Amicus Curiae Brief — 44 Liquormart, Inc. and Peoples Super Liquor Stores, Inc., v. Rhode Island, and Rhode Island Liqor Stores Association

4

'

AdOD J1VTIVAY 1$38

No wee ee

2 irre , ~ ° _——EE = NN

QUESTION PRESENTED

Whether Rhode Island may, consistent with the

First Amendment, prohibit truthful, non-misleading

price advertising regarding alcoholic beverages.

(i)

Taal | -_

mia, ee =]

TABLE OF CONTENTS

Eg 8s. yy} |

TABLE OF AUTHORITIES ........... iiaiideishiddialastespiemineon

INTEREST OF THE AMICI CURIAE ..........................

Gy

LE

I.

II.

RHODE ISLAND’S LIMITATION ON ALCO-

HOL PRICE ADVERTISING SATISFIES

I i cnscinceectnnessenescnenevevesssosensee

A. The Price Advertising Restriction “Directly

And Materially” Advances Rhode Island’s

Interest In Temperance .................. Seah

B. Rhode Island’s Restriction Is “Narrowly

AN ADVERTISING RESTRICTION IS A

CONSTITUTIONALLY PERMISSIBLE

MEANS OF REGULATING A SOCIALLY

HARMFUL PRODUCT OR ACTIVITY OVER

WHICH THE STATE HAS EXTRAORDI-

NARY CONTROL AND WHICH IT COULD

a

A. Aleohol Is A Unique Product Over Which

States Historically Have Had Extraordinary

Ee a

B. The Court Has Consistently Upheld Adver-

tising Regulations Where Harmful Products

Or Activities Are Involved 0.00000... x

EG

Page

16

19

19

27

iv

TABLE OF AUTHORITIES

Cases Page

324 Liquor Corp. v. Duffy, 479 U.S. 335 (1987)... 8, 20

Bigelow v. Virginia, 421 U.S. 809 (1975) -.............. 21

Board of Trustees of State Univ. of N.Y. v. Foz,

GE TE See GD hicticiitnisielicinicmmnd 6, 9,17, 18

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691

III. ccocesnsitacslend aiemumsieeemamaheduindienaainamaiaeaalacan ia aaannaa 13

Central California Retail Liquor Dealers Ass’n v.

Midcal Aluminum, Inc., 445 U.S. 97 (1980)... 20

Central Hudson Gas & Elec. Corp. v. Public Serv.

Comm'n of N.Y., 447 U.S. 557 (1980) -.............. passim

Clark Distilling Co. v. Western Maryland Ry. Co.,

SD Ts See IEE sccnticcanteteneinedentnciibainieinenancdaires 21

Columbia Broadcasting System, Inc. v. Democratic

Nat'l Comm., 412 U.S. 94 (1978) ........................- 11

Crane v. Campbell, 245 U.S. 304 (1917) ................ 20-21

Dunagin v. City of Oxford, 718 F.2d 738 (5th

Cir. 1983), cert. denied, 467 U.S. 1259 (1984) .... 16

Edenfield v. Fane, 113 S.Ct. 1792 (1993) -.............. passim

Florida Bar v. Went For It, Inc., 115 8.Ct. 2371

SUTIITI nic‘siscestiivasdnindbchtcibeiieoicealaeianieniamaiiampeiiaiedininaadianl passim

Metromedia, Inc. v. City of San Diego, 453 U.S.

GI ED ectinesnccishstpininiaidelscthiahinbicibeadinegticdadiadaa ll 9-10, 11

New York Liquor Authority v. Bellanca, 452 U.S.

BE GED cinccsccnsnsisiectceabadictiatticsnadaiinaaaediicaiaiiae 24

North Dakota v. United States, 495 U.S. 423

Se mM ds oS ERE. 19-20

Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447

() NESS es ite Fal ATS TERRE 6

Oklahoma Telecasters Ass’n v. Crisp, 699 F. 2d 490

(10th Cir. 1983), rev’d, 467 U.S. 691 (1984)... 16

Pittsburgh Press Co. v. Human Relations Comm'n

rR S OF ES eae 6

Posadas de Puerto Rico Associates v. Tourism

Co. of Puerto Rico, 478 U.S. 328 (1986) -............ passim

Queensgate Inv. Co. v. Liquor Control Comm’n,

433 N.E.2d 138 (Ohio), appeal dismissed, 459

Sy Te IE ciccercicrettniiinantivceeneccnnitcduliniiaasalae 2-3, 15-16

Rhode Island Liquor Stores Ass’n v. The Evening

Call Publishing Co., 497 A.2d 331 (R.I. 1985) .... 8

Vv

TABLE OF AUTHORITIES—Continued

Page

Rice v. Rehner, 463 U.S. 713 (1988) -.......000000.0....... 20

Rubin v. Coors Brewing Co., 115 S.Ct. 1585

REI RS RNS RAIS AVS RAMe AAD CB RAR Y Seo Le aE 14

S & S Liquor Mart, Inc. v. Pastore, 497 A.2d 729

I a 8

Seaboard Air Line Ry. v. State of North Carolina,

I a I Oa 24

Turner Broadcasting System v. FCC, 114 S.Ct.

a I a le eA 10, 11,13

United States v. Edge Broadcasting Co., 113 S.Ct.

I a Aiea dadibiieens passim

Virginia State Bd. of Pharmacy v. Virginia Citi-

zens Consumer Council, 425 U.S. 748 (1976)... 6,12

Walters v. National Ass’n of Radiation Survivors,

ee ee eiusiiinees 26

Wisconsin v. Constantineau, 400 U.S. 433 (1971).. 20

Zauderer v. Office of Disciplinary Counsel, 471

os esbansoniieliclanedaes 14

Ziffrin, Inc. v. Reeves, 308 U.S. 132 (1939) ........... 2, 22

Statutes

REESE SET aS ER eC Ran eee 25

I ad couiienlindienis 25

Ohio Rev. Code Ann. § 4301.03 (EB) .......0000000000. 25

Ohio Rev. Code Ann. § 4801.211 ...00000. on. 25

es I: TEE MI crncscstccscdnncescntecsegptscuedtadetevsessneuies 3,8

Other Authorities

William Baumol, “The Empirical Determination

of Demand Relationships,” in Microeconomics:

Selected Readings (Edwin Mansfield, ed., 3d ed.

1979) ........ haa anniialaatoiiantnatinsaiindtstacntaeetisdanabiegtabemibenibnds 12

The Joint Committee of the States to Study Alco-

holic Beverage Laws, Alcoholic Beverage Control

5 RE A SURE ey seein 22, 23

Note, Economic Localism in State Alcoholic Bever-

age Laws—Experience Under the Twenty-First

Amendment, 72 Harv. L. Rev. 1145 (1959) .....22-23, 23

vi

TABLE OF AUTHORITIES—Continued

Page

Dorothy P. Rice, The Economic Cost of Alcohol

Abuse and Alcohol Dependence: 1990, 17 Alco-

hol Health & Research World 10 (1993) ............. 19

U.S. Department of Health and Human Services,

Eighth Special Report to the U.S. Congress on

Alcohol and Health (1998) ..............-....----...---000-+- 19

U.S. Department of Justice, Bureau of Justice

Statistics, Sourcebook of Criminal Justice Sta-

ED CIID <ocvcscavsvasceninsctoniinnvemneepenedensmenden 3,19

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 94-1140

44 LIQUORMART, INC. and

PEOPLES SUPER LIQUOR STORES, INC.,

- Petitioners,

STATE OF RHODE ISLAND and

RHODE ISLAND LIQUOR STORES ASSOCIATION,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF OF THE

COUNCIL OF STATE GOVERNMENTS,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, NATIONAL LEAGUE OF CITIES,

U.S. CONFERENCE OF MAYORS, AND

NATIONAL CONFERENCE OF STATE LEGISLATURES

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include state,

county, and municipal governments and officials

throughout the United States, have a compelling in-

2

terest in legal issues that affect state and local gov-

ernments. State and local governments have always

been vitally concerned with protecting the health and

well-being of their citizens and possess broad police

powers to legislate towards those ends. Specifically,

States have historically had extremely broad power

to regulate aleohol—a substance of tremendous de-

structive potential.

This Court, in applying the four-part test for reg-

ulation of commercial speech set forth in Central

Hudson Gas & Elec. Co. v. Public Serv. Comm’n of

N.Y., 447 U.S. 557 (1980), has consistently recog-

nized that reasonable minds may differ as to the best

approach to complex societal problems. See, e.g.,

United States v. Edge Broadcasting Co., 113 S. Ct.

2696, 2704 (1993). Accordingly, a legislature need

not show that a regulatory measure touching on com-

mercial speech is a perfect or uncontroversial solution

—a showing that is frequently impossible. Petition-

ers urge a reading of Central Hudson which ignores

this reality, insisting instead that a legislature attain

absolute certainty and produce uncontroverted em-

pirical proof before proceeding with any restriction

on commercial speech. Such an approach, which is at

odds with this Court’s holdings, would severely con-

strain States in their efforts to address important

social problems.

The dangers associated with constricting States’

legislative powers through an erroneously narrow

application of the Central Hudson test are magnified

in this case, since the regulation at issue involves an

extraordinarily dangerous product—alcohol. See

Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138-39 (1939) ;

Queensgate Inv. Co. v. Liquor Control Comm'n, 433

N.E.2d 138, 141-42 (Ohio), appeal dismissed, 459

3

U.S. 807 (1982). The devastating, often deadly, ef-

fects of alcohol abuse are well known. See, e.g., U.S.

Department of Justice, Bureau of Justice Statistics,

Sourcebook of Criminal Justice Statistics—1993 349

(Table 3.104) (1994) (of 39,235 motor vehicle fatal-

ities in 1992, approximately 45% were alcohol-

related). Rhode Island, like other States, has sought

to alleviate the severe problems resulting from alco-

hol abuse by regulating liquor advertising. See Br.

of Resp. Rhode Island at 9 n.5.

Because of the importance of these issues to amici

and their members, amici submit this brief to assist

the Court in its resolution of this case.'

SUMMARY OF ARGUMENT

1. Because the Rhode Island alcohol price adver-

tising restriction at issue in this case limits pure

commercial speech, its validity turns on the applica-

tion of the four-part test set forth in Central Hudson

Gas & Elec. Co. v. Public Serv. Comm’n of New York,

447 U.S. 557 (1980). The parties have stipulated

that the statute limits speech which is not misleading

and which does not involve illegal activity, and that

Rhode Island’s stated interest—“the promotion of

temperance,” R.I Gen. Laws § 3-1-5—is “substan-

tial.” Thus, only the last two prongs of Central Hud-

son’s test are at issue: whether the regulation “di-

rectly and materially” advances Rhode Island’s

interest in promoting temperance; and whether the

regulation is “narrowly tailored” to achieve that ob-

jective. The statute clearly satisfies these two prongs,

as they have been interpreted by this Court.

‘The parties have consented to the filing of this brief

amicus curiae. Letters indicating their consent have been

filed with the Clerk of the Court.

4

Petitioners’ contention that Rhode Island’s alcohol

price advertising restriction does not “directly ad-

vance” the goal of temperance is premised on a read-

ing of that requirement that cannot be squared with

the Court’s opinions. Recognizing that the compli-

cated, intractable problems which legislatures regu-

larly face are rarely susceptible of easy or uncontro-

versial solutions, this Court has not required a

legislature to demonstrate that a particular measure

is guaranteed to work perfectly or that it is unani-

mously endorsed by experts in the field. Instead, the

Court has required that the legislature have some

evidentiary basis beyond “mere speculation and con-

jecture,” Edenfield v. Fane, 113 S.Ct. 1792, 1800

(1993), upon which it could base a reasonable belief

in the efficacy of the regulation. See, e.g., Posadas de

Puerto Rico Associates v. Tourism Co. of Puerto

Rico, 478 U.S. 328, 341-42 (1986); United States v.

