Prohibiting Television Advertising of Alcoholic Beverages: A Constitutional Analysis

Order Code RL31239

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Prohibiting Television Advertising

of Alcoholic Beverages:

A Constitutional Analysis

Updated March 21, 2002

name redacted

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Prohibiting Television Advertising of Alