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
HIGGINBOTHAM, Circuit Judge,
concurring in the dissenting opinion:
I join Judge Gee’s dissent. I remain convinced that the panel decision was a correct application of the doctrine of commercial speech as developed by the Supreme Court. I take advantage of the freedom of dissent to add this brief separate statement to express a view I do not see clearly stated elsewhere.
The immediate turn of this case in the long view of constitutional principle has little significance. The case may be little more than how judges view whiskey, or how judges apply their own notions of what is a good and what is a bad law. This intended exaggeration is a sufficiently accurate description of this type of judicial review that we are hesitant to cheerfully admit engaging in it. The point is that the balancing of interests exercise of Virginia Board of Pharmacy and its younger companions reduces the exaggeration to an uncomfortable level.
The efficiency with which a market allocates resources unquestionably depends on a free flow of market information. I had supposed that it was the province of the Congress and particularly a state legislature to decide whether government ought to weigh into that free exchange; that is, I would not have thought it the role of the courts to quarrel with a state legislature’s regulatory pushes and shoves of its own economy.
Nevertheless, the cases instruct that we are to so review and I am reluctant to express my own doubts, which go to the very notion of commercial speech, by applying those cases in a less than faithful way. Doing so substitutes one brand of activism for another.
I agree with much of the majority opinion and much of Judge Williams’ concurring opinion but I suggest that hesitancy about the type of inquiry provoked by the commercial speech doctrine has affected the weighing of the state’s asserted interests. If the First Amendment is a source of protection for the flow of market information to consumers it is a remarkable draw upon First Amendment jurisprudence that turns that idea into a state’s right to keep information pertinent to a lawful transaction from consumers for fear that consumers might misapply it. Of course we are Lochnerizing and intruding into the affairs of a state. I suggest that distaste for the intrusion has created a reluctance in actual application to give full sway to the commercial speech doctrine as developed by the Supreme Court, and was an unidentified hand on the weighing scale of the majority; that it was this added weight which separated the majority and dissenting opinions.
It is hard for me to see that Mississippi has “won” this case. It can ban the advertising of whiskey, true enough, but only because federal judges answerable to no voters have decided that they “agree” with the Mississippi legislature. In the long haul this is no win at all. That seems to me to be a predictable, if not inevitable, consequence of the doctrine itself. This exaggerates, but it is sufficiently accurate that we ought to be troubled. I am.