Edge Broadcasting Co., 113 S.Ct. 2696, 2704 (1993).

Without question, the Rhode Island legislature has

met this burden. The Court has consistently viewed

as reasonable a legislature’s belief that restricting

advertising of a commodity will decrease consumption

of that commodity. See, e.g., Posadas, 478 U.S. at

341-42; Edge, 113 S.Ct. at 2704. The evidence pre-

sented by Rhode Island provided an ample basis for

making a similar “cormmonsense judgment” here. See

Edge, 113 S.Ct. at 2704.

Petitioners’ contentions with respect to Central

Hudson’s requirement that the regulation be “nar-

rowly tailored” suffer from a similar defect. A legis-

lature need not consider every imaginable alternative

or prove that the one it selected is the least re-

strictive of speech. Instead, a regulation need only

5

be “reasonably well-tailored to its stated objective.”

Florida Bar v. Went For It, Inc., 115 S.Ct. 2371,

2380 (1995). The Rhode Island statute, which is tar-

geted at a single element within alcohol advertising,

easily meets this requirement.

2. An advertising restriction is a constitutionally

permissible means of addressing overconsumption of

a socially harmful commodity which the State has

the power to prohibit entirely. Without question,

States enjoy extraordinary regulatory power over

alcohol. Indeed, States’ broad police powers with

respect to alcohol predate the Twenty-first Amend-

ment and exist independent of the powers granted

therein. Because alcohol is a potentially harmful

commodity which the State could ban entirely, the

State may choose instead to limit efforts to stimulate

demand for it.

Nor does the inapt charge of “paternalism” call

the legitimacy of such a measure into question. There

is nothing “paternalistic” about a State’s efforts to

prevent citizens from engaging in conduct, such as

alcohol abuse, which directly harms others and im-

poses immense costs on society. It is a fundamental

function of government that when individuals make

socially harmful decisions, the government may use

means at its disposal to alter those decisions—in-

cluding, in appropriate cases, restrictions on com-

mercial speech.

6

ARGUMENT

I. RHODE ISLAND’S LIMITATION ON ALCOHOL

PRICE ADVERTISING SATISFIES CENTRAL

HUDSON

At issue in this case are limitations placed on peti-

tioners’ ability to engage in price advertising of al-

cohol, a form of pure commercial speech “which does

‘no more than propose a commercial transaction.’ ”’

Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council, 425 U.S. 748, 762 (1976) (quot-

ing Pittsburgh Press Co. v. Human Relations

Comm'n, 413 U.S. 376, 385 (1973)). As the Court

reaffirmed this past Term, such “ ‘[c]ommercial

speech [enjoys] a limited measure of protection, com-

mensurate with its subordinate position in the scale

of First Amendment values,’ and is subject to ‘modes

of regulation that might be impossible in the realm

of noncommercial expression.’” Florida Bar v. Went

For It, Ine., 115 §.Ct. 2371, 2375 (1995) (quoting

Board of Trustees of State Univ. of N.Y. v. Fox,

492 U.S. 469, 477 (1989), quoting Ohralik v. Ohio

State Bar Ass’n, 486 U.S. 447, 456 (1978)); see

also Edge, 113 S.Ct. at 2703. Accordingly, the alcohol

price advertising restriction at issue here is subject

to “ ‘intermediate’ scrutiny . . . under the framework

set forth in Central Hudson.” Went For It, 115 S.Ct.

at 2375-76 (citation omitted).

With respect to Central Hudson’s threshold inquiry,

the parties agree that the price advertising at issue

is not misleading and does not concern unlawful ac-

tivity. Pet. App. 43a; see Central Hudson, 447 U.S.

at 563-64. The Court in Went For It restated the

remaining portions of the Central Hudson test as

follows:

7

Commercial speech that falls into neither of

those categories [speech that concerns unlawful

activity or is misleading], may be regulated if

the government satisfies a test consisting of

three related prongs: first, the government must

assert a substantial interest in support of its

regulation; second, the government must demon-

strate that the restriction on commercial speech

directly and materially advances that interest;

and third, the regulation must be “ ‘narrowly

drawn.’ ”’

115 S.Ct. at 2376 (quoting Central Hudson, 447 U.S.

at 564-65).

The parties have further stipulated that Rhode

Island’s interest in combatting alcohol abuse and pro-

moting temperance is “substantial” under Central

Hudson. Pet. App. 43. Thus, the constitutionality

of Rhode Island’s alcohol price advertising restric-

tion turns on the final two prongs of Central Hudson:

the restriction must “directly and materially ad-

vance[]”’ the State’s interest, and the restriction

must be “narrowly drawn.” As amici demonstrate

below, Rhode Island’s statute satisfies both of these

requirements.

A. The Price Advertising Restriction “Directly and

Materially” Advances Rhode Island’s Interest in

Temperance

The starting point for assessing whether the

State’s interest is directly and materially advanced

by the regulation is to “identify with care the inter-

ests the State itself asserts,” because “[u]nlike ra-

tional basis review, the Central Hudson standard

does not permit [a court] to supplant the precise

interests put forward by the State with other sup-

8

positions.” Edenfield v. Fane, 113 S.Ct. 1792, 1798

(1993). The interest asserted by Rhode Island in

support of the legislation is straightforward: “the

promotion of temperance.” R.I. Gen. Laws § 3-1-5.

Thus, the question under this prong of Central Hud-

son is whether this asserted interest—the promotion

of temperance—is directly and materially advanced

by the legislation at issue.”

2 Petitioners and their amici have sought to introduce an

additional element into this inquiry by suggesting that

Rhode Island’s asserted interest in temperance was not the

true motive for the legislation. Pet. Br. 21; Br. Am. Cur.

Ass’n of Nat’l Advertisers et al. 20-21. This is a red herring.

