intoxicating beverages in public. They can engage in many types of regulations of varying stringency. To hold that one of those regulations cannot be a restriction on commercial exploitation by way of advertising would be a curious and unjustifiable anomaly.