# Petition — Capital Cities Cable, Inc. v. Crisp > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0896%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 691 ## Text Office-Sunreme Court, U.S. rites 82-1795 MAY 3 1993 No. IN THE Supreme Court of the Wuited States OCTOBER TERM, 1982 CAPITAL CITIES CABLE, INC.; CoX CABLE OF OKLAHOMA CITY, INC.; MULTIMEDIA CABLEVISION, INC.; AND SAMMONS COMMUNICATIONS, INC., : Petitioners, V. RICHARD A. CRISP, DIRECTOR, OKLAHOMA ALCOHOLIC BEVERAGE CONTROL BOARD, Respondent, PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Of Counsel: TIMOTHY B. Dyk * JOHN W. ZUCKER WILMER, CUTLER & PICKERING 1666 Kk Street, N.W, Washington, D.C. 20006 (202) 872-6000 CLYDE A. MUCHMORE CROWE & DUNLEVY 1800 Mid-America Tower 20 North Broadway Oklahoma City, OK 73102 Counsel for Petitioner Capital Cities Cable, Inc. JOHN D. MATTHEWS * DAVID P. FLEMING J. CHRISTOPHER REDDING Dow, LOHNES & ALBERTSON 1225 Connecticut Ave., N.W. Washington, D.C. 20036 (202) 862-8079 Counsel for Petitioners Cox Cable of Oklahoma City, Inc.; Multimedia Cablevision, Inc.: and Sammons Communica- tions, Ine. May 3, 1983 * Counsel of Record CS WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 QUESTIONS PRESENTED 1. Whether a State, consistent with the protection of commercial speech under the First and Fourteenth Amendments, may adopt a sweeping ban on truthful, non-misleading advertising for a lawful product. 2. Whether a State, consistent with the First and Fourteenth Amendments, may prevent cable television op- erators from carrying out-of-state news and entertain- ment programs because those programs contain truthful, non-misleading advertising for wine. - (i) ii PARTIES TO THE PROCEEDING BELOW The following were parties to the proceeding (No. 82- 1061) in the United States Court of Appeals for the Tenth Circuit: Cablecom-General, Inc. (now Capital Cities Cable, Inc.), Cox Cable of Oklahoma City, Inc., Multimedia Cablevision, Inc., and Sammons Communi- cations, Inc., appellees, and Richard A. Crisp, Director, Oklahoma Alcoholic Beverage Control Board, appellant.* * Petitioners construe the terms “parent companies,” “subsidi- aries,” and “affiliates” in Rule 28.1 of the Rules of this Court to mean those corporations (1) the shares of which are publicly traded; (2) in the case of “parent companies,” which own a ma- jority of the shares of a party; and (3) in the case of “subsidiaries” and “affiliates,” a majority of the shares of which are owned by a party. With the terms so defined, petitioner Capital Cities Cable, Inc., has a parent company, Capital Cities Communications, Inc.. and no subsidiaries or affiliates; petitioner Multimedia Cablevision, Inc., has a parent company, Multimedia, Inc., and no subsidiaries or affiliates; petitioner Cox Cable of Oklahoma City, Inc., has a parent company, Cox Communications, Inc., and no subsidiaries or affiliates; and petitioner Sammons Communications, Inc., has no parent, subsidiaries, or affiliates. TABLE OF CONTENTS Page ee Oe io vo vvcsccinccpsancccdnncanecesnccerace i PARTIES TO THE PROCEEDING BELOV ............... ii ee 8 a gS go” SERIES ie Re eee pine iv OPINIONS BELOW ............... pA) dR eM CONN Oe 1 Os canada eiesee ndescnemns 2 CONSTITUTIONAL PROVISIONS, STATUTES, AND ee ING PROVO VD connie cnccscseeececeecsc...... yt 2 STATEMENT OF THE CASE ................ Rie biggie 2 Pee CEG FYOCOBCINNS —...c.........-..ccccscese-cecsescnnons- q Be ss ecsmncbecnecauneeeis 9 REASONS FOR GRANTING THE WRIT ............-00----- 11 I. THE COURT BELOW HAS DECIDED AN IMPORTANT CONSTITUTIONAL QUESTION CONCERNING THE PROTECTION OF COM- MERCIAL SPEECH IN CONFLICT WITH DECISIONS OF THIS COURT AND CON- TRARY TO THE OPINION OF ANOTHER ee ea ms 11 Il. THE COURT BELOW HAS DECIDED AN IMPORTANT CONSTITUTIONAL QUESTION CONCERNING THE® PROTECTION OF NON- COMMERCIAL SPEECH IN CONFLICT WITH DECISIONS OF THIS COURT ............ 18 25 CAINCULAMON 2. i mare snes iv TABLE OF AUTHORITIES Cases: Page Abrams v. United States, 250 U.S. 616 (1919)........ 22 Bates xv. State Bar of Avena, 438 U.S. 350 eee ee 12, 13, 14 Bigelow Vv. Virginia, 421 U.S. 809 (1975) .............. passim Board of Education v. Pico, 50 U.S.L.W. 4831 (U.S. ee oe ee 22 EBuckicy o. Valeo, 424 U.S. 1 (1976) _.......... 22 Butler v. Michigan, 352 U.S. 380 (1957) _............... 24 California v. LaRue, 409 U.S. 109 (1972) .............. 15 California Retail Liquor De alors Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97 (1980) .................... 16 Carey v. Population Services International, 431 Mae ee OP 12, 13 Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) .......... passim Columbia Broudcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973) ............ 20, 23 Community Communications Co. v. City of Boulder, 660 F.2d 1370 (10th Cir. 1981), petiton for cert. dismissed by agreement, 102 S.Ct. 2287 (1982). 21 Cratg wv. Koren, 429 US. 190 (1976) ..................... 5 Dunagin rv. City of Oxford. 701 F.2d 335, reh’q en banc ordered (5th Cir. March 11, 1983) ........... , 15,18 Bivod v. Burns, 427 US. 347 (1976) rs Epperson v. Arkansas, 393 U.S. 97 (1968) _.. 22 Griswold v. Connecticut, 381 U.S. 479 (1965)........ 22 Grosjean v. American Press Co., 297 U.S. 233 ORO . 20.35 Home Bor Office. Inc. v. FCC, 567 F.2d 9 (D.C. Cir.), cert. denied, 434 U.S. 829 (1977) .... 21 Pave Frenus S56 U5. 412 (1978)... 23, 24 Pa ve RAJ... 102 &. Ce 929 (1982)... 12 13, 16 Jamison v. Texas, 318 U.S. 413 (19738) . 23 Joseph Burstyn Ine. v. Wilson, 343 US. 295 Soe 20 Lamar Outdoor Advertising, Inc. v. Missisippi State Commission, 701 F.2d 314, reh’g en banc ordered (Sth Cir. March 11, 1988) ..............15, 177,18 TABLE OF AUTHORITIES—Continued Larkin v. Grendel’s Den, Inc., 51 U.S.L.W. 4025 Se ae i ae Loui isiana ex rel, Gremillion v’ . NAACP, 366 US. “293 Re ee. Moda v. Bradiey, 492 US. 178 (1977) Martin v. City of Struthers, 319 U.S. 141 (1943). Metromedia, Inc. v. City of San Diego, 153 U.S. 190 OO 8, Miami Herald Publishing Co. v. Tornillo, 418 U.S. eee Cees Midwest Video Corp. v. FCC, 571 F.2d 1025 (8th Cir. 1978), aff'd, 440 U.S. 689 (1979) Minneapolis Star & Tribune Co. v. Minnesota Com- missioner of Revenue. 51 U.S.L.W. 4315 (US. mere Sr ee Murdock v : Femme TaN, 319 U.S. 105 (1948) _. NAACP v. Alabama, 357 U - aay (i9Ge) National Scala ac Co, v. FCC, 516 F.2d 1101. vacated, 516 F.2d 1180 (D.C. Cir. 1974), cert. denied, 424 U.S. 910 Prete? New York State Liq luthority v. Bellanca, 452 U.S. 714 (1981), e« ¢. denied, 102 S. Ct.. 2296 eee New York Times v. Sullivan, 376 U.S. 254 (1964).. "| Ohralik v. Ohio State Bar Association, 436 U. G47 (90a) SOL ONG SEES SMR CeO Par ESA Oklahoma Alcoholic Beverage Control Board r. Heublein Wines, 566 P.2d 1158 (Okla. 1977) _. Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 876 (1973) Queensgate Investment Co. v. Liquor Control Com- mission, 133 N.E.2d 138 (Ohio). appeal dis- missed, 103 S. Ct. 31 (1982) ..... AE Rn NS Queensgate Investment Co, v. Liquor Control Com. mission, 103 S. Ct. 31 figees a. 10, Saia v. New York, 334 U.S. 558 (1948) Schneider v. State, 308 U.S. 147 (ieee) 2a 14, vi TABLE OF AUTHORITIES—Continued Page Smith v. California, 361 U.S. 147 (1959) .............. 24 Stanley v. Georgia, 394 U.S. 557 (1969) .....000000..... 24 Straus Communications, Inc. v. FCC, 530 F.2d BO RR te TY ori 18 Teleprompter Corp. v. Columbia Broadcasting seetem, fac., 415 U.S. 804 (1974) _........0... 21 Valentine v. Chrestensen, 316 U.S. 52 (1932)........ 12, 23 Virginia State Board of Pharmacy v. Virginia Citi- zens Consumer Council, 425 U.S. 748 (1976)..12, 18, 14 Wisconsin v. Constantineau, 400 U.S. 4383 (1971).. 15, 16 Administrative Decisions and Reports: Cable Television Report and Order, 36 F.C.C.2d tOe Clee ee Garland B. Pugh, 68 F.C.C.2d 997 (1978) ............ Notice of Proposed Rulemaking and Notice of In- quiry in Docket 18397, 15 F.C.C.2d 417 (1968).. 5 WAPA-TV Broadcasting Corp., 59 F.C.C.2d 263 >) Bor) (ere Bcc, OS ORO A TE: 5 Advisory Opinions: Op. Okla. Att’y Gen. No. 76-348 (November 24, ere A nse 4 Op. Okla. Att’y Gen. No. 79-334 (March 19, RO oe a EA Ree 4,5 Constitutional Provisions: Constitution of the United States of America ee 7 eee 7 ee ee passim Fourteenth Amendment .................. Lech. pa Twenty-ares Amendment ................................ passim Constitution of the State of Oklahoma re ee Oe i passim vii TABLE OF AUTHORITIES—Continued Statutory Provisions: kt Us. § 213 0C) (3) Coupp. V 1961) _........... 28 U.S.C. § 1254(1) (1976 & Supp. IV 1980).... oe Aaa, & fool (1976 & Supp. V 1981) _........ 28 U.S.C. § 1348 (1976 & Supp. V 1981) ............ me Ue, 20 (Sano ¥ 1981) a2 U.S. $1968 (Sane. TV 1980) ............. Okla. Stat,/Ann. tit. 37, $506(8) (1981) .............. Cita. Stat: Ann. tit. $7, $516 (1981) .......... Regulations: ae o. Granor? flee) me (6 mee ieor-o. 6 (ieee) Congressional Materials: H.R. Rep. No. 1476, 94th Cong., 2d Sess. 89 Pier? 2 ee ea Na: Publications: C. Burck, Changing Habits in American Drinking, Poruene. (oer oie... Cable and Station Coverage Atlas (1982) _............ Comment, Access to Cable Television: A Critique of the Affirmative Duty Theory of the First Amendment, 70 Cal. L. Rev. 1393 (1982) _.......... Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1305 (1970)... Multichannel News, March 28, 1983 _....... Sa SEI Note, Cable Television and the First Amendment. 71 Colum. L. Rev. 1008 (1971) ......... SUL aS Note, FCC Regulation of Cable Television Content, my peers Ly ey. Soe (i978) ....... D. Pittman, Primary Prevention of Alcohol Abuse and Alcoholism: An Evaluation of the Control of Consumption Policy (Social Science Institute of Washington University, 1981) _............__. R. Wilkinson, The Prevention of Drinking Prob- er fier 'U 9 Q © to NIAAA oO — passim Io tO 14 18 16 16 IN THE Supreme Court of the United States OCTOBER TERM, 1982 No. CAPITAL CITIES CABLE, INC., et al., . Petitioners, RICHARD A. CRISP, DIRECTOR, OKLAHOMA ALCOHOLIC BEVERAGE CONTROL BOARD, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Capital Cities Cable, Inc. (formerly Cablecom-General, Inc.!, Cox Cable of Oklahoma City, Inc., Multimedia Ca- blevision, Inc., and Sammons Communications, Ine. re- spectfully petition for a writ of certiorari to the United States Court of Appeals for the Tenth Circuit to review that court’s judgment of January 24, 1983, in Cablecom- General, Inc. v. Crisp, No. 82-1061, which was decided together with Oklahoma Telecasters Association v. Crisp, No. 82-1058, in a single opinion. OPINIONS BELOW The opinion of the United States Court of Appeals for the Tenth Circuit is reported at 699 F.2d 490 and ap- pears as Appendix A to this petition. The opinion of the United States District Court for the Western District of 2 Oklahoma granting a preliminary injunction is not re- ported and appears as Appendix D to this petition. The district court’s opinion on summary judgment is also not reported and appears as Appendix G to this petition. JURISDICTION The judgment of the court of appeals was entered on: January 24, 1983. On March 21, 1983, the court of ap- peals denied a petition for rehearing filed by petitioners. Appendix B. Jurisdiction of this Court is invoked under 28 U.S.C. $ 125411). CONSTITUTIONAL PROVISIONS, STATUTES. AND REGULATIONS INVOLVED This case involves the First, Fourteenth, and Twenty- first Amendments to the Constitution of the United States; Article 27, Section 5 of the Constitution of the State of Oklahoma; Section 516 of the Oklahoma Bever- age Control Act, Okla. Stat. Ann. tit. 37, $516: Section 11lic!} (3) of the Copyright Act of 1976, 17 U.S.C. $ 111(c) (3); and Section 76.55(b) of the rules of the Fed- eral Communications Commission, 47 C.F.R. S 76.55 (b). These provisions are set forth in Appendix H to this pe- tition. STATEMENT OF THE CASE Petitioners operate cable television systems in the state of Oklahoma. Much of petitioners’ cable service is com- posed of programming that originates outside Oklahoma and that is received by petitioners’ systems—by means of antenna, microwave receiver, or satellite dish—and retransmitted by wire to their subscribers. II R. Ss if some cases, petitioners’ carriage of signals from out- of-state television stations is mandated by the Federal Communications Commission's so-called “must-carry” * References to “IT BR. —."- and “IT R —__.* are to Volumes 1 and 2 of the record in this matter on appeal in the United States Court of Appeals for the Tenth Circuit. 3 rules.’ II R. 34-35, 52-55. Most of the out-of-state pro- gramming, however, is selected by the cable operators themselves, and it is this programming which typically furnishes the systems’ primary appeal to subscribers. II R. 8, 10, 34. Out-of-state programming voluntarily car- ried by petitioners includes the signals of commercial tele- vision broadcast stations located in neighboring Kansas, Missouri, and Texas and the signals of so-called “super stations” located in such cities as Atlanta and Chicago." II R. 32-83, 34-35, 53. This programming contains, from time to time, commercials for brands of wine. II R. 33, 39. The wine commercials are lawful under federal law and in the states where they originate. App. G at 4la. While it does not appear in the record, petitioners also provide advertiser-supported national cable programming services, such as the Cable News Network (CNN) and the USA Network, which also typically include wine com- mercials.* The sale and consumption of alcoholic beverages are lawful in the state of Oklahoma. 699 F.2d at 500, App. A at 19a-20a; App. G at 42a. By statute and in its con- stitution, however, the state makes it unlawful “for any person, firm or corporation to advertise any alcoholic beverages or the sale of same within the State of Okla- homa, except one sign at the retail outlet bearing the words ‘Retail Alcoholic Liquor Store.’ ” Oklahoma Alco- holie Beverage Control Act, Okla. Stat. Ann. tit. 37, $516." The act specifically defines wine as an alcoholic beverage within the scope of the advertising ban. 7d. at * 47 C.F.R. $$ 76.57-.61 (1982). “A “super station” is an independent television station whose signal is relayed via statellite to cable systems beyond the normal reach of its over-the-air signal. * Petitioners also offer subscribers the option of receiving, at an extra charge, certain so-called “pay’ services, such as Home Box Office (HBO), that contain no advertising. * See also Okla. Const. art. 27, S$ 5. 4 s 50613). The advertising of beer is permitted. 699 F.2d at 492, 502, App. A at 3a-4a, 23a.* The liquor advertising ban has for some years been interpreted by the state to forbid Oklahoma broadcast television stations from broadcasting wine commercials as part of the national network programming they carry. In upholding this application of the ban, the Oklahoma Supreme Court relied heavily on its finding that televi- sion stations are able to delete wine commercials from the network programming. Oklahoma Alcoholic Beverage Control Board v. Heublein Wines, 566 P.2d 1158, 1160, 1162 (Okla. 1977). At the same time, the Oklahoma Attorney General has construed the liquor advertising ban not to apply to ad- vertisements appearing in newspapers, magazines and other publications printed outside Oklahoma, including publications specifically designed for circulation within the state.‘ Out-of-state publications may be delivered to Oklahoma subscribers and sold at outlets within the state even though they contain wine or liquor advertising. 699 F.2d at 493 n.1, 502, App. A at 5a, 23a-24a. For many years, the state applied a similar policy to cable operators, and they were permitted to carry out- of-state programming containing wine commercials. 699 F.2d at 492, App. A. at 4a; App. G at 4la. In March 1980, however, the Oklahoma Attorney General issued an opinion stating that retransmission of such wine com- mercials by cable systems operating in Oklahoma would be considered in violation of state law. Op. Okla. Att’y ® The state’s definition of alcoholic beverages includes beer con- taining more than 3.2 percent alcohol by weight. Okla. Stat. Ann. tit. 37, $506(3). However, because beer advertising does not gen- erally specify alcoholic content, the advertising of beer generally is allowed. 699 F.2d at 492, App. A. at 3a-4a. _ * See, e.g., Op. Okla. Att’y Gen. No. 76-348 (November 24, 1976). 2 Gen. No. 79-334 (March 19, 1980). Respondent Richard Crisp, Director of the Oklahoma Alcoholic Beverage Con- trol Board, notified all Oklahoma cable operators, includ- ing petitioners, that they faced imminent criminal prose- cution if they continued to carry the out-of-state wine commercials. 699 F.2d at 492, App. A at da: App. G at 4la. Cable television operators are prohibited by federal law from altering or modifying the content of the broadcast television signals, including commercials, that they carry to their subscribers. 699 F.2d at 492, App. A. at 4a; App. G. at 40a. Section 76.55(b) of the Federal Com- munications Commission’s rules, 47 C.F.R. £ 76.55(b) (1982), requires that broadcast television programming retransmitted by a cable system “shall be carried in full, without deletion or alteration of any portion.” The Com- mission has specifically held that the section forbids the deletion of commercial messages.” Moreover, the Copy- right Act of 1976 expressly prohibits eable systems operat- ing under the statutory compulsory licensing system from willfully deleting a commercial advertisement from a television signal, subject to a minor exception not appli- cable here. 17 U.S.C. $ 111(e) (3). Even if deletion of the out-of-state wine commercials were lawful, there would be, as the district court found here, “no feasible way for [petitioners] to block out the * See Garland B. Pugh, 68 F.C.C.3d 997. 999 (1978) (“Section 76.55(b) of the Rules... is meant to prohibit advertising dele- tions as well”); WAPA-TV Broadcasting Corp. 59 F.C.C.2da 263, 272 (1976) ; Notice of Proposed Rulemaking and Notice of Inquiry in Docket 18397, 15 F.C.C.2d 417, 444 (1968). “The Act permits, in certain circumstances, deletion of commer- cial advertising “by those engaged in television commercial adver- tising market research.” 17 U.S.C. $111(c)} (3). The compulsory copyright license for cable operators was created by Congress be- cause it was deemed infeasible for cable systems that carry the signals of numerous television stations to attempt to negotiate in- dividual agreements with each of many different copyright owners for the right to carry every program broadcast by each station. See H.R. Rep. No. 1476, 94th Cong., 2d Sess. 89 (1976). 6 advertisements.” App. G at 41a. Petitioners liave no con- tractual relationship wiih the out-of-state television : tions whose signals they carry, no control over the pro- gramming included in those signals by the stations, and no advance notice from the stations concerning the sched- uling of wine commercials. App. G at 40a; II R. 38-40, 56-57. Petitioners’ reception and retransmission of the broadcast television signals occur simultaneously. II R. 45. Asa practical matter, therefore, even if it were law- ful to do so, petitioners would be unable to delete each wine commercial in its entirety as it appears: even to attempt to delete the major part of each wine commercial would require an extremely burdensome and costly effort by petitioners to monitor each signal continuously. App. D at 29a; II R. 38-41, 45-46, 54-58." Petitioners would thus be compelled to discontinue their carriage of all signals from commercial television stations located outside Oklahoma if they were forbidden from retransmitting out-of-state wine commercials. This would deprive Oklahoma residents of access to the pro- gramming offered by the Atlanta, Chicago and other “su- per stations,” as well as that provided by other, less dis- tant stations whose signals are available to Oklahoma residents only by means of cable retransmission. The record indicates that some Oklahoma towns would receive no broadcast television signal at all if-cable operators could not import signals from outside the state. II R. 55. Failure to carry out-of-state signals would place some cable operators in violation of the Federal Communications Commission’s “must-carry” rules, 47 C.F.R. $$ 76.57-.61 (1982), which require them to carry certain out-of-state signals to their subscribers. II R. 34-35, 52-55. Failure to transmit out-of-state signals would also in some cases 10 See also Cable Television Report and Order, 86 F.C.C.2d 143, 154-56, 165 (1972) (Commission rejects as unworkable its own proposal that would have required some cable systems to delete commercials from certain distant television signals). 7 be contrary to cable operators’ franchise agreements with the communities thev serve. App. G at 42a; II R. 55. Finally, by preventing their carriage of out-of-state broadcast signals, Oklahoma’s ban on out-of-state wine commercials would deny cable operators the ability to offer much of their most popular programming. II R. 10, 34, 55. As the district court found, this would cause the operators a substantial loss in subscriber revenue, App. G at 42a, in some cases imperiling their financial via- bility. II R. 34. District Court Proceedings After being warned by state officials that they would be prosecuted if they continued to retransmit out-of- state wine commercials, petitioners brought an action on March 3, 1981, in United States District Court for the Western District of Oklahoma against respondent Richard Crisp in his official capacity as director of the Oklahoma Alcoholic Beverage Control Board. I R 1. Pe- titioners sought injunctive relief against application of Oklahoma’s liquor advertising ban to their carriage of out-of-state wine commercials and programming con- taining such commercials and sought a declaratory judg- ment that such application would, inter alia, violate their rights to freedom of speech and press guaranteed by the First and Fourteenth Amendments to the United States Constitution." Following an evidentiary hearing, the district court on March 6, 1981, issued a preliminary injunction en- joining Crisp from enforcing the ban against petition- '! Petitioners also alleged that enforcement of the liquor adver- tising ban against them would violate the Commerce and Su- premacy Clauses of the United States Constitution, Articles I and VI, and the Equal Protection Clause of the Fourteenth Amend- ment to the United States Constitution. Federal jurisdiction was invoked under 28 U.S.C. $$ 1331, 1343, and 2201 and 42 U.S.C. § 1983. 8 ers’ carriage of out-of-state wine commercials. Appendix D. On December 18, 1981, the district court entered summary judgment for petitioners and issued a perma- nent injunction. Appendices E, F.'* An opinion sup- porting the orders was filed by the court on February 10, 1982. Appendix G." The district court found that the wine commercials carried by petitioners were not false or misleading and did not advocate unlawful activity, App. G at 47a, and held that they therefore were entitled to First Amend- ment protection under the decisions of this Court re- garding commercial speech. /d. The court ruled that Oklahoma’s ‘blanket suppression,” id. at 49a, of this advertising violated the First Amendment, relying on Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), and other decisions of this Court for the propo- sition that in the area of commercial speech “the State cannot totally prohibit the dissemination of truthful in- formation about a lawful activity.” App. G at 46a. The court rejected the contention that Oklahoma’s power to regulate liquor under the Twenty-first Amend- ment superseded the requirements of the First Amend- ment. /d. at 45a-46a. The court also found that the liquor advertising ban failed to satisfy the requirements of Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), because it had been shown to serve only remotely and ineffectively, if at all, '2 On the same date, the district court awarded summary judg- ment and injunctive relief to a group of Oklahoma broadcast tele- vision stations that had brought a separate lawsuit challenging on First Amendment grounds the state’s prohibition of their broad- cast of wine commercials as part of their carriage of national net- work programming. Oklahoma Telecasters Association v. Crisp, No. Civ-81-439-W (W.D. Okla. December 18, 1981), rev'd, 699 F.2d 490 (10th Cir. 1983). 'S The February 10 opinion replaced an opinion filed with the original orders. As the court of appeals noted, the opinions were “nearly identical.”’ 699 F.2d at 493, App. A at 5a. 9 ‘ the state’s asserted interests in temperance and dis- couragement of alcohol abuse. Jw. at 48a. The court pointed out that enforcement of the ban against peti- tioners would:merely prohibit them “from disseminating advertisements of something the public already knows from experience and from reading [out-of-state] news- paper and magazine advertising—that alcoholic bever- ages exist and are for sale at certain prices.” Jd. at 45a. The court also concluded that the ban was con- trary to the Court’s holding in Central Hudson because there existed alternative measures, such as educational programs, that could combat alcohol abuse more directly and effectively without infringement on First Amend- ment interests. Jd. at 48a-49a. Finally, the court found that enforcement of the Okla- homa laws against petitioners would effectively preclude them from carrying any out-of-state broadcast signals, since they are prevented by federal law from deleting the commercials, id. at 38a, and since “there exists no feasible way for [the operators] to block out the adver- tisements.” Jd. at 41a."' The Decision Below On appeal, the Tenth Circuit reversed. holding that enforcement of the Oklahoma liquor advertising ban against petitioners did not violate the First Amend- ment.'* The court of appeals concurred with the district court’s conclusion that the wine advertisements carried by the cable operators concerned lawful activity, were '* The court did not reach petitioners’ other constitutiona’ claims. App. G at 39a-40a. 'S Petitioners’ other constitutional claims were not addressed by the court of appeals. 699 F.2d at 493 n.1, App. A at da. At the same time and with the same opinion, the court also re- versed the district court's judgment for the broadcast plaintiffs in Oklahoma Telecasters Association v. Crisp, No. 82-1058, which had been consolidated with the cable operators’ case for purposes of appeal. 10 not false or misleading, and therefore were “protected speech under the First Amendment.” 699 F.2d at 500, App. A at 20a. Nevertheless, the Tenth Circuit sus- tained the ban, holding that this result was compelled by this Court’s summary dismissal of the appeal in Qreensgate Investment Co. v. Liquor Control Commis- scon, 103 S.Ct. 31 (1982), decided after the district court’s decision. Queensgate involved an appeal from a decision by the Ohio Supreme Court " that sustained as constitutional that state’s partial ban on off-premises advertising of liquor prices by certain holders of liquor permits. Although the Tenth Circuit recognized that the Oklahoma restrictions ‘‘are indeed broader than the regulation in Queensgate,” 699 F.2d at 497, App. A at 15a, it concluded that this Court’s dismissal of the Queensgate appeal “mandate[d]” reversal of the district court decision. 699 F.2d at 502, App. A at 24a. In addition to relying on Queensgate, the Tenth Cir- cuit held that the Oklahoma ban should be sustained because of “the additional deference owed to the legisla- ture as a result of the Twenty-first Amendment.” 699 F.2d at 501, App. A at 22a. The court therefore did not require the state to justify its infringement of First Amendment rights by the usual stringent standard and upheld the Oklahoma restrictions after finding them “rea- sonably related to reducing the sale and consumption of [alcoholic] beverages and their attendant problems,” 699 F.2d at 501, App. A at 22a, and “no more extensive than is necessary to serve Oklahoma’s asserted interest.” 699 F.2d at 502, App. A at 24a. Although the court noted that cable television opera- tors were precluded by federal law from deleting out-of- state wine commercials from the programming they carry, 699 F.2d at 492, App. A at 4a, and that they “especially are placed in a difficult position” by the liquor advertising ban, 699 F.2d at 502, App. A at 23a, '6 Queensgate Investment Co. v. Liquor Control Commission, 433 N.E.2d 138 (Ohio 1982). 11 the court did not explain how the state. consistent with the First Amendment, could effectively prohibit the car- riage of out-of-state programming. Nor did the court indicate how cable programming could be distinguished in this respect from magazines and newspapers, which may be distributed in Oklahoma even though they con- tain liquor advertisements. On March 21, 1983, the Tenth Circuit denied a peti- tion for rehearing, Appendix B, and on April 4, 1983, under Rule 41(b) of the Federal Rules of Appellate Procedure, the court stayed its mandate for 30 days pending the filing of this petition. Appendix C., REASONS FOR GRANTING THE WRIT 4 This case presents important First Amendment issues meriting this Court’s review. The Tenth Circuit’s deci- sion, if not reversed, would permit the kind of sweeping ban on commercial speech that decisions of this Court have repeatedly condemned. The decision would also countenance an unprecedented state restriction on the press and on the interstate flow of information and ideas since the regulation at issue would effectively prevent cable television operators from carrying out-of- state advertiser-supported programming into Oklahoma. I. THE COURT BELOW HAS DECIDED AN IMPOR- TANT CONSTITUTIONAL QUESTION CONCERN. ING THE PROTECTION OF COMMERCIAL SPEECH IN CONFLICT WITH DECISIONS OF THIS COURT AND CONTRARY TO THE OPINION OF ANOTHER CIRCUIT. A. The Decision of the Court Below Upholds a Sweep- ing Ban On Truthful Advertising of a Lawful Product in Conflict With Decisions of This Court. In upholding Oklahoma’s ban on the advertising of alcoholic beverages, the decision below js in direct conflict with decisions of this Court holding that the First Amendment bars states from prohibiting the dissemina- tion of truthful, non-misleading information about a law- ful product." While at one time decisions of this Court suggested that commercial speech was not constitutionally pro- tected,’* the Court has repeatedly held over the last decade that truthful advertising related to lawful products and ac- tivities is protected by the First Amendment.'’ It has em- phasized the societal benefits in preserving a free flow of commercial information about goods and services, and has forcefully repudiated the ‘paternalistic’? approach,” adopted below by the Tenth Circuit, that would permit states to protect their citizens against perceived dangers of lawfully available products by banning the dissemina- tion of information about those products.*! Contrary to the decision below, this Court in recent years “has not approved a blanket ban on commercial speech unless the expression itself was flawed in some way, either because it was deceptive or related to un- lawful activity.” Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 566 n.9 (1980). It has struck down as unconstitutional prohibi- tions on advertising by lawyers, Bates v. State Bar of 1T See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490. 505 (1981); Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 570-72 (1980); id. at 573-79 (Black- mun, J., concurring in judgment); Bates v. State Bar of Arizona, 433 U.S. 350 (1977); Carey v. Population Services International, 431 U.S. 678, 700-02 (1977); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 773 (1976): Bigelow v. Virginia, 421 U.S. 809 (1975). 18 See, e.g., Valentine v. Chrestensen, 316 U.S. 52 (19§ 19 See, e.g., In re R.M.J., 455 U.S. 191, 199 (1982). 2° Virginia State Board of Pharmacy, 425 U.S. at 770. “1 See Central Hudson, 447 U.S. at 561; Bates, 483 U.S. at 264: Virginia State Board of Pharmacy, 425 U.S. at 765. 13 Arizona, 433 U.S. 350 (1977);** on price advertising by pharmacists, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) ; on the advertising of abortion services, Bigelow v. Virginia, 421 U.S. 807 (1975); on the advertising of contraceptives, Carey v. Population Services Interna- tional, 431 U.S. 678 (1977); and on promotional] adver- tising by utilities, Central Hudson Gas & Electric Corp. v. Public Services Commission, 447 U.S. 557 (1980). As stated most recently in the plurality opinion in Metromedia, Inc. v. City of San Diego, 450 U-S. 490, 505 (1981): “A State may not completely suppress the dissemi- nation of truthful information about an entirely lawful activity merely because it is fearful of that information’s effect upon its disseminators and its recipients,” * The restriction on commercial] speech upheld by the Tenth Circuit is precisely the sort of restriction this Court has repeatedly condemned. Oklahoma’s liquor ad- vertising ban is plainly not directed, or even claimed to be directed, at commercia] speech that is false, deceptive or misleading.** Nor does the restricted commercial speech promote an unlawful product or activity; the sale and the consumption of liquor and wine are lawful in Oklahoma. The acknowledged purpose of the restriction is to discourage liquor sales and consumption by restricting the flow of commercial information about liquor to the citizens of the state, 699 F.2d at 500. App. A at 20a—in other words, to enforce the kind of “protection based .. . ** See also In re R.M.J., supra (holding unconstitutional various restrictions on the content of lawyers’ advertising). “3 See also Carey v. Population Services, Inc., 431 U.S. at 700; Virginia State Board of Pharmacy, 425 U.S. at 774. “4699 F.2d at 500 n.8, App. A at 20a n.8. Both the district court and the court of appeals agreed that the specific advertisements at issue here—the out-of-state wine commercials—are truthful and non-misleading. 699 F.2d at 500, App. A at 20a; App. G at 47a. 14 on public ignorance,” Virginia State Board of Pharmacy, 425 U.S. at 769, that this Court has forcefully rejected.” This Court’s summary dismissal of the appeal in Queensgate Investment Co. v. Liquor Control Commis- sion, 103 8. Ct. 31 (1982), a decision relied on heavily by the Tenth Circuit below, is not to the contrary and is clearly distinguishable from the present case. This Court has emphasized that its summary dispositions should be narrowly interpreted to extend only to “the precise issues presented and necessarily decided . . . [and] should not be understood as breaking new ground.” Mandel v. Brad- ley, 482 U.S. 173, 176 (1977). The Ohio regulation up- held in Queensgate forbade certain liquor permit holders from advertising off-premises the price of liquor per drink or per bottle and from comparing their retail prices to those of their competitors. See Queensgate Investment Co. v. Liquor Control Commission, 4833 N.E. 2d 135, 139 n.l (Ohio 1982). The permit holders were allowed, how- ever, to advertise in any medium any other information about alcoholic beverages, including prices in the original containers, and manufacturers and distributors of alco- holic beverages were permitted to advertise their prod- ucts without restriction. This is a far ery from Okla- homa’s sweeping ban on liquor advertising, which even the Tenth Circuit recognized to be “indeed broader than ** As the district court found, the fostering of public ignorance in this area is contrary to the purposes of the First Amendment. App. G at 49a-50a. By informing consumers of the availability and nature of a lawful product, the wine commercials at issue here aid “the allocation of resources in a free enterprise system.” Bates v. State Bar of Arizona, 433 U.S. at 364. In addition. just as the utility advertising for electrical products protected by this Court in Central Hudson could have the effect of promoting energy con- servation by offering an alternative to less energy-efficient products, 447 U.S. at 570, so here, by presenting an alternative to hard liquor and spirits, wine commercials can promote moderation in the con- sumption of alcohol. See, e.g., C. Burck, Changing Habits in Ameri- can Drinking, Fortune, October 1976, at 159-60. The dissemination of such messages serves the interest of an informed public. the regulation in Queensgate.” 699 F.2d at 497, App. A. at 15a.*° The Tenth Cireuit’s decision also conflicts with deci- sions of this Court insofar as it holds that the First Amendment provides lesser protection when a state seeks to restrict liquor advertising under regulatory power con- ferred by the Twenty-first Amendment. 699 F.2d at 498, 901-02, App. A at 15a-17a, 22a, 24a. This Court has emphasized that the Twenty-first Amendment does not alter the standard of review under the First Amendment or other constitutional provisions protecting individual rights. See Larkin v. Grendel’s Den, Inc., 51 U.S.L.W. 4025, 4027 n.5 (U.S. December 13, 1982) (“The state may not exercise its power under the Twenty-first Amendment in a way which impinges upon the Establish- ment Clause of the First Amendment”); Craig v. Boren, 429 U.S. 190, 209 (1976) (the Twenty-first Amendment “does not alter the application of equal protection stand- ards that otherwise govern this case’) : Wisconsin v. Con- “° The regulation approved in Queensgate involved only a re- striction on advertising by the holders of liquor permits, and this Court has made clear that a state’s power to impose conditions on the granting of liquor permits is greater than its power generally to regulate First Amendment activity. See Craig v. Boren, 429 U.S. 190, 209 (1976); California v. LaRue, 409 U-S. 109, 118 (1972) (“The critical fact is that California has not forbidden these performances across the board {| but] has merely proscribed ‘them] to establishments that it licenses to sell liquor by the drink’). See also New York State Liquor Authority v. Bellanca. 452 U.S. 714, 715 (1981). In this case, on the other hand, Okla- homa seeks to enforce its liquor advertising ban directly against the press. This Court held in Bigelow v. Virginia, 421 U.S. 809, 828 (1975), that a ban on advertising “incur[s] more serious First Amendment overtones” when applied against the press rather than the advertiser. See also Lamar Outdoor Advertising, Inc. v. Mis- sissippt State Tar Commission, 701 F.2d 314, 330, reh'g en banc ordered (Sth Cir. 1983) (“| A|pplication of [an advertising ] reg- ulation against liquor licensees raises different constitutional issues than enforcement of « subject matter ban against publishers and broadcasters”’). 16 stantineau, 400 U.S. 433, 486 (1971) (state’s power to regulate liquor does not relax requirements of procedural due process) .27 Finally, the decision below conflicts with this Court’s assertion in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. at 564, that even a limited restriction on protected commercial speech “may not be sustained if it provides only ineffective or re- mote support for the government’s purpose ... [or] if the governmental interest could be served as well by a more limited restriction.” ** The record in this case con- tains no evidence that liquor advertising, in particular out-of-state commercials for brands of wine, contributes directly to alcohol abuse, or that the suppression of such commercials directly or effectively promotes temperance. App. G at 48a." To the contrary, the district court found that Oklahoma’s ban on such advertising serves the state’s purposes in at most a remote, indirect and ineffective fashion. App. G at 45a, 48a. The district court also found that Oklahoma had failed to demonstrate the ab- sence of alternative measures that could serve the goal of temperance as directly or effectively as the advertising ban without such adverse impact on First Amendment rights. App. G at 48a-49a. The Tenth Circuit’s decision in this case, if allowed to stand, is likely to have the effect of encouraging other “7 See also California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 108 (1980) (Twenty-first Amend- ment does not “insulate” states from constitutional requirements). “8 See also In re R.M.J., 455 U.S. at 203. “" See also D. Pittman, Primary Prevention of Alcohol Abuse and Alcoholism: An Evaluation of the Control of Consumption Policy 18 (Social Science Institute of Washington University, 1981) (“[N]lo scientific evidence exists that beverage alcohol adver- tising has any significant impact on the rate of alcohol abuse and alcoholism in American society”); R. Wilkinson, The Preven- tion of Drinking Problems 43-48, 132, 157 (1970). 17 states to adopt restrictions on the Oklahoma model. The questions presented are thus of substantial importance. B. The Decision of the Court Below Is Contrary to the Opinion of Another Circuit. The decision below is directly contrary to a recent opinion of a panel of the Fifth Circuit declaring a similar state ban on liquor advertising to be an unconstitutional infringement on commercial speech.” At issue was a Mississippi statute prohibiting liquor advertisements that originated within the state. The Fifth Circuit panel con- cluded that the statutory ban violated the First Amend- ment. In doing so, the panel expressly rejected both the result reached by the Tenth Circuit in this case and the reason- ing it employed. The panel found inapplicable the Su- preme Court’s summary dismissal of the appeal in Queensgate Investment Co. v. Liquor Control Commis- sion, 103 S. Ct. 31 (1982), and specifically rejected the interpretation placed on Queensgate by the Tenth Cir- cuit.*' The panel also concluded, contrary to the Tenth Circuit, that the state’s authority under the Twenty-first Amendment did not change the standard of review under the First Amendment. And the panel found that Mis- sissippi’s ban on liquor advertising did not effectively pro- mote the state’s interest in controlling liquor consump- tion, relying principally on the fact that liquor commer- cials continued to enter the state through magazines and newspapers published outside Mississippi and through radio and television signals received directly by Missis- *” Lamar Outdoor Advertising, Inc. v. Mississippi State Tax Com- mission, 701 F.2d 314, reh'g en bane ordered (5th Cir. March 11, 1983). See also Dunagin v. City of Oxford, 701 F.2d 335, reh’g en bane ordered (5th Cir. March 11, 1983) (applying and following Lamar). "1 See Lamar, 701 F.2d at 331 n.23. *2 Id. at 329-330. 18 sippi residents from stations outside the state.** A simi- lar situation exists in Oklahoma, as found by the district court in the present case. App. G at 45a, 48a. There is thus a clear inconsistency between the decision of the Tenth Circuit and the opinion of the Fifth Circuit panel. These important issues warrant review by this Court." Il. THE COURT BELOW HAS DECIDED AN IMPOR- TANT CONSTITUTIONAL QUESTION CONCERN- ING THE PROTECTION OF NONCOMMERCIAL SPEECH IN CONFLICT WITH DECISIONS OF THIS COURT. This case is also important because it is the first case to come before this Court involving the power of the states under the First Amendment to regulate the content of cable television programming. As the number of cable subscribing households has grown from 2.8 million in 1968 to more than 31 million today,” state and local gov- ernments have increasingly sought to play a role in the “Id. at 332-33. “When a state seeks to impose such a severe ban upon protected commercial speech, it must at least show that its law does some good.” Jd. at 333. ‘' Recognizing that their decisions produced a conflict between the circuits, the Fifth Circuit ordered rehearing en banc. Lamar, 701 F.2d at 316; Dunagin, 701 F.2d at 336. Under the rules of the Fifth Circuit, the effect of this action was to vacate the panel opinions and judgments. Vacation of the opinions does not neces- sarily deprive them of persuasive authority, both within the Fifth Circuit and without. See, e.g., Straus Communications, Inc. v. FCC, 530 F.2d 1001, 1008 n.16 (D.C. Cir. 1976) (citing National Broadcasting Co., Inc. v. FCC, 516 F.2d 1101, vacated, 516 F.2d 1180 (1D.C. Cir. 1974), cert. denied, 424 U.S. 910 (1976) ). * See Cable & Station Coverage Atlas 18a (1982); Multi- cl.annel News, March 28, 1983, at 3. The current figure represents more than 37 percent of the nation’s television households. Jd. 19 regulation of cable program content. Such regulation raises vital First Amendment questions deeply affecting this increasingly important medium of communication. The regulation at issue here would impose a_partic- ularly grave burden on the First Amendment rights of cable television operators and subscribers. The record in this case shows, and both the district court and the court of appeals found, that prohibition of petitioners’ carriage of out-of-state wine commercials will effectively preclude petitioners from distributing not only those commercials, but the entire programming of out-of-state television signals, including news programs, editorials. documenta- ries, entertainment, and other expressions of ideas and information.** As discussed above, the carriage of such programming will be effectively foreclosed because petitioners are pre- vented by federal law and by overwhelming technical and economic obstacles from deleting the wine commercials that are contained in the programming.” It is for these reasons that the district court found that petitioners’ only “feasible” alternative, App. G at 39a, would be to drop entirely their carriage of out-of-state broadcast television programming. In fact, for some cable operators the only feasible alternative will be to cease operations entirely, since failure to carry out-of-state television signals will place them in violation of the Federal Communications Commission’s “‘must-carry” rules. 47 C.F.R. $ 76.57-.61. Other systems, no longer able to offer out-of-state broad- cast signals, will lose subscriptions as a result and suffer severe, in some cases fatal, economic losses. App. G at 42a; II R. 34-35." Although it does not appear in the 6 699 F.2d at 492, App. A at 4a: App. G at 4la. *7 See pages 5-6, supra. “* The state’s imposition of such a debilitating economic burden on cable operators in itself raises important First Amendment 20 record, petitioners would also be effectively compelled to cease carrying national cable programming services con- taining wine commercials, such as the Cable News Net- work and the USA Network.” There can be no doubt that cable television—like news- papers, broadcast television, and motion pictures 4__is today “a significant medium for the communication of ideas . . . included within the free speech and free press guaranty of the First and Fourteenth Amendments.” Joseph Burstyn, Ine. &. Wilson, 343 U.S. 499, 501-02 concerns. Compare Pittsburgh Press Co. v. Pittsburgh Commis- sion on Human Relations, 413 U.S. 376 (1973), in which this Court upheld municipal regulations on the format of a newspaper's ad- vertising columns only after determining that the regulations did not “threate(n | |appellant’s | financial viability, - - - impai[r} in any significant way its ability to publish and distribute its news- paper,” or “endanger arguably protected speech.” Jd. at 383, 390. Such threats to critical First Amendment interests are plainly posed here. See also Grosjean v. American Press Co., 297 U.S. 233, 250 (1936), in which this Court held that a state tax on the adver- tising revenue of newspapers having a circulation of 20,000 or more violated the First Amendment because of its tendency “to limit the circulation of information to which the public is entitled in virtue of the constitutional guarantees.” And see Minneapolis Star & Tribune Co. Uv. Minnesota Commissioner of Revenue, 51 U.S.L.W. 4315 (U.S. March 29, 1983) (state tax on publications’ use of paper and ink violates First Amendment). 30 While deletion of commercials from such national cable pro- gramming services would not violate federal law, it would be in violation of the cable operator’s contract with the service provider, which customarily prohibits the removal of advertising. The pro- viders of such programming also typically do not provide cable operators with prior notice concerning the scheduling and nature of commercials, so that the technical and economic impracticality of attempting to delete the commercials is the same as in the case of broadcast television signals. See pages 5-6, supra. 40 See Miami Herald Publishing (0. &- Tornillo, 418 U.S. 241 (1974) (newspaper publishers} ; Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973) (broad- =o | casters); Joseph Burstyn, Inc. ev. Wilson, 343 U.S. 495 (1992 (motion pictures). 21 (1952). Courts which have reached the issue have rec- ognized that the First Amendment protects both the pro- gramming carried by cable operators and the operators’ editorial function in selecting that programming. See, e.g., Midwest Video Corp. v. FCC, 571 F.2d 1025, 1053-57 (8th Cir. 1978), aff'd on other grounds, 440 U.S. 689 (1979): Home Box Office, Inc. v. FCC, 567 F.2d 9, 43-51 (D.C. Cir.), cert. denied, 484 U.S. 829 (1977).4 While this Court has not explicitly addressed the question of cable operators’ First Amendment status, it has recognized that cable operators exercise editorial discretion in choos- ing signals and services. FCC v. Midwest Video Corp., 440 U.S. 689, 707 (1979) ; Teleprompter Corp. v. Colum- bia Broadcasting System, Inc., 415 U.S. 394, 410 11974) (choice of broadcast signals by cable operators is a “crea- tive function”’). In exempting out-of-state publications from its liquor advertising ban, the state of Oklahoma has apparently recognized that it could not forbid the sale of the New York Times and the Wall Street Journal within the state because they contain wine advertising. Yet Oklahoma seeks to enforce a similar ban against cable operators who—like the Oklahoma distributors of the New York Times and the Wall Street Journal—must either offer the communication in its entirety, including wine adver- tisements, or forgo its distribution. Such regulation re- stricting the flow of information into the State is no less unconstitutional applied to cable operators than it would be if applied to newspaper distributors. *! See also Community Communications Co. v. City of Boulder. 660 F.2d 1370, 1376 (10th Cir. 1981), petition for cert. dismissed by agreement, 102 S. Ct. 2287 (1982). And see Comment, Access to Cable Television: A Critique of the Affirmative Duty Theory of the First Amendnrent, 70 Cal. L. Rev. 1393 (1982); Note, FCC Regulation of Cable Television Content, 31 Rutgers L. Rev. 238 (1978); Note, Cable Television and the First Amendment, 71 Colum. L. Rev. 1008 (1971). 22 It is the fundamental] purpose of the First Amendment, as applied to the states through the Fourteenth Amend- ment, to protect from governmental interference the na- tional ‘“‘free trade in ideas.” Abrams v. United States, 250 U.S. 616, 680 (1919) (Holmes, J., dissenting). To this end, the amendment is designed to ensure that infor- mation may flow freely across the country and that ideas originating in New York and New England may be made available to the citizens of Oklahoma and Mississippi. For an individual state to ban entirely an out-of-state communication because it contains objectionable advertis- ing, when that advertising is neither misleading nor de- signed to encourage the consumption of an unlawful prod- uct, strikes at the very heart of the national commerce in ideas. No state, consistent with the First Amendment, may erect such barriers to the free flow of ideas or so “shield its citizens from information about activities out- side [its] borders.” Bigelow v. Virginia, 421 U.S. at 827-28.** : That the Oklahoma ban does not expressly forbid—and is not intended to forbid—the importation of all out-of- state signals does not rescue the regulation when so sub- stantial an “effect on the exercise of First Amendment rights arises ... as an unintended but inevitable result of the government’s conduct.” Buckley v. Valeo, 424 US. 1, 65 (1976) (per curiam). See elso Elrod v. Burns, 427 U.S. 347, 362 (1976); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 297 (1961) 1 “[R]Jegulatory meas- ures . . . cannot be employed in purpose or in effect to stifle, penalize, or curb the exercise of First Amendment §2 See also Board of Education v. Pico, 50 U.S.L.W. 4831, 4835 (U.S. June 25, 1982) (“‘| A] State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge’’’) (quoting Griswold v. Connecticut, 381 U.S. 479, 482 (1965) ); Epperson v. Arkansas, 393 U.S. 97 (1968): New York Times v. Sullivan, 376 U.S. 254 (1964); Martin v. City of Struthers, 319 U.S. 141, 146-47 (1943). 23 rights”) (emphasis added); NAACP v. Alabama, 357 U.S. 449, 460-61 (1958).* Nor is the regulation saved because it is directed at commercial speech, even if the advertising in question Were itself unprotected by the First Amendment.** The decision below is directly contrary to decisions of. this Court holding that a state may not prevent the dissemi- nation of protected speech on the ground that it includes some suppressible commercial material or activity. Thus, in Jamison v. Texas, 318 U.S. 413 (1943), the Court re- versed the conviction of a Jehovah’s Witness for distribut- ing religious handbills that included an advertisement for a religious publication. Noting that states then could gen- erally “prohibit the use of the streets for the distribution of purely commercial leaflets,” id. at 417. the Court nevertheless held that ‘[t]he mere presence of an adver- tisement” on a_handbill furthering religious activity “may not subject the distribution of the handbill to pro- hibition.” Jd. at 416.° In In re Primus, 486 U.S. 412 "= This Court has repeatedly struck down regulations that sub- stantially restricted important avenues or media of expression, notwithstanding that the purpose of the regulation was unrelated to the content of the speech. See, ¢.y., Saia v. New York, 334 U.S. 998 (1948) (sound trucks): Martin v. City of Struthers, supra (door-to-door solicitation) : Schneider rv. State, 308 U.S. 147 (1939) (leafletting). See also Ely, Legislative and Administrative Moti- vation in Constitutional Law, 79 Yale 1..J. 1205, 1335-36 (1970) (“The state is obligated to protect the channels of communication, even if it takes a special exception and some sacrifice of the state's expression-unconnected interest”). And the Court has viewed with particular alarm regulations that would have the effect. if not the aim, of curtailing the press’ ability freely to disseminate informa- tion of its choosing. See, e.4., Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974): Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973); New York Times v. Sullivan, 376 U.S. 254 (1964): Grosjean v. American Press Co., 297 US. 238 (1936). *4 But see Section I, supra. "See also Murdock v. Pennsylvania, 319 U.S. 105 (1943). Com- v. Chrestensen, 316 U.S. 52 (1942), in which this pare Valentine { Footnote continued } 24 (1978), the Court held that a ban on in-person solicita- tion by lawyers—generally a permissible restraint on commercial speech *°—could not be applied to solicitation by a lawyer for the American Civil Liberties Union be- cause it threatened the effectiveness of the ACLU “as a vehicle for effective political expression and association,” id. at 431, and thus implicated not only commercial speech but also “core First Amendment rights.” Jd.” If allowed to stand, the Tenth Circuit’s decision in this case will permit the state of Oklahoma to severely abridge First Amendment rights by restricting the flow of ideas and information into the state and by curtailing the abil- ity of cable operators to select the programming they carry. The case is of great importance to the future of cable television, an increasingly vital medium in the dis- semination of news and information in this country. And here, as in Bigelow v. Virginia, 421 U.S. 809 (1975): “If application of this statute were upheld under these circumstances, [the state] might exert the power sought here over a wide variety of national publications or interstate newspapers carrying ad- vertisements similar to the one [fat issue] Court held that a distributor of handbills composed primarily of commercial advertising could not escape a municipal ban on com- mercial leafletting by affixing a civic protest to the advertising “with the intent, and for the purpose, of evading the prohibition.” Id. at 55. There can, of course, be no suggestion in this case that the cable operators carry protected programming in addition to wine commercials in an effort to avoid Oklahoma's ban on liquor advertising. **® See Ohralik v. Ohio State Bar Ass'n, 486 U.S. 447 (1978). *? Similarly, this Court has struck down state regulations aimed at unprotected obscenity or libel when their impact would extend more broadly to restrict the dissemination of protected ideas. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254. 278-79 (1964); Smith ». California, 361 U.S. 147, 151 . 1959); Stanley r. treorgia, 394 U.S. 557 (1969). See also Butler +. Michigan, 352 U.S. 380 (1957). 25 Other States might do the same. The burdens thereby imposed on publications would impair, per- haps severely, their proper functioning.” Jd. at 828-29 (tootnotes omitted). These critical questions require review by this Court. CONCLUSION For the reasons stated above, a writ of certiorari should be granted to review the judgment of the United States Court of Appeals for the Tenth Circuit. J ar respectfully submitted, Of Counsel: TIMOTHY B. DyK * CLYDE A. MUCHMORE JOHN W. ZUCKER CROWE & DUNLEVY WILMER, CUTLER & PICKERING 1800 Mid-America Tower 1666 kK Street, NM we 20 North Broadwav Washington, D.C. 20006 i ae : In9 77>. Oklahoma City,OK 73102 —-(292) 872-6000 Counsel for Petitioner Capital Cities Cable, Inc. JOHN D. MATTHEWS * DAVID P. FLEMING J. CHRISTOPHER REDDING Dow, LOHNES & ALBERTSON 1225 Connecticut Ave., N.W. Washington, D.C. 20036 (202) 862-8079 Counsel for Petitioners Cor Cahle of Oklahoma City, Inc. : Multimedia Cablevision, Inc.: and Sammons Communica- tions, Tne. May 3, 1983 * Counsel of Record APPENDICES TABLE OF CONTENTS APPENDIX A Opinion of the United States Court of Appeals for the Tenth Circuit, Januarv 24, 1983 APPENDIX B Order of the United States Court of Appeals for the Tenth Circuit Denying Petition for Rehearing, te 8 Oe APPENDIX C Order of the United States Court of Appeals for the Tenth Circuit Granting Motion for Stay of more. An © 19. APPENDIX D Findings and Order of the United States District Court for the Western District of Oklahoma Grant- ing Motion for Preliminary Injunction, March 19, cig, SE EOE APPENDIX E Order of the United States District Court for the Western District of Oklahoma (Declaratory Judg- ment), December 16, 61... APPENDIX F Order of the United States District Court for the Western District of Oklahoma (Permanent Injunc- tion), December 18,198]... OE: na Nt APPENDIX G Opinion of the United States District Court for the Western District of Oklahoma on Summary Judgment, February 10,1982... APPENDIX H Constitutional Provisions, Statutes. and Regula- Goms Involved ....... Page 26a 28a 3la 34a Sla la APPENDIX A UNITED STATES COURT OF APPEALS TENTH CIRCUIT Nos. 82-1058, 82-1061 OKLAHOMA TELECASTERS ASSOCIATION, an unincorporated association; COMBINED COMMUNICATIONS CORPORA- TION OF OKLAHOMA, INC., an Oklahoma corporation; GRIFFIN TELEVISION, INC., an Oklahoma corporation; KTVY, INc., an Oklahoma corporation: KTUL-TV, INc., an Oklahoma corporation; KOTV, INc.. an Ok- lahoma corporation; ScRIPPS-HOWARD BROADCASTING Co., an Ohio corporation; GOLDEN WEST BROADCAST- ERS OF OKLAHOMA, INC., an Oklahoma corporation ; BLAIR BROADCASTING OF OKLAHOMA, INC., an Okla- homa corporation; EASTERN OKLAHOMA TELEVISION Co., INC., an Oklahoma corporation; SERAPHIM CORP., an Oklahoma corporation; KOKI-TV. an Oklahoma partnership; and TuLsa TV 41, a joint venture, Plaintiffs-A ppellees, v. RICHARD A. CRISP, Director, Alcoholic Beverage Control Board. Defendant-A ppellant. CABLECOM-GENERAL, INC.: Cox CABLE OF OKLAHOMA CITY, INC.; MULTIMEDIA CABLEVISION, INC.: and SAMMONS COMMUNICATIONS, INC.. Plainti ffs-A ppellees, ¥, RICHARD A. CRISP, Director, Alcoholic Beverage Control Board. Defendant-A ppellant. Jan. 24, 1983 2a Robert D. Nelon, Oklahoma City, Okl. (Roy J. Davis, L. Gene Gist and Nancy M. Thompson, Oklahoma City, Okl., with him on the brief), of Andrews Davis Legg Bixler Milsten & Murrah, Oklahoma City, Okl., for plain- tiffs-appellees Oklahoma Telecasters Ass’n, et al. Clyde A. Muchmore, Oklahoma City, Okl. (Richard C. Ford, Oklahoma City, Okl., with him on the brief), of Crowe & Dunlevy, Oklahoma City, Okl., for Cablecom- General, Inc. (John D. Matthews, David P. Fleming and J. Christopher Redding of Dow, Lohnes & Albert- son, Washington, D.C., for Cox Cable of Oklahoma City, Inc., Multimedia Cablevision, Inc., and Sammons Com- munications, Inc., with them on the brief), in No. 82-1061. Gary W. Gardenhire, Asst. Atty. Gen., Okl., Oklahoma City, Okl. (Jan Erie Cartwright, Atty. Gen. of Okl., Ok- lahoma City, Okl.), for defendant-appellant. Jerry D. Sokolosky, Oklahoma City, Okl., filed an amicus curiae brief for Oklahoma Press Ass’n and Out- door Advertising Ass’n of Okl. Larry Derryberry of Derryberry Duncan & Gray, Ok- lahoma City, Okl., filed an amicus curiae brief for S.A.N.E., Inc. Bill Allain, Atty. Gen. of Miss., and Peter M. Stockett. Asst. Atty. Gen. of Miss., Jackson. Miss. (W. Timothy Jones and John E. Milner of Brunini. renten. Grower & Hewes, Jackson, Miss.. of counsel), filed an amicus curiae brief for the State of Miss. Before BARRETT, McKAY and LOGAN, Circuit Judges. BARRETT, Circuit Judge. Richard A. Crisp (Crisp) appeals from two summary judgments declaring that certain provisions of Okla- 8a homa’s constitution and statutes violate the First and Fourteenth Amendments of the United States Constitu- tion. The appeals were consolidated pursuant to Fed.R. App.P. 3(b). Appellee in No. 82-1058, Oklahoma Telecasters Asso- ciation (Telecasters:, is an unincorporated association of corporations and partnerships engaged in the business of television broadcasting in the State of Oklahoma. Appel- lees in No. 82-1061 are holders of cable television fran- chises in the State of Oklahoma and will be referred to as the “cable operators”. Appellant, Crisp, is the former director of the Oklahoma Alcoholic Beverage Control Board, an agency charged with primary responsibility for the enforcement of Oklahoma laws regulating the sale and consumption of alcoholic beverages. The Oklahoma Constitution stringently restricts the advertising of alcoholic beverages: It shall be unlawful for any person, firm or cor- poration to advertise the sale of alcoholic beverage Within the State of Oklahoma, except one sign at the retai! outlet bearing the words “Retail Alcoholic Liquor Store.”’ Okla. Const. art. XXVII, $5. The Oklahoma Alcoholic Beverage Contro] Act similarly prohibits the advertising of “alcoholic beverages or the sale of the same within the State of Oklahoma,” except by strictly regulated on- premises signs. Okla.Stat. Ann. tit. 37, $516 (West Supp.1982). That act defines “alcoholic beverage” as “alcohol, spirits, beer, and wine. . . .” Okla.Stat. Ann. tit. 37, $ 50612) (West Supp. 1982). The definition of “beer” only includes beverages “containing more than three and two-tenths percent (3.2%) of alcohol by weight. . . .” Okla.Stat.Ann. tit. 37, §506(3) (West Supp.1982). Since beer can contain 3.2% alcohol or less, the advertising of beer venerally is allowed. The ad- 4a vertising of wine and other alcoholic beverages within the state, however, is prohibited. The members of Telecasters rebroadcast network pro- gramming that includes advertisements for wine. Al- though such advertising is lawful where it originates, and in most states where rebroadcast occurs, the mem- bers of Telecasters are required to “block out” network advertising of wine. If Telecasters’ members fail to do so, or if they solicit or accept advertisements for alco- holic beverages, they are subject to criminal prosecution by complaint of the Alcoholic Beverage Control Board. The cable operators also are prohibited from soliciting or accepting advertising for alcoholic beverages. For many years, however, the cable operators have been al- lowed to relay programming from out-of-state television Stations that included advertisements for wine. In fact, Federal Communication Commission regulations and fed- eral copyright law prohibit cable operators from alter- ing or modifying the television signals, including adver- tisements, they relay to subscribers. See 17 U.S.C. $111 (ec! (3) (1976) and 47 C.F.R. $ 76.55(b) (1981). De- spite those federal requirements, the Attorney General of the state of Oklahoma on May 19, 1980, issued an opin- ion declaring that the prohibitions against alcoholic bev- erage advertising apply to cable television in the same manner as they apply to broadcast television. Pursuant to that opinion, Crisp notified the cable operators that the wine commercials they had been relaying were il- legal, and threatened the operators with criminal prose- cution if they continued to relay such commercials. Telecasters and the cable operators filed separate suits against Crisp, in his official capacity, in the United States District Court for the Western District of Okla- homa. Pursuant to 28 U.S.C. § 2201 (Supp. IV 1980), both plaintiffs asked the court to render a declaratory judgment that Oklahoma’s laws, Okla. Const., art. XXVII, $ 5, and Okla.Stat.Ann. tit. 37, § 516, supra, vio- a da ‘ated their rights to free speech, guaranteed by the First and Fourteenth Amendments, and equal protection, guar- anteed by the Fourteenth Amendment.' In addition, the cable operators requested and received a preliminary in- junction, and both plaintiffs sought permanent injunc- tions, prohibiting Crisp from enforcing the constitutional and statutory prohibitions against them. Both the cable operators and Telecasters filed mo- tions for summary judgment under Fed.R.Civ.P. 56. Crisp filed motions to dismiss pursuant to Fed.R.Civ.P. 12/b) 16). On December 18, 1981, the district court filed nearly identical memorandum opinions and orders in the two cases, granting Telecasters’ and the cable operators’ motions for summary judgment, and denying Crisp’s motions to dismiss. In both opinions the district court ruled that the power to regulate liquor granted to the states by the Twenty-first Amendment to the United States Constitu- tion did not override the First Amendment rights of Tele- casters and the cable operators. The court then applied the four part analysis the Supreme Court prescribed in Centra! Hudson Gas and Blectric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343. 65 L.Ed.2d 341 (1980), for determining the validity of the regula- tion of “commercial speech”. That analysis can be sum- marized as follows: (1) is the commercial speech pro- tected by the First Amendment: that is, does it con- cern lawful activity and is it not misleading; (2) is the asserted governmental interest substantial: (3) does the regulation directly advance the governmental inter- est asserted: (4) is the regulation more extensive than ' The equal protection claim was based on the inconsistency be- tween the treatment of the broadcast versus the printed media: newspapers and magazines published outside of Oklahoma. but cir- culated within the state, are permitted to carry advertisements of alcoholic beverages. The trial court did not reach the issue of equal protection and it is not before us in these appeals. 6a is necessary to serve the governmental interest? Jd. at 566, 100 S.Ct. at 2351. The district court concluded that Oklahoma's laws only indirectly advanced the stated governmental inter- est in reducing alcohol consumption and its related prob- lems, and were more extensive than necessary to serve that interest. The court therefore entered declaratory judgments stating that enforcement of the advertising does or would violate the plaintiffs’ First Amendment rights, as guaranteed by the Fourteenth Amendment. The court also entered permanent injunctions against Crisp, preventing him, or the Alcoholic Beverage Con- trol Board, from enforcing the laws against the plaintiffs. On January 11, 1982, Crisp timely filed a notice of ap- peal with this court. On February 10, 1982, the district court entered an order withdrawing its December 18, 1981, opinions, and filed nune pro tune memorandum opinions in lieu thereof, supplementing and amplifying its views with respect to the granting of summary judg- ments. The substituted opinions did not alter the court’s reasoning or conclusions in any material way; the De- cember and February opinions are nearly identical. Crisp moved to strike the substituted opinions. The dis- trict court overruled the motion in Cablecom, but en- tered no order in Telecasters, Crisp then moved the trial court to stay the permanent injunctions pursuant to Fed.R.Civ.P. 62(c). The trial court denied the motion on May 19, 1982. On October 4. 1982, the Supreme Court dismissed for want of a sub- stantial federal question the appeal in Queensgate In- restment Co. v. Liquor Control Commission. US. ——, 103 S.Ct. 31, 74 L.Ed.2d 45 (1982). In that case the Ohio Supreme Court had upheld against a First Amendment challenge a state regulation which prohibited retail liquor permit holders from advertising the retail price of alcoholic beverages. ~ (a Based on the Queensgate dismissal, Crisp on Novem- ber 4, 1982, again moved the district court to suspend the injunctions under Fed.R.Civ.P. 62(¢c!}. The district court was unable to hear the motions prior to November 15, when the appeals were scheduled for oral argument. On November 9, therefore, Crisp applied to this court under Fed.R.App.P. 8(a) for an order suspending the injunctions during the pendency of the appeals. At the commencement of oral argument on November 15, 1982, we denied that application. In his briefs, Crisp raises numerous contentions of error, including the propriety of the trial court’s sum- mary judgments and nunc pro tune opinions, the denial of Crisp’s request for a hearing on his motion to stay the injunctions, and the trial court’s application of the Central Hudson analysis. At oral argument, however, Crisp emphasized the importance of the Queensgate dis- missal. We agree that the application of that case is the critical issue in this appeal. Thus, we will first address that issue. i In Queensgate Investment Co. v. Liquor Control Com- mission, 69 Ohio St.2d 361, 433 N.E.2d 138 (1982), the appellant, Queensgate Investment Co. ‘ Queensgate), was a holder of an Ohio liquor permit who was prosecuted for the violation of certain regulations of the Ohio Liquor - Control Commission. The regulations in question pro- hibited off-premises price advertising by holders of cer- tain liquor permits. The Commission rendered an order ~The regulations provided, in pertinent part: No alcoholic beverages shall be advertised in Ohio except in the manner set forth in 4301:1-1-03 and as hereinafter pro- vided. (A) As to advertising on the premises, holders of Class C, 1D), and G permits shall not advertise the price per bottle or drink of any alcoholic beverage, or in any manner refer to price 8a suspending Queensgate’s license for one week for the vio- lation of the regulation. Queensgate appealed on several grounds, including a contention that the regulation was an unconstitutional restraint on its First Amendment right to engage in commercial speech. The Ohio Supreme Court applied the analysis articu- lated in Central Hudson, supra, and held that the regula- tion did not violate the First Amendment. The court first held that the speech was protected and that the asserted governmental interest, that of Ciscouraging the excessive consumption of alcoholic beverages, was substantial and was well within the powers granted to the states under the Twenty-first Amendment. The court then held that since it was directed at controlling alcoholic beverages, not speech, the regulation did directly advance the gov- ernmental interest. Finally, the court held that the ad- vertising of drink prices and price advantages would en- courage the excessive consumption of alcoholic beverages ; thus, the prohibition against such advertising was the narrowest method available to prevent such excessive con- sumption. Queensgate, supra at 69 Ohio St.2d 365-67, 433 N.E.2d 138. or price advantage except within their premises and in a man- ner not visible from the outside of said premises. (B) Manufacturers and distributors of alcoholic beverages are permitted to advertise their products in Ohio. Holders of Class C, D, and G permits shall be authorized to advertise in newspapers of general circulation, radio and tele- vision, on bill boards, calendars, in or on public conveyances and in regularly published magazines. Advertising may include the retail price of the original container or packages, but such advertising may not in any manner refer to price advantage. Subsequent enactment of law by the 102nd Ohio General Assembly prohibits the advertising of the retail price of beer in any media. See page 6, Section 4301.211 of the Revised Code of Ohio. Ohio Adm. Code 4301:1-1-44. See Queensgate, supra at 69 Ohio St.2d 361-62 n. 1, 433 N.E.2d 138. 