This Court’s opinions make clear that speculation as to pos-

sible unstated motives for legislation has no place in the

Central Hudson analysis. See Edenfield, 113 S.Ct. at 1798.

As the Court explained in Edenfield, the requirement that the

legislation directly advance the asserted interest provides the

necessary check against subterfuge and pretext: ‘Without

this requirement, a State could with ease restrict commercial

speech in the service of other objectives that could not them-

selves justify a burden on commercial expression.” 113 S.Ct.

at 1800. Central Hudson does not call upon courts to conduct

independent investigations into the hearts and minds of in-

dividual legislators to divine possible hidden motivations. It

simply requires that the asserted interest be directly advanced

by the legislation.

Moreover, the Rhode Island Supreme Court, which has

upheld the validity of the challenged statute, did not make

any finding that would support the existence of an ulterior

motive. See Rhode Island Liquor Stores Ass’n v. The Evening

Call Publishing Co., 497 A.2d 331 (R.I. 1985); S & S Liquor

Mart, Inc. v. Pastore, 497 A.2d 729 (R.I. 1985); see also 324

Liquor Corp. v. Duffy, 479 U.S. 335, 351 (1987) (“We...

accord ‘great weight to the views of the State’s highest court’

on state-law matters, and customarily accept the factual find-

ings of state courts in the absence of exceptional circum-

stances.”) (citations omitted).

9

A uumber of recent decisions have fleshed out

the meaning of this requirement. Petitioners’ con-

tentions to the contrary, the test plainly does not

require that a State produce uncontroverted, con-

clusive empirical evidence that its asserted interest

will be directly and materially advanced. While the

test “is not satisfied by mere speculation or conjec-

ture,” Edenfield, 113 S.Ct. at 1800, neither does it

require production of evidence of a quality and quan-

tity that might be necessary to convince a trier of

fact of the truth of a particular matter. It requires

only a basis sufficient to support a reasonable belief

on the part of the legislature as to the measure’s

efficacy. In Posadas de Puerto Rico Associates v.

Tourism Co. of Puerto Rico, 478 U.S. 328 (1986),

for example, the Court upheld a restriction on the

advertising of casino gambling, explaining that

[t]he Puerto Rico Legislature obviously believed,

when it enacted the advertising restrictions at

issue here, that advertising of casino gambling

aimed at the residents of Puerto Rico would

serve to increase the demand for the product

advertised. We think the legislature’s belief is

a reasonable one[. ]

Id. at 341-42. See also Fox, 492 U.S. at 480 (Central

Hudson requires “a fit [between legislative means

and ends] that is not necessarily perfect, but reason-

able.”’).

Far from imposing a requirement that exhaustive

empirical data be presented to support a restriction

on commercial speech, the Court has deferred to a

legislature’s “commonsense judgment” as to a meas-

ure’s likely effects. Edge, 113 S.Ct. at 2704; see also

Metromedia, Inc. v. City of San Diego, 453 U.S.

10

490, 509 (1981) (plurality opinion). While “the def-

erence afforded to legislative findings does ‘not fore-

close our independent judgment of the facts bearing

on an issue of constitutional law,’” Turner Broad-

casting System v. FCC, 114 S.Ct. 2445, 2471 (1994)

(plurality opinion) (citations omitted), “[t]his obli-

gation to exercise independent judgment when First

Amendment rights are implicated is not a license to

reweigh the evidence de novo, or to replace [the legis-

lature’s] factual predictions with our own. Rather,

it is to assure that, in formulating its judgments, [the

legislature] has drawn reasonable inferences based

on substantial evidence.” Jd. (plurality opinion) ; see

also id. at 2473 n.1 (Stevens, J., concurring).

There are compelling practical reasons for this

approach. Courts are much less suited than legisla-

tures to sort through the available evidence and make

precise predictions in areas where predictions of any

kind are difficult. In Turner, Justice Kennedy ex-

plained as follows the need for deference to the

legislature:

[C]ourts must accord substantial deference to

the predictive judgments of Congress. ... Sound

policymaking often requires legislators to fore-

cast future events and to anticipate the likely

impact of these events based on deductions and

inferences for which complete empirical support

may be unavailable. As an institution, Congress

is far better equipped than the judiciary to

“amass and evaluate the vast amounts of data”

bearing upon an issue as complex and dynamic

as that presented here.

Id. at 2471 (plurality opinion) (internal citations

omitted); see also id. at 2472 (Blackmun, J., con-

11

curring) (emphasizing “the paramount importance

of according substantial deference to the predictive

judgments of Congress’’) ; id. at 2473 & n.1 (Stevens,

J., concurring).

Thus, “[t]he judgment of the Legislative Branch

cannot be ignored or undervalued simply because

[appellant] casts its claims under the umbrella

of the First Amendment.” Colwmbia Broadcasting

System, Inc. v. Democratic Nat’l Comm., 412 U.S.

94, 103 (1973), cited in Turner, 114 S.Ct. at 2471

(plurality opinion); see also Metromedia, 453 U.S.

at 509 (plurality opinion) (“[w]e .. . hesitate to

disagree with the accumulated, common-sense judg-

ments of local lawmakers and of the many reviewing

courts” given that “[t]here is nothing here to sug-

gest that these judgments are unreasonable’).

The considerations which require judicial deference

to legislative bodies are plainly involved here. Eco-

nomic predictions are notoriously difficult to make,

as Justice Stevens noted in his concurrence in

Turner:

Economic measures are always subject to second-

guessing; they rest on inevitably provisional and

uncertain forecasts about the future effect of

legal rules in complex conditions. Whether Con-

gress might have accomplished its goals more

efficiently through other means; whether it cor-

rectly interpreted emerging trends in the protean

communications industry; and indeed whether

must-carry is actually imprudent as a matter of

policy will remain matters of debate long after

the 1992 Act has been repealed or replaced by

successor legislation.

114 S.Ct. at 2473 (Stevens, J., concurring) (footnote

omitted).

12

The uncertainty attending economic predictions is

especially acute when economists attempt to deter-

mine the effect of adding or deleting one particular

item of information, such as price, from the mix of

information otherwise available to consumers. In Vir-

ginia Pharmacy Board, 425 U.S. at 765 n.20, the

Court recognized that “[t]he task of predicting the

effect that a free flow of drug price information

would have on the production and consumption of

drugs is a hazardous and speculative one.” Such de-

terminations are highly problematic because they

require insight into consumer demand in hypothetical

situations. See generally William Baumol, “The Em-

pirical Determination of Demand Relationships,” in

Microeconomics: Selected Readings 55 (Edwin Mans-

field, ed., 3d ed. 1979) (discussing difficulty of eval-

uating impact of factors such as advertising on con-

sumer demand).

The lack of certainty attending economic predic-

tions as to consumer behavior in the present case was

emphasized by both the court of appeals and the dis-

trict court. See Pet. App. 6 (opinion of court of

appeals) (noting that expert opinion is divided on

effects of price advertising, and that “ ‘advertising

has cumulative effects that are difficult to detect in

studies, and that research studies have been varied

and equivocal because it is a difficult topic to re-

search’”’) (quoting plaintiffs’ expert); Pet. App. 22

(opinion of district court) (‘‘not[ing] a pronounced

lack of unanimity among researchers who have

studied the effects of alcohol advertising. No less

than twelve different conclusions have been reached

regarding the impact of advertising on the general

consumption of alcoholic beverages.’’) (citing Tr.

3/11/93 at 50-51).

13

Such a lack of consensus does not, however, con-

sign the legislature to paralysis. Any difficult and

complicated social issue will engender differing views

and will inevitably be the subject of contradictory

and inconclusive expert opinions and studies. The

existence of countervailing evidence does not in itself

impugn the reasonableness of a legislature’s judg-

ment about the link between advertising and con-

sumption. In Capital Cities Cable, Inc. v. Crisp, 467

U.S. 691, 715 (1984), for example, the Court ob-

served that “[a]lthough the District Court found

that ‘consumption of alcoholic beverages in Oklahoma

has inereased substantially in the last 20 years de-

spite the ban on advertising of such beverages,’ we

may nevertheless accept Oklahoma’s judgment that

restrictions on liquor advertising represent at least

a reasonable, albeit limited, means of furthering the

goal of promoting temperance in the State.” (cita-

tion omitted ).

Nor should a court wade through competing tech-

nical information to decide the truth of the matter

for itself. Instead, a court is charged with the far

more limited task of determining whether some evi-

dence exists upon which a legislature could base a

reasonable belief in the efficacy of its solution,

whether that evidence is empirical, anecdotal, or de-

rived from precepts of common sense. See Posadas,

478 U.S. at 341-42; Edge, 113 S.Ct. at 2704-2705;

see also Turner, 114 S.Ct. at 2473 (Stevens, J., con-

curring) (‘the question for us is merely whether

Congress could fairly conclude that cable operators’

monopoly position threatens the continued viability

of broadcast television and that must-carry is an ap-

propriate means of minimizing that risk’’).

14

Only in the absence of such evidence may a court

strike down legislation under Central Hudson’s third

prong. See Went For It, 115 S.Ct. at 2377 (noting

that in Edenfield the Court rejected a limitation on

speech only after finding no evidence of any kind

(not even anecdotal) that would suggest a connection

between the regulation and the cited inte ‘est; indeed,

the only evidence presented tended to disprove the

existence of such a connection) (citing Edenfield, 113

S.Ct. at 1800); Zauderer v. Office of Disciplinary

Counsel, 471 U.S. 626, 648 (1985) (“nowhere does

the State cite any evidence or authority of any

kind’’).*

Here, there is an evidentiary basis sufficient to

support a legislative belief that a limitation on price

advertising would promote temperance. See Br.

Resp. Rhode Island 21-28. Indeed, the Court has

consistently viewed as reasonable a_legislature’s

belief that decreasing advertising of a socially harm-

ful commodity will decrease consumption of that

commodity. For example, in Posadas the Court

found reasonable the legislature’s apparent belief that

banning casino gambling advertising directed at resi-

dents would reduce gambling on their part. 478 U.S.

at 341-42. Similarly, in Central Hudson the Court

recognized that “[t]here is an immediate connection

between advertising and demand for electricity.”

447 U.S. at 569. See also Edge, 113 S.Ct. at 2704

(Court had “no doubt” that banning of ads by sta-

tions licensed by a State would support State’s anti-

gambling policy).

3A legislative scheme that pursues internally inconsistent

objectives will also be struck down. See Rubin v. Coors Brew-

ing Co., 115 S.Ct. 1585, 1592-93 (1995).

Peed BE Se Me ee Ce

” ne

ee ae

15

This Court has credited the presumed relationship

between advertising and demand even where the lim-

itation on advertising is incomplete, or where there

is reason to believe that the effects of the measure

will be diluted by information emanating from other

sources. As the Court explained in Edge:

Here, as in Posadas de Puerto Rico, the Govern-

ment obviously legislated on the premise that the

advertising of gambling serves to increase the

demand for the advertised product. Congress

clearly was entitled to determine that broadcast

of promotional advertising of lotteries under-

mines North Carolina’s policy against gambling,

even if the North Carolina audience is not

wholly unaware of the lottery’s existence. Con-

gress has, for example, altogether banned the

broadcast advertising of cigarettes, even though

it could hardly have believed that this regulation

would keep the public wholly ignorant of the

availability of cigarettes.

113 S.Ct. at 2707 (citations omitted). The Court in

Edge went on to conclude:

If there is an immediate connection between

advertising and demand, and the federal regula-

tion decreases advertising, it stands to reason

that the policy of decreasing demand for gam-

bling is correspondingly advanced. Accordingly,

the Government may be said to advance its pur-

pose by substantially reducing lottery advertis-

ing, even where it is not wholly eradicated.

Id.