9a Queensgate filed a timely appeal in the United States Supreme Court. The only issue it raised there was whether the regulation violated the “First and Four- teenth Amendments of the Constitution of the United States by suppressing the public dissemination of truth- ful information about a lawful activity.” Jurisdictional Statement at I, Queensgate Investment Co. v. Liquor Con- trol Commission, US. , 103 S.Ct. 31, 74 L.Ed.2d 45. The Liquor Control Commission filed with the Su- preme Court a motion to dismiss the appeal on the ground that the question was so unsubstantial as not to warrant further argument. The basis for the motion was that an advertising prohibition was well within the scope of a State’s powers under the Twenty-first Amendment, which permits a state to totally ban the sale of liquor, or other- wise “minimize its evils’. On October 4, 1982, the Supreme Court dismissed the appeal “for want of a substantial federal] question.” * Queensgate Investment Co. v. Liquor Control Com mission, US. , 103 S.Ct. 31, 74 L.Ed.2d 45 (1982). Thus, we must now determine what precedential weight to ascribe to that dismissal in deciding the present appeal. II, The seminal case on the precedential effect of sum- mary dispositions by the Supreme Court is Hicks ». Mi- randa, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed2a 223 (1975). In that case the Court was faced with the prob- lem of the distinction between its appellate jurisdiction and its certiorari jurisdiction. Under 28 U.S.C. $ 1257 * The rules of the Supreme Court require a jurisdictional state- ment which includes “{a] statement of the reasons why the ques- tions presented are so substantial as to require plenary considera- tion, with briefs on the merits and oral argument, for their resolu- tion.” Sup.Ct.R. 15(1)(h). Rule 16 allows the appellee to file a motion to dismiss an “appeal from a state court on the ground that it does not present a substantial federal question. .. .” Sup.Ct.R. 16(1)(b). 10a (2) (1976), final judgments of the highest court of a state may be reviewed by the Supreme Court: “By ap- peal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution . . . of the United States, and the decision is in favor of its validity.” Unlike certiorari jurisdic- tion, which is discretionary, the Court’s appellate juris- diction is mandatory. Hicks, supra at 344, 95 S.Ct. at 2289. Thus, when a case comes before it on appeal, the Supreme Court is ‘not obligated to grant the case plenary consideration but [it is] required to deal with its merits.” Jd. The Court in Hicks therefore ruled that a summary dismissal of an appeal for want of a substantial federal question is a decision on the merits of the case. Such a summary disposition is binding on the lower federal courts, at least where substantially similar issues are presented, until doctrinal developments or direct decisions by the Supreme Court indicate otherwise. Jd. at 344-45, 95 S.Ct. at 2289-90. Although the Hicks decision has been criticized for a variety of reasons,° since that decision the Supreme Court * See also Sup.Ct.R. 17(1) (“A review on a writ of certiorari is not a matter of right, but of judicial discretion ...); 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure $$ 4003, 4004 & 4011 (1977). * Mr. Justice Brennan has criticized the rule as giving too much weight to a summary decision made solely on a jurisdictional state- ment, for a variety of reasons which are not explained in any sort of opinion. See Sidle v. Majors, 429 U.S. 945, 97 S.Ct. 366. 50 L.Ed.2d 316 (1976) (Brennan, J., dissenting from denial of cer- tiorari) ; Colorado Springs An isements, Ltd. v. Rizzo, 428 U.S. 913. 96 S.Ct. 3228, 49 L.Ed.2d 1222 (1976) (Brennan, J., dissenting from denial of certiorari). Sitting by designation in the Fourth Circuit. Justice Clark stated that the Hicks rule ‘fl’ ew! in the face” of what he perceived to be the Court’s actual practice of according similar treatment and precedential weight to appeals from state courts and petitions for certiorari. 526 F.2d 833, 836 (4th Cir. 1975) (Clark, J., concurring), cert. denied, 428 U.S. 913, 96 S.Ct. 3228, 49 L.Ed.2d 1221 (1976). lla has consistently stated that summary dispositions—sum- mary affirmances and summary dismissals for want of a substantial federal question—are decisions on the merits and are binding on the lower federal courts." The Court has refined the rule by emphasizing that a summary dis- position only upholds the judgment of the lower court; “[i]t does not... necessarily reflect [the Court’s] agree- ment with the opinion of the court whose judgment is appealed.” Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 489 U.S. 463, 477 n. 20, 99 S.Ct. 740, 749 n. 20, 58 L.Ed.2d 740 (1979): See also Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 182-88, 99 S.Ct. 983. 989-90, 49 L.Ed.2d 230 (1979): Mandel v. Bradley, 482 U.S. 173. 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977) (per curiam}, It has also become clear that while summary disposi- tions are rulings on the merits, their precedential effect is limited to the precise issues set forth in the jurisdic- tional statement: Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions. .. . * See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 499- 900, 101 S.Ct. 2882, 2888-2889, 69 L.Ed.2d 800 (1981) (plurality opinion); Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 462, 99 S.Ct. 2388, 2398, 60 L.Ed.2d 1017 (1979): Caban v. Mohammed, 441 U.S. 380, 390 n. 9, 99 S.Ct. 1760, 1767 n. 9, 60 L.Ed.2d 297 (1979): Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 477 n. 20, 99 S.Ct. 740, 749 n. 20, 58 L.Ed.2d 740 (1979): Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977) (per curiam); Tully v. Griffin. Inc., 429 U.S. 68. 74, 97 S.Ct. 219, 203. 50 L.Ed.2d 227 (1976). 12: Summary actions, however, . . . should not be un- derstood as breaking new ground but as applying principles established by prior decisions to the par- ticular facts involved. Mandel, supra at 176, 97 S.Ct. at 2240. See also Metro- media, Inc. v. City of San Diego, 453 U.S. 490, 499, 101 S.Ct. 2882, 2887, 69 L.Ed.2d 800 (1981); Illinois State Board of Elections, supra 440 U.S. at 182-83, 99 S.Ct. at 989-90: Yakima Indian Nation, supra 439 U.S. at 477 n. 20, 99 S.Ct. at 749. Moreover, although lower federal courts are bound by summary dismissals, they carry less precedential weight in the Supreme Court than opinions rendered after plenary consideration by that Court. Metromedia, supra 453 U.S. at 500, 101 S.Ct. at 2889: Caban v. Mohammed, 441 U.S. 380, 390 n. 9, 99 S.Ct. 1760, 1767 n. 9, 60 L.Ed.2d 297 (1979); Yakima Indian Nation, supra 439 U.S. at 477 n. 20, 99 S.Ct. at 749 n. 20; Tully v. Griffin, Inc., 429 U.S. 68, 74-75, 97 S.Ct. 219, 223-224, 50 L.Ed.2d 227 (1976). In fact, “[i]t is not at all unusual for the Court to find it appropriate to give full ccnsideration to a question that has been the subject of previous summary action.” Yakima Indian Nation, supra 439 U.S. at 477 n. 20, 99 S.Ct. at 749 n. 20. See, e.g., Caban, supra 441 U.S. at 390 n. 9, 99 S.Ct. at 1767 n. 9 ‘the Court gave plenary consideration to an issue presented and summarily dismissed only three years before and reversed itself). This review of the Hicks rule provides some guidance in determining the precedential weight we should give to the summary dismissal of Queensgate. To the extent that the same constitutional issues are presented in this case as were presented in Queensgate, that decision is binding, though the reasoning of the Ohio Supreme Court may not be. In his concurring opinion in Mandel, Mr. Justice Brennan suggested that in determining the reach of a summary dismissal as precedent, a court must: “(a) examine the jurisdictional statement in the earlier case 18a to be certain that the constitutional questions presented Were the same and, if they were, (bi) determine that the judgment in fact rests upon decision of those questions and not even arguably upon some alternative nonconsti- tutional ground.” Mandel, supra 432 U.S. at 180, 97 S.Ct. at 2242 (Brennan. J.. concurring). These guide- lines have been used by other courts. See Socialist Work- ers Party v. March Fong Eu, 591 F.2d 1252, 1257-58 (9th Cir.), cert. denied, 441 U.S. 946. 99 S.Ct. 2167, 60 L.Ed.2d 1049 (1979): Lecates v. Justice of the Peace Court No. 4, 637 F.2d 898, 904-05 (3d Cir. 1980). We consider them to be appropriate here. ITI. The jurisdictional statement in Queensgate presented the following question to the Supreme Court: Whether Regulation 4301:1-1-44 of the Ohio Liquor Control Commission, which prohibits a duly licensed retail liquor permit holder from advertising the retail price of alcoholic beverages in any medium vigible from outside the permit premises, violates the First and Fourteenth Amendments of the Constitu- tion of the United States by suppressing the public dissemination of truthful information about a law- ful activity. Jurisdictional Statement at I. Queensgate, U.S. ~~, 10o OO di, 74 LEG Sd 46 th support of the proposition that the question was a substantial one, the appellant in Queensgate argued that the advertising in question was protected commercial speech, that the Twenty-First Amendment did not allow a state to in- fringe on protected commercial] speech, and that the regu- lation in question was an unconstitutional infringement on its First Amendment rights when analyzed under the four-part Central Hudson test. In the instant case, the issue is substantially similar. In essence, that issue is: is Oklahoma’s advertising pro- l4a hibition an unconstitutional infringement on protected commercial speech? Implicit in that issue, as we believe Was implicit in Queensgate, is the issue of whether the Twenty-first Amendment in some way enhances a state’s authority to regulate commercial speech concerning al- coholic beverages. To be sure, there are factual distinc- tions between Queensgate and the instant case: the regu- lated parties here are television stations, not liquor per- mit holders; the laws here prohibit the rebroadecasting of all advertising of alcoholic beverages, except for beer ad- vertising, while the regulation in Queensgate prevented only off-premises price advertising; and other minor dis- tinctions. The crucial similarity between the cases, how- ever, is this: in both cases, the state, acting under its powers granted by the Twenty-first Amendment, has chosen to prohibit some, but not all, forms of liquor ad- vertising with the goal of decreasing the consumption and abuse of alcoholic beverages. We are confident that the constitutional question presented in Queensgate and in the present appeals is substantially the same. The second inquiry is whether there are any nonconsti- tutional grounds upon which the Supreme Court may have decided Queensyate. As noted above, the appellant's jurisdictional statement in Queensgate, while minimizing the effect of the Twenty-first Amendment, clearly con- centrated on the argument that the regulation there vio- lated its First Amendment rights to commercial speech. In its motion to dismiss for want of a substantial federal question, the Ohio Liquor Control Commission relied solely on the argument that the state was free to regu- late liquor advertising as part of its broad Twenty-first Amendment power to regulate liquor and minimize its evils. In our view, Queensgate manifestly presented an issue concerning the tension between the First and Twenty-first Amendments. The Supreme Court arguably may have decided the case on nonconstitutional grounds; if so, however, we cannot discern them. It is our view 15a that the Supreme Court decided Ohio’s regulation was nov an unconstitutional infringement on the appellant’s First Amendment rights. The Queensgate dismissal is binding on this court. IV. Still, the Supreme Court has warned against courts being so preoccupied with a summary dismissal that they fail “to undertake an independent examination of the merits.” Mandel, supra 432 U.S. at ivi, 97 S.Ct. at 2241. In light of that Warning, and because the laws here in question are indeed broader than the regulation in Queensgate, we will follow the approach taken by the court in Plante ». Gonzalez, 575 F.2d 1119 (oth Cir. 1978). cert. denied, 489 U.S. 1129. 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979): ie. Queensgate will “eaution us” against finding Oklahoma's laws to be unconstitutional, but we must still examine the merits of these appeals. Id. at 1125-26. In understanding this examination. we are mindful that Queensgate “broke no new ground”, and that we cannot reach an opposite conclusion ‘“‘on the precise issues presented and necessarily decided by” Queensgate. Mandel, supra 432 U.S. at 16, 97 S.Ct. at 2241. The crucial question in this case, as it was under our interpretation of Queensgate, is whether Oklahoma’s pro- hibition against advertising of aleoholie beverages, as ap- plied to the Appellees, violates their First Amendment rights, as guaranteed by the Fourteenth Amendment. The resolution of this issue involves an examination of the relative interests at stake: that is, we must balance the right of Telecasters and the cable operators to en- gage in commercial speech against the right of Oklahoma, through its general police powers as enhanced by the Twenty-first Amendment. to regulate commercial speech relating to alcoholic beverages. The relevant section of the Twenty-first Amendment states: “The transportation or importation into any State Territory, or possession of the United States for delivery l6a or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” U.S. Const., amend. XXI, $ 2. While the states have broad authority to regu- late alcoholic beverages under their traditional police powers standing alone, Wisconsin v. Constantineau, 400 U.S. 433, 436, 91 S.Ct. 507, 509, 27 L.Ed.2d 515 (1971), “the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals.” California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972). Thus, under the Twenty-first Amendment, the states have the power to prohibit totally the sale of liquor within their boundaries, New York State Liquor Authority v. Bellanca, 452 U.S. 714, 715, 101 S.Ct. 2599, 2600, 69 L.Ed.2d 357 (1981) (per curiam) ; Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138, 60 S.Ct. 163, 167, 84 L.Ed. 128 (1939), and the con- comitant power to regulate the times, places, and circum- stances under which liquor may be sold. Bellanca, supra, 452 U.S. at 715, 101 S.Ct. at 2600. Moreover, within the power conferred by the Twenty-first Amendment, a “State may protect her people against evil incident to intoxicants ... and may exercise large discretion as to means em- ployed.” Ziffrin, supra 308 U.S. at 138-39, 60 S.Ct. at 167. On two separate grounds, therefore, we hold that Okla- homa’s alcoholic beverage advertising prohibitions are an exercise of authority within that granted by the Twenty- first Amendment. First, the purpose of the advertising here unquestionably is to encourage sales of alcoholic beverages. As such, the advertising could be considered an incident of the sale of liquor which the state may regulate as it regulates sales themselves: “{t]he prohibi- tion against certain forms of advertising is really a pro- hibition against soliciting of business.” Premier-Pabst Sales Co. v. State Board of Equalization, 13 F.Supp. 90, 96 (S.D.Cal.1935). Alternatively, the laws are justified as one of the means, selected by an exercise of its broad lva discretion, by which Oklahoma has chosen to achieve the proper goal of protecting its people against the harms incident to the use of alcoholic beverages. Ziffrin, supra 308 U.S. at 138-39, 60 S.Ct. at 167. The latter justifica- tion was the one the State of Ohio presented to the Su- preme Court in Queensgate. Under either analysis, Okla- homa’s liquor advertising laws are within its powers under the Twenty-first Amendment. Accordingly, they are entitled to the ‘ ‘added presumption in favor of the validity of the state regulation’ conferred by the Twenty- first Amendment.” Bellanca, supra 452 U.S. at 718, 101 S.Ct. at 2601 (quoting California v. LaRue, supra 409 US. at 118, 98 S.Ct. at 397). . V. The determination that Oklahoma's laws are within its authority under the Twenty-first Amendment, however, does not end our inquiry. The Twenty-first Amendment did not grant to the states the authority to abrogate in- dividual rights guaranteed by the Fourteenth Amend- ment. Craig v. Boren, 429 U.S. 190. 206-09, 97 S.Ct. 451, 461-63, 50 L.Ed.2d 397 (1976): Wisconsin v. Con- stantincau, supra 400 U.S. at 486, 91 S.Ct. at 509 (1971). A state’s power under the Twenty-first Amend- ment must be considered in the light of the other pro- visions of the Constitution “in the context of the issues and interests at stake in any concrete case.” Hostetter ". Idlewild Bon Voyage Liquor Corp., 377 U.S. 324. 332, 84 S.Ct. 1293, 1298, 12 L.Ed.2d 350 (1964). In this case, then, we must consider the Twenty-first Amendment in the light of the First Amendment. There is no serious dispute that the advertising here in ques- tion is commercial speech, entitled to some degree of protection under the First and Fourteenth Amendments.’ ‘Crisp belatedly argues that the advertisements here are “in- herently misleading” and therefore properly prohibited. See In re 18a Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Bates v. State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Linmark Associ- ates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977). In interpreting the scope of protection afforded by the First Amendment, however, there is a “common-sense and legal distinction between speech proposing a commercial transaction and other varieties of speech... .”’ Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 506, 101 S.Ct. 2882, 2891, 69 L.Ed.2d 800 (1981) (plurality opinion).. Rather than dilute the First Amendment, the Supreme Court has “afforded commercial speech a limited measure of pro- tection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.”” Ohralik v. Ohio State Bar Association, 436 U.S. 477, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978). Our duty here is to determine whether Oklahoma’s laws are a permissible regulation of the Appellee’s at- tenuated First Amendment rights. In doing so, we must bear in mind that the Supreme Court allowed substan- tially similar regulations, despite similar challenges, in Queensgate. Nevertheless, in view of the holding in Craig R.M.J., 455 U.S. 191, 202, 102 S.Ct. 929, 937, 71 L.Ed.2d 64; Fried- man v. Rogers, 440 U.S. 1, 15-16, 99 S.Ct. 887, 897, 59 L.Ed.2d 100 (1979); Ohralik v. Ohio State Bar Association, 486 U.S. 447, 462, 98 S.Ct. 1912, 1921, 56 L.Ed.2d 444 (1978). Irrespective of whether that argument is properly before us, it is clear that Oklahoma's laws are not aimed at preventing deceptive or misleading advertising. Indeed, if they were, they would be in danger of being struck down as being more extensive than reasonably necessary. See, e.g., /n re R.M.J., supra 455 U.S. at 207, 102 S.Ct. at 940. The purpose of Oklahoma's laws is to prevent the excessive consumption of alcohol. For purposes of determining the constitutionality of the laws in that context, we are willing to accept the trial coort's finding that the advertising is truthful. 19a v. Boren, supra 429 U.S. at 209, 97 S.Ct. at 463, that the Twenty-first Amendment does not alter the standards otherwise applicable in equal protection cases, we will apply the analysis for determining the validity of regu- lation of commercial speech articulated by the Supreme Court in Central Hudson Gas & Electric C orp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct 2343, 65 L.Ed.2d 341 (1980). In Central Hudson, the Court reiterated that com- mercial speech is accorded lesser protection under the Constitution than other forms of constitutionally pro- tected expression. Central Hudson, supra at 563, 100 S.Ct. at 2350 (citing Ohralik, supra 436 U.S. at 457, 98 S.Ct. at 1919). According to the Court. the “protection available for particular commercia] expression turns on the nature both of the expression and of the govern- mental interests served by its regulation.” Central Hudson, supra 447 U.S. at 563, 100 S.Ct. at 2350. In order to balance those two competing interests, the Court proposed the following four-part analysis: At the outset, we must determine whether the ex- pression is protected by the First Amendment. F or commercial speech to come within that provision, it at least must concern lawful activity and not be mis- leading. Next, we ask whether the asserted govern- mental] interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental in- terest asserted, and whether it is not more extensive than necessary to serve that interest. Central Hudson, supra at 566, 100 S.Ct. at 2351. The threshold presented by the first two steps is easily crossed. In all relevant respects, the commercial speech here in question concerns lawful activity. The sale and consumption of alcoholic beverages, though heavily regu- 20a lated, is lawful within the State of Oklahoma.* Nor, despite Crisp’s allegations, are the advertisements in- herently misleading.’ The commercia] speech here is pro- tected speech under the First Amendment. See Virginia Board of Pharmacy, supra. The asserted governmental interest of Oklahoma in prohibiting the advertising of alcoholic beverages is to reduce the sale and consumption of liquor, and thereby reduce the problems associated with alcoho] abuse. There can be no question that this asserted interest is substan- tial. Under its general police power, Oklahoma has a legitimate and substantial interest in the health and wel- fare of its citizens, the safety of its highways, the sta- bility of its families, and the productivity of its work force, all of which are significantly and adversely affected by the abuse of alcohol. Added to this already substan- tial interest is the power of Oklahoma under the Twenty- ‘Crisp argues that some of the advertising displays conduct which would be unlawful in Oklahoma. First, we do not consider it significant that a nationally broadcast advertisement may show conduct, such as drinking wine in public, which is unlawful in Oklahoma. The purpose of the advertisement is to sell wine, which may be done lawfully in Oklahoma, not to encourage public drinking in violation of the laws of Oklahoma. Secondly, if Oklahoma's true purpose were to prevent only such advertising, the laws again are far more extensive than necessary. * See footnote 7, supra. Indeed, the qualities that Crisp alleges make these wine commercials “inherently misleading”—the com- mercials tend to project an image of wine drinkers as successful, fun-loving people, without warning of the dangers of alcohol—are present in the advertising of almost any product from automobiles to snack foods. The Supreme Court’s concern with “inherently mis- leading” advertising is directed towards advertising methods which tend to encourage fraud, overreaching, or confusion, such as some forms of lawyer solicitation. See Ohralik, supra 436 U.S. at 462, 98 S.Ct. at 1921. As to advertising in general, the Supreme Court has rejected a paternalistic approach in favor of assuming “that people will perceive their own best interests ...” if the channels of com- munication are left open. Virginia State Board of Pharmacy, supra 425 U.S. at 770, 96 S.Ct. at 1829. Zla first Amendment to regulate the sale, and the incidents thereof, of alcoholic beverages, and to protect its citizens from the evils incident to alcohol. See Ziffrin, supra 308 U.S. at 138-39, 60 S.Ct. at 167. The asserted state in- terest, therefore, is exceptionally strong. We must determine whether Oklahoma's laws directly advance its asserted governmental interest. The trial court found that the laws are at best an indirect means of advancing Oklahoma’s interest. In particular, the court noted that other means, such as early and con- tinuing education about the dangers of alcohol abuse, were available. In our view, the trial court misconceived the purpose of this inquiry. Central Hudson does not require that we determine whether Oklahoma has chosen the best means to advance its interest; rather the in- quiry is whether the means chosen by the legislature, however objectionable any court may find them, directly advance the asserted state interest. In undertaking this inquiry, we note the approach taken by the plurality in Metromedia in applying the third part of the Central Hudson test: ‘We likewise hesitate to disagree with the accumulated, common-sense judgments of local lawmakers and of the many review- ing courts that billboards are real and substantial haz- ards to traffic safety. There is nothing here to suggest that these judgments are unreasonable.” Metromedia, supra 453 U.S. at 509, 101 S.Ct. at 2893 (footnote omitted). In that case, the appellants argued that there was nothing in the record to show any connection be- tween billboards, which San Diego had essentially pro- hibited, and traffic safety, one of the asserted govern- mental interests. The California Supreme Court had held, nevertheless, that as a matter of law the ordinance eliminating billboards was reasonably related to traffic safety. Jd. at 508, 101 S.Ct. at 2893. The plurality agreed with that holding. /d. at 509, 101 S.Ct. at 2893. 22a In this appeal, the Appellees similarly argue, and the trial court agreed, that the record does not demonstrate that Oklahoma’s laws have any direct effect on the con- sumption of alcohol. In light of the plurality’s language in Metromedia, however, and particularly in light of the additional deference owed to the legislature as a result of the Twenty-tirst Amendment, Bellanca,'” supra, we hold, as a matter of law, that prohibitions against the advertising of alcoholic beverages are reasonably related to reducing the sale and consumption of those beverages and their attendant problems. The entire economy of the industries that bring these challenges is based on the belief that advertising increases sales. We therefore do not believe that it is constitutionally unreasonabie for the State of Oklahoma to believe that advertising will not only increase sales of particular brands of alcoholic beverages but also of alcoholic beverages generally. The choice of the Oklahoma legislature, and its people with respect to the constitutional provision, is not unreason- able, and does directly advance Okiahoma’s interest in reducing the sale, consumption, and abuse of alcoholic beverages, The final inquiry under the Central Hudson test is whether Oklahoma's laws are more extensive than is necessary to serve its interest. The trial court con- '” The regulations in question in Bellanca prevented nude dancing in establishments which sold liquor for on-premises consumption. Despite the fact that the regulation played a differeni role in New York's alcoholic beverage regulatory scheme than the laws here, we find the following language instructive: Whatever artistic or communicative value may xttach to topless dancing is overcome by the State’s exercise of its broad powers arising under the Twenty-first Amendment. Although some may quarrel with the wisdom of such legislation and may con- sider topless dancing a harmless diversion, the Twenty-first Amendment makes that a policy judgment for the state legis- lature, not the courts. Bellanca, supra 452 U.S. at 718, 101 S.Ct. at 2601. 