Likewise, courts have upheld advertising regula-

tions similar to Rhode Island’s under Central Hud-

son; these decisions have, in turn, been cited with

approval by this Court. For example, in Queensgate

16

Inv. Co. v. Liquor Control Comm’n, 433 N.E.2d 138,

142 (Ohio), appeal dismissed, 459 U.S. 807 (1982),

the Ohio Supreme Court upheld a ban on alcohol price

advertising, finding that “[t]he advertising of drink

prices and price advantages would encourage and

stimulate excessive consumption of alcoholic bever-

ages; an advertising prohibition aids the interest in

preventing that consumption.” See Dunagin v. City

of Oxford, 718 F.2d 738, 750 (5th Cir. 1983) (en

banc) (“we hold that sufficient reason exists to believe

that advertising and consumption are linked to justify

the [liquor advertising] ban, whether or not ‘concrete

scientific evidence’ exists to that effect”), cert. de-

nied, 467 U.S. 1259 (1984); Oklahoma Telecasters

Ass’n v. Crisp, 699 F.2d 490, 501 (10th Cir. 1983)

(“prohibitions against the advertising of alcoholic

beverages are reasonably related to reducing the sale

and consumption of those beverages and their attend-

ant problems”), rev’d on other grounds, 467 U.S.

691 (1984); see also Edge, 113 S.Ct. at 2707 (citing

Queensgate); Posadas, 478 U.S. at 347 n.10 (citing

Queensgate, Dunagin, and Crisp).

In sum, it is clear that the Rhode Island legisla-

ture had a sufficient foundation upon which it could

base its reasonable belief that the alcohol price ad-

vertising ban would promote temperance. Accord-

ingly, under this Court’s precedents, the regulation

satisfies the requirement that it “directly and mate-

rially advance” that interest.

FP. Rhode Island’s Restriction Is “Narrowly Drawn”

The fourth prong of the Central Hudson test, as

originally formulated, required that a regulation be

“no more extensive than necessary.” 447 U.S. at

ee ee ae ek CR tl ee ete neh OT ee Bole ee tot weeds ae) AL

7

17

569-70. It is new well settled, however, that this

does not equate to a “least restrictive means”

analysis:

What our decisions require is a “ ‘fit’ between

the legislature’s ends and the means chosen to

accomplish those ends,”—a fit that is not neces-

sarily perfect, but reasonable; that represents

not necessarily the single best disposition, but

one whose scope is “in proportion to the interest

served,” that employs not necessarily the least

restrictive means but, as we have put it in the

other contexts discussed above, a means narrowly

tailored to achieve the desired objective. Within

these bounds, we leave it to governmental deci-

sionmakers to judge what manner of regulation

may best be employed.

Fox, 492 U.S. at 480 (citations omitted). See also

Went For It, 115 S.Ct. at 2380 (restriction on com-

mercial speech must be “narrowly tailored,” or

“reasonably well-tailored to its stated objective’’)

(emphasis added); Edge, 113 S.Ct. at 2705 (in

analyzing fourth prong of Central Hudson, “our

commercial speech cases require a fit between the

restriction and the government interest that is not

necessarily perfect, but reasonable”’).

In rejecting a least restrictive means analysis, the

Fox Court emphasized the deference that courts must

accord a legislature’s choice of means. 492 U.S. at

480-81. For example, in Posadas the Court upheld

a ban on casino gambling advertising directed at

Puerto Rican residents without inquiring as to

whether less restrictive means (such as “counter-

speech”) could have served the same purpose:

We think it is up to the legislature to decide

whether or not such a “counterspeech” policy

18

would be as effective in reducing the demand for

casino gambling as a restriction on advertising.

The legislature could conclude, as it apparently

did here, that residents of Puerto Rico are al-

ready aware of the risks of casino gambling,

yet would nevertheless be induced by widespread

advertising to engage in such potentially harm-

ful conduct.

Posadas, 478 U.S. at 344. See also Fox, 492 U.S. at

479 (“it was ‘up to the legislature to decide’ that

point, so long as its judgment was reasonable’’)

(quoting Posadas, 478 U.S. at 344).

The Rhode Island legislature could reasonably have

made the judgment that more direct methods of re-

ducing the consumption of alcohol, such as fixing a

minimum price or adding a tax, would not be as

effective in achieving their goals. This conclusion is

patently reasonable, especially given the fact that

Rhode island is a small state whose residents can

readily cross the state line to avoid any such meas-

ures. Nor was Rhode Island required to exhaust

other methods of combatting alcohol abuse, such as

stepped-up attempts at educating consumers about

the risks of alcohol. Instead, it was justified in

choosing to restrict advertising, which is a well estab-

lished method of combatting the consumption of

socially harmful products. Rhode Island narrowly

tailored its restriction to focus on the one aspect of

advertising—the advertising of price advantages—

which it found to be most directly linked to greater

consumption. Central Hudson’s fourth prong does

not require more.

- EE oe eee

19

Il. AN ADVERTISING RESTRICTION IS A CONSTI-

TUTIOMNALLY PERMISSIBLE MEANS OF REGU-

LATING A SOCIALLY HARMFUL PRODUCT OR

ACTIVITY OVER WHICH THE STATE HAS EX-

TRAORDINARY CONTROL AND WHICH IT COULD

BAN COMPLETELY

A. Alcohol Is a Unique Product Over Which States

Historically Have Had Extraordinary Control

Like gambling in Posadas, the sale of alcohol is

a highly regulated activity which a State could

ban entirely. The devastating effects of alcohol

abuse are well known. Data for the year 1992 indi-

cates that nearly half (45.1%) of all motor vehicle

fatalities involved alcohol. See U.S. Department of

Justice, Bureau of Justice Statistics, Sourcebook of

Criminal Justice Statistics—1993 349 (Table 3.104)

(1994). Alcohol is also a factor in a large percent-

age of other accidental deaths, including falls, drown-

ings, and burn-related fatalities, as well as a large

proportion of homicides and suicides. See U.S. De-

partment of Health and Human Services, Eighth

Special Report to the U.S. Congress on Alcohol and

Health 234, 237, 248, 246 (1993). In 1992, over 3

million arrests were made for alcohol-related offenses,

Sourcebook of Criminal Justice Statistics - 1993 at

456 (Table 4.32), and data for the year 1990 esti-

mates the total cost of alcohol abuse and dependency

at $98.6 billion. Dorothy P. Rice, The Economic Cost

of Alcohol Abuse and Alcohol Dependence: 1990, 17

Alcohol Health & Research World 10 (1993).