23a cluded, and Appellees urge, that since with respect to Telecasters and the cable operators all rebroadcasting of alcoholic beverage advertising was prohibited, the laws were more extensive than necessary. Again, the plurality opinion in Metromedia is in- structive. In that case, San Diego's ordinance banned virtually all billboards, allowing only on-site advertising and other limited exceptions. According to the stipulated facts in the case, the result of the ordinance was to eliminate completely the outdoor advertising business in San Diego. Metromedia, supra 453 U.S. at 497, 101 S.Ct. at 2887. Nevertheless, noting in particular that on- site advertising and some other signs were specifically exempted from the ordinance, the plurality held that the ordinance was no broader than necessary. /d. at 508, 101 S.Ct. at 2893. We recognize, of course, that the plurality eventually did strike down the ordinance in Metromedia. It did so, however, only on the grounds that the ordinance violated the First Amendment protections for political and other noncommercial speech. Metromedia, supra at 513-17, 101 S.Ct. at 2895-97. The plurality’s analysis clearly distinguished between commercial and non-commercial speech. With respect to the commercial speech aspect of the case, the plurality applied the Central Hudson test and found that the ordinance was constitutional. Metro- media, supra at 507-09, 512, 101 S.Ct. at 2891-93, 2895. It is our view, therefore, that Oklahoma’s laws also pass the fourth and final test under Central Hudson. Even though Appellees are completely prohibited from re- broadcasting alcoholic beverage advertising, they are free to carry other forms of advertising. We recognize that the cable operators especially are placed in a difficult position; however, nothing in the First Amendment pro- hibits this result. See Metromedia, supra. On-premises advertising is allowed, the rebroadcast of beer advertis- ing is not prohibited, and alcoholic beverage advertising 24a in out-of-state printed publications distributed in Okla- homa is allowed. Although Appellees bear a dispropor- tionate burden of the regulation, Oklahoma has not elimi- nated the dissemination of information concerning alco- holic beverages. With particular emphasis on the power of Oklahoma under the Twenty-first Amendment, we hold that the advertising prohibitions here are no more ex- tensive than is necessary to serve Oklahoma’s asserted interest. Article XXVII, $5, of the Oklahoma Constitu- tion, and Section 516 of title 37 of the Oklahoma Stat- utes, are valid restrictions on commercial speech and do not violate the Appellees’ First Amendment rights. We again emphasize that the Central Hudson test is essentially a balancing test. When the Twenty-first Amendment is considered in addition to Oklahoma’s sub- stantial interest under its police power, the balance shifts in the state’s favor, permiting regulation of commercial speech that might not otherwise be permissible. We be- lieve that the Supreme Court’s summary dismissal in Queensgate mandates this result. We order that the permanent injunctions be dissolved and we reverse the district court’s summary declaratory judgments. McKAY, Circuit Judge, concurring: While I fully concur in the court’s opinion, I add this concurring statement to bring out an additional serious consequence of the alternative result. The section under attack in these cases was enacted by a vote of the people at large in a single referendum petition that included not only the regulatory scheme but the surrender by repeal of the Prohibition Ordinance, see Okla. Const., art. XXVII, $$ 1-11 (1981) ‘each section composed part of State Question No. 386, Referendum Petition No. 121 which was adopted at election held Apri! 7, 1959!. which had stood since statehood as the fundamental law of Oklahoma separately voted on by the people at large. The regula- tory package was clearly the quid pro quo for the sur- 25a renver after decades of dispute of this long held public standard. I have serious doubt that federal courts are at liberty glibly to sever and strike down one section of such an integrated state decision with its long and turbu- lent history. see Spokane Arcades, Inc. v. Brockett, 631 F.2d 185 (9th Cir. 1980), afd, 454 U.S. 1022, 102 S.Ct. 997, 70 L.Ed.2d 468 (1981), reh’g denied, 454 U.S. 1165, 102 S.Ct. 1040, 71 L.Ed.2d 322 (1982), without strik- ing down the whole and restoring the status quo ante whether any of the parties would desire such a result. 26a APPENDIX B UNITED STATES COURT OF APPEALS TENTH CIRCUIT Before Honorable James E. Barrett, Honorable Monroe G. McKay, and Honorable James K. Logan, Circuit Judges No. 82-1061 CABLECOM-GENERAL, INC., Cox CABLE OF OKLAHOMA CiTy, INC., MULTIMEDIA CABLEVISION, INC.. SAMMONS COMMUNICATION, INC., Plaintiffs-A ppellees, VS. RICHARD A. CRISP, Director, Alcohol Beverage Control Board, Defendant-A ppellant, SANE, INC., OKLAHOMA PRESS ASSOCIATION, OUTDOOR ADVERTISING ASSOCIATION OF OKLAHOMA, STATE OF MISSISSIPPI, Amici Curiae. This matter comes on for consideration of appellees’ petition for rehearing filed in the captioned cause. Upon consideration whereof, the petition for rehearing is denied. s Howard K. Phillips HOWARD K. PHILLIPS Clerk Date of Entry: March 21, 1983 27a APPENDIX C UNITED STATES COURT OF APPEALS TENTH CIRCUIT Before Honorable James E. Barrett, Honorable Monroe G. McKay, and Honorable James K. Logan, Circuit Judges No. 82-1061 CABLECOM-GENERAL. Inc., Cox CARE or OKLAHOMA City, INc., MULTIMEDIA CABLEVISION, INC.. SAMMONS COMMUNICATION, INC.. Plaintiffs-A ppellees, V NM RICHARD A. CRISP, Director. Alcohol Beverage Control Board. Defendant-A ppellant, SANE, INC., OKLAHOMA PREss ASSOCIATION, OUTDOOR ADVERTISING ASSOCIATION OF OKLAHOMA, STATE OF MISSISSIPPI, Amici Curiae. This matter comes on for consideration of appellees’ motion for stay of mandate in the captioned cause pend- ing application to the Supreme Court for certiorari. Upon consideration whereof, it is ordered that the man- date is stayed until May 4, 1983. pending certiorari and that if, on or before that date. there is filed with the Clerk of the Court of Appeals a notice from the Clerk of the Supreme Court of the United States that appellees have timely filed a petition for writ of certiorari in the Supreme Court, the stay shall continue until final dis- position by the Supreme Court. s’ Howard K. Phillips HowarD K. PHILLIPs Clerk Date of Entry: April 4, 1983 28a APPENDIX D IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA No. CIV-81-290-W CABLECOM-GENERAL, INC.; COX CABLE OF OKLAHOMA City, INC.; MULTIMEDIA CABLEVISION, INC.; AND SAMMONS COMMUNICATIONS, INC., Plaintiffs V. RICHARD A. CRISP, DIRECTOR, ALCOHOLIC BEVERAGE CONTROL BOARD, Defendant. PRELIMINARY INJUNCTION This cause came on for hearing on March 6, 1981 on plaintiffs’ Motion for Preliminary Injunction. All par- ties appeared by counsel. The Court, having heard the testimony of the witnesses and arqupent of counsel, finds as follows: 1. This action is brought against the defendant in his official capacity as the Director of the Alcoholic Bev- erage Control Board of the State of Oklahoma. De- fendant’s official duties include investigation of potential violations of Alcoholic Beverage Laws and aiding pros- ecution of violations. 37 O.S. $509. Oklahoma’s Aleco- holic Beverage Laws include a prohibition against ad- vertising alcoholic beverages. 2. Plaintiffs are operators of various cable television systems throughout the State of Oklahoma. As part of their programming, they relay to subscribers the signals of out of state television stations, which signals include commercials advertising alcoholic beverages. They seek a declaration that enforcement of Oklahoma laws _ pro- 29a hibiting advertisement of alcoholic beverages against them would violate their rights under the United States Constitution and an injunction prohibiting enforcement aga’nst them. 3. Defendant has made known his intention to recom- mend prosecution of plaintiffs if violations of the ad- vertising prohibition are brought to his attention. 4. Plaintiffs’ uncontradicted testimony showed that at- tempting to comply with the advertising prohibition pending final hearing of this action would entail enor- mous financial burden and would also. in many instances, place them in violation of United States law. 5. In some instances, the signals containing the aleo- holic beverage advertisements have been carried by cable systems in the state for over ten years, without previous challenge. 6. Plaintiffs are faced with a genuine threat that the advertising prohibition will be enforced against them, giving this Court jurisdiction to entertain this action. 7. Plaintiffs have demonstrated the probability that they would suffer irreparable injury if defendant is not enjoined from pursuing enforcement pending final hear- ing of this action. 8. Plaintiffs have demonstrated a sufficient probability of success to justify preliminary relief preserving the Status quo, particularly in light of the absence of any showing of injury-to defendant from the granting of such relief. IT IS THEREFORE ORDERED. that defendant, in his official capacity, his agents, employees, attorneys, and all persons in active concert or participation with him are hereby enjoined pending determination of this ac- tion from attempting to enforce or assisting or recom- mending any attempted enforcement of Oklahoma law 30a prohibiting advertisement of alcoholic beverages against these plaintiffs. LEE R. WEST United States District Judge Date of Entry: March 19, 1981 3la APPENDIX E IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA CIV-81-290-W CABLE-CoM GENERAL, INC.: Cox CABLE OF OKLAHOMA City, INc.: MULTIMEDIA (ABLEVISION, INC.: SAMMONS COMMUNICATION, INC.. Plaintiffs, Vs. RICHARD A. CRISP, Director, Alcoholic Beverage Control Board, Defendant. DECLARATORY JUDGMENT Pursuant to 28 U.S.C. § 2201, and in accordance with the Memorandum Opinion entered herein this 18th day of December, 1981, IT IS HEREBY ORDERED, ADJUDGED AND DE- CREED that enforcement of Article 27. § 5, of the Okla- homa Constitution or 37 O.S. (1971) $516 by the defendant, in his official capacity, his agents, employees, attorneys, and all persons in active concert or participa- tion with him, against the plaintiffs is or would be a violation of Plaintiffs’ First Amendment rights under the United States Constitution as guaranteed to the states by the Fourteenth Amendment. IT IS SO ORDERED this 18th day of December, 1981. s Lee R. West United States District Judge Date of Entry: December 18, 1981 32a APPENDIX F IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA CIV-81-290-W CABLE-COM GENERAL, INC.; Cox CABLE OF OKLAHOMA City, INcC.: MULTIMEDIA CABLEVISION, INC.; SAMMONS COMMUNICATION, INC., Plaintiffs, VS. RICHARD A. CRISP, Director, Alcoholic Beverage Control Board, Defendant. PERMANENT INJUNCTION In accordance with the Memorandum Opinion and Order entered herein this 18th day of December, 1981, IT IS HEREBY ORDERED that Defendant, in his official capacity, his agents employees, attorneys, and all persons in active concert or participation with him, are permanently enjoined from attempting to enforce or assisting or recommending any attempted enforcement of Article 27, $5, of the Oklahoma Constitution or 37 O.S. (1971) $516 against these plaintiffs. IT IS SO ORDERED this 18th day of December, 1981. s Lee R. West United States District Judge Date of Entry: December 18, 1981 33a APPENDIX G IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA CIV-81-290-W CABLE-COM GENERAL, INC.: Cox CABLE OF OKLAHOMA City, INC.; MULTIMEDIA CABLEVISION, INC.: SAMMONS COMMUNICATION, INC.. Plaintiffs, VS. RICHARD A, CRISP, Director, Aleoholic Beverage Control Board, Defendant. Richard C. Ford and Clyde A. Muchmore, 1800 Mid- America Tower, Oklahoma City, OK 73102, and Arthur H. Harding, FLEISHMAN AND .WALSH, 1725 N_ Street, N.W., Washington, D.C. 20036 for the plaintiff Cable- Com General, Ine. Marvin B. York and John W. Maile, BLEVINS & York, 1245 S.W. 44th St., Oklahoma City, OK 73109, and David P. Fleming of Dow, LoHNES & ALBERTSON, 1225 Con- necticut Ave., Washington, D.C, 20036 for the plaintiff Cox Cable of Oklahoma City, Ine. tobert Jernigan, 1200 N. Shartel, Oklahoma City, OK 73101, and David P. Fleming of Dow, LoHNES & AL- BERTSON, 1225 Connecticut Ave.. Washington, D.C. 20036 for the plaintiff Multimedia Cablevision, Inc. Jap W. Blankenship and Warren F. Bickford of FeLLERS, SNipek, BLANKENSHIP, BaILey @ TIPPENs. 2400 First National Center, Oklahoma City, OK 73102 and David P. Fleming of Dow, LoHNES & ALBERTSON, 1225 Connecticut Ave.. Washington, D.C. 20036 for the plaintiff Sammons Communication, Inc. 34a Jan Eric Cartwright, Attorney General, and Michael C. Conaway, Assistant Attorney General, 112 State Capi- tol Building, Oklahoma City, OK 73105 for Defendant. Jerry D. Sokolosky, 514 Park Harvey Center, 200 North Harvey, Oklahoma City, OK 73102 for Amicus Curiae Oklahoma Press Association. Larry Derryberry of DERRYBERRY, DUNCAN & NANCE, 4420 North Lincoln Boulevard, Oklahoma City, OK 73105 for Amicus Curiae S.A.N.E., Inc. MEMORANDUM OPINION AND ORDER Before the Honorable Lee R. West, United States District Judge. Introduction Plaintiffs are corporations qualified to do business in Oklahoma and are holders of cable television franchises in the state of Oklahoma. They have franchises through- out the state including operations in Canadian, Ottawa, Oklahoma, Tulsa, Kiowa, Greer, and Noble Counties. laintiffs relay to paid subscribers the signals of various television stations, some of which originate outside Oklahoma. Defendant is the Director and Secretary to the Board of the Alcoholic Beverage Control Board, an agency of the State of Oklahoma charged with primary responsi- bility for the enforcement of Oklahoma law relating to alcoholic beverages. Director Crisp is sued only in his official capacity. Some of the programming which Plaintiffs relay to their customers includes advertisements for wine. .an alcoholic beverage as defined in Article 27, $5 of the Oklahoma Constitution, and 37 O.S. £506 (1971). This advertising is lawful where originated but prohibited in or ova Oklahoma. Plaintiffs seek a declaratory judgment that, as applied to Plaintiffs, the provisions of Oklahoma’s Constitution and laws prohibiting advertisement of alco- holic beverages violate Plaintiffs’ constitutional rights. The case was filed on March 3, 1981, and on March 6, 1981, following an evidentiary hearing, the Court pre- liminarily enjoined Defendant from attempting to en- force the challenged provisions against Plaintiffs during the pendency of this action. That injunction remains in force and Plaintiffs seek to have it made permanent to prohibit Defendant from attempting to enforce or assist- ing any attempted enforcement as threatened against Plaintiffs. Plaintiffs have moved for summary judgment pursuant to Rule 56, F.R.Civ.P., on the grounds that the consti- tutional and statutory ban on advertising violates the plaintiffs’ First Amendment right to freedom of speech. Plaintiffs also contend the ban is a violation of Plaintiffs’ right to equal protection under the law. The Oklahoma Press Association has filed an amicus curiae brief in | support of Plaintiffs’ Motion for Summary Judgment. Defendant has filed a Motion to Dismiss pursuant to Rule 12(b) (6), F.R.Civ.P. Defendant contends that be- cause the Twenty-first Amendment grants a broad sweep of power to Defendant to regulate the liquor industry, the passage of Okla. Const., art. 27, $5 and the enact- ment of 37 O.S. $516 (1971) do not violate the freedom of speech protection of the First Amendment. Defendant further contends that no equal protection violation is manifest in the laws in question because they bear a rational relationship to the legitimate governmental goal of protecting the health, safety, and welfare of the people of Oklahoma. Defendant contends that quasi-judicial and prosecutorial immunity of Richard A. Crisp bars a claim under 42 U.S.C. § 1988. S.A.N.E. Ine. has filed an amicus curiae brief in support of Defendant’s Motion to Dismiss. 36a District Court Jurisdiction The plaintiffs invoke the jurisdiction of this Court pur- suant to 28 U.S.C. $§ 1831, 1348, 2201. and 42 U.S.C. $1983. Defendant in its answer denies jurisdiction, claiming that the Court should abstain because no fed- eral question is [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0896%3A01. Public record. Not legal advice.