Without question, States enjoy extraordinary regu-

latory power over commerce in alcohol. See, e.g.,

North Dakota v. United States, 495 U.S. 423, 433

(1990) (plurality opinion) (“Given the special pro-

tection afforded to state liquor control policies by the

20

Twenty-first Amendment, they are supported by a

strong presumption of validity and should not be set

aside lightly.”); id. at 431 (“within the area of its

jurisdiction, the State has ‘virtually complete con-

trol’ over the importation and sale of liquor and the

structure of the liquor distribution system”) (citing

Central California Retail Liquor Dealers Ass’n v.

Midcal Aluminum, Inc., 445 U.S. 97, 110 (1980) );

see also 324 Liquor Corp. v. Duffy, 479 U.S. 335,

356 (1987) (O’Connor, J., dissenting) (“The history

of the Amendment strongly supports Justice Black’s

view that the Twenty-first Amendment was intended

to return absolute control of the liquor trade to the

States.’’).

While the Twenty-first Amendment is the most

conspicuous manifestation of the States’ broad powers

over alcohol, “[t]he police power of the States over

intoxicating liquors was extremely broad even prior

to the Twenty-first Amendment.” Wisconsin v.

Constantineau, 400 U.S. 483, 486 (1971); see also

Rice v. Rehner, 463 U.S. 718, 724 (1983) (“The

State has an unquestionable interest in the liquor

traffic that occurs within its borders, and that inter-

est is independent of the authority conferred on the

States by the Twenty-first Amendment.”). For ex-

ample, in Crane v. Campbell, 245 U.S. 304 (1917),

the Court explained that

It must now be regarded as settled that, on

account of their well-known noxious qualities

and the extraordinary evils shown by experience

commonly to be consequent upon their use, a

State has power absolutely to prohibit manu-

facture, gift, purchase, sale, or transportation

of intoxicating liquors within its borders without

violating the guarantees of the Fourteenth

Amendment.

21

As the State has the power above indicated to

prohibit, it may adopt such measures as are

reasonably appropriate or needful to render

exercise of that power effective.

Id. at 307 (citations omitted); see also Clark Distil-

ling Co. v. Western Maryland Ry. Co., 242 U.S. 311,

320 (1917) (“That government can, consistently

with the due process clause, forbid the manufacture

and sale of liquor and regulate its traffic, is not open

to controversy; and that there goes along with this

power full police authority to make it effective, is also

not open.’’).* .

* Because the State could ban alcohol entirely, petitioners’

contention that Rhode Island’s price advertising regulation

violates the First Amendment under the doctrine articulated

in Bigelow v. Virginia, 421 U.S. 809 (1975), see Pet. Br.

24-26, is without merit. Petitioners argue that Bigelow pro-

hibits a State from regulating any commercial speech occur-

ring within its borders which emanates from an out-of-state

advertiser and relates to products or services legal in other

States.

In Posadas, however, the Court indicated that the Bigelow

doctrine was applicable only to speech concerning goods and

services to which a constitutional right attaches—certainly

not to “vices” which a State has the power to ban altogether.

See 478 U.S. at 345-46. Any lingering doubts as to the ap-

plicability of Bigelow to commercial speech regarding “vices”

legally taking place in other States was categorically laid to

rest in Edge. There, the Court upheld a ban on broadcast

advertising of lotteries within the borders of a non-lottery

State, even though the advertising related to legal lotteries

held in an adjoining State. See Edge, 113 S.Ct. at 2700-08.

Although the majority did not expressly address the Bigelow

doctrine, it upheld the advertising ban over the dissent’s ob-

jection that Bigelow forbids “suppressing truthful, nonmis-

leading information regarding a legal activity in another

State.” Edge, 113 S.Ct. at 2709 (Stevens, J., dissenting).

The Edge Court emphasized that, “[a]s in Posadas, the ac-

22

It is, of course, beyond dispute that this broad

power to prohibit alcohol includes equally broad

powers to regulate short of prohibition. The Court

elaborated on this point in Ziffrin, Inc. v. Reeves:

Without doubt a state may absolutely prohibit

the manufacture of intoxicants, their transpor-

tation, sale, or possession, irrespective of when

or where produced or obtained, or the use to

which they are to be put. Further, she may

adopt measures reasonably appropriate to effec-

tuate these inhibitions and exercise full police

authority in respect of them.... The state may

protect her people against evil incident to in-

toxicants and may exercise large discretion as

to means employed.

308 U.S. 132, 138-39 (1939) (citations omitted).

Throughout history, governments have sought to

use such regulatory power over alcohol to combat its

tragic effects:

For centuries peoples of many countries have

sought to prevent or eliminate the hazards that

are privy to the unregulated manufacture, sale

and distribution of alcoholic beverages. The

pages of history contain considerable evidence

that the public interest requires governmental

regulation of the alcohol beverage business... .

The Joint Committee of the States to Study Alcoholic

Beverage Laws, Alcoholic Beverage Control 4 (1960).°

tivity underlying the relevant advertising—gambling—impli-

cates no constitutionally protected right; rather, it falls into

a category of ‘vice’ activity that could be, and frequently has

been, banned altogether.” Jd. at 2703 (citation omitted).

5 See also Note, Economic Localism in State Alcoholic

Beverage Laws—Experience Under the Twenty-First Amend-

ment, 72 Harv. L. Rev. 1145, 1148 (1959) (“Controls imposed

23

Specifically, there is a longstanding history of state

regulation of alcohol advertising: “[A]lthough fed-

eral law establishes minimum labeling and advertis-

ing requirements, many states have additional re-

quirements which are applicable to all liquor sold

or advertised in the state.” Economic Localism, 72

Harv. L. Rev. at 1149 (footnotes omitted).

B. The Court Has Consistently Upheld Advertising

Regulations Where Harmful Products Or Activities

Are Involved

In Posadas, the Court reaffirmed that a legislature

may choose to combat consumption which it deems

socially harmful through indirect measures such as

restrictions on advertising of the harmful product or

service:

Appellant also makes the related argument

that, having chosen to legalize casino gambling

for residents of Puerto Rico, the legislature is

prohibited by the First Amendment from using

restrictions on advertising to accomplish its goal

of reducing demand for such gambling. We dis-

agree. In our view, appellant has the argument

backwards. . . . [I]t is precisely because the

government could have enacted a wholesale pro-

hibition of the underlying conduct that it is per-

missible for the government to take the less

intrusive step of allowing the conduct, but reduc-

ing the demand through restrictions on adver-

tising.

by every state upon various phases of the alcoholic-beverage

industry, from manufacture to distribution and ultimate con-

sumption, make it one of the most highly regulated of all

business activities.”); Joint Committee, Alcohol Beverage

Control at 4 (“‘[T] he alcoholic beverage business is sui generis,

and . . . it must be considered and treated differently than

every other business.”).

24

478 U.S. at 346; see Edge, 113 S.Ct. at 2703-05.

Indeed, a contrary rule would be difficult to under-

stand:

It would .... surely be a strange constitutional

doctrine which would concede to the legislature

the authority to totally ban a product or activity,

but deny to the legislature the authority to for-

bid the stimulation of demand for the product

or activity through advertising on behalf of

those who would profit from such increased

demand. Legislative regulation of products or

activities deemed harmful, such as cigarettes,

alcoholic beverages, and prostitution, has varied

from outright prohibition on the one hand, to

legalization of the product or activity with re-

strictions on stimulation of its demand on the

other hand. To rule out the latter, intermedi-

ate kind of response would require more than we

find in the First Amendment.

Posadas, 478 U.S. at 346-47 (citations and footnote

omitted ).°

As the Court noted in Posadas, there are many

examples of restrictions on advertising at both the

federal and state level to reduce demand for socially

harmful products. See Posadas, 478 U.S. at 347 &

n.10 (citing a number of such advertising restric-

* Cf. New York State Liquor Auth. v. Bellanca, 452 U.S. 714,

717 (1981) (per curiam) (“The State’s power to ban the

sale of alcoholic beverages entirely includes the lesser power

to ban the sale of liquor on premises where topless dancing

occurs.”); Seaboard Air Line Ry. v. State of North Carolina,

245 U.S. 298, 304 (1917) (“The challenged act instead of

interposing an absolute bar against all such shipments [of

alcohol], as it was within the power of the State to do, in

effect permitted them upon conditions .... The greater

power includes the less.’’).

25

tions, including 15 U.S.C. § 1335, which bans ciga-

rette advertising “on any medium of electronic com-

munication subject to the jurisdiction of the Federal

Communications Commission,” and Ohio Rev. Code

Ann. §§ 4301.03(E), 4301.211 (1982), which pro-

hibit off-premises advertising of beer prices) ; see also

Edge, 113 S.Ct. at 2700-01 (discussing history of

federal regulation of lottery advertising). See also

27 U.S.C. § 215 (requiring alcohol warning labels).

Likewise, in Central Hudson the majority assumed

that an advertising restriction could be a permissible

means to decrease demand for a commodity (energy),

where overconsumption of that commodity during an

energy crisis was socially harmful. See 447 U.S. at

573-74 (Blackmun, J., concurring).

Nor is the legitimacy of such measures called into

question by resort to the inapt and highly pejor-

ative label “paternalism.” There is nothing pa-

ternalistic about a State’s efforts to prevent citizens

from engaging in conduct, such as alcohol abuse,

which directly harms others. See p. 19, supra. The

exercise of the police powers is always suffused with

the notion that when decisions of individuals harm

society, society can use means at its disposal to alter

those decisions—including, in appropriate cases, re-

strictions on commercial speech. When private deci-

sions influenced by such commercial speech are affirm-

atively harmful to others, it is inappropriate to insist

that government sit back and wait for “the market-

place of ideas” to sort things out. As then-Justice

Rehnquist explained in dissent in Central Hudson,

“{t]here is no reason for believing that the market-

place of ideas is free from market imperfections any

more than there is to believe that the invisible hand

will always lead to optimum economic decisions in

26

the commercial market.” 447 U.S. at 592 (Rehn-

quist, J., dissenting).

In any event, the charge of “paternalism” is not

itself a legitimate basis for invalidating legislation.

This point was emphasized by the Court in Walters v.

National Ass’n of Radiation Survivors, 473 U.S. 305

(1985) :

It is not for the District Court or any other

federal court to invalidate a federal statute by

so cavalierly dismissing a long-asserted congres-

sional purpose. If “paternalism” is an insignifi-

cant Government interest, then Congress first

went astray in 1792, when by its Act of March

23 of that year it prohibited the “sale, transfer

or mortgage ... of the pension .. . [of a] sol-

dier . . . before the same shall become due.”

Acts of Congress long on the books, such as the

Fair Labor Standards Act, might similarly be

described as “paternalistic”; indeed, this Court

once opined that “[s]tatutes of the nature of

that under review, limiting the hours in which

grown and intelligent men may labor to earn

their living, are mere meddlesome interferences

with the rights of the individual. . . .” Lochner

v. New York, 198 U.S. 45 (1905). That day is

fortunately long gone, and with it the condemna-

tion of rational paternalism as a legitimate leg-

islative goal.

Id. at 323 (citations omitted).

27

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

RICHARD RUDA *

Chief Counsel

LEE FENNELL

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

August 21, 1995 Amici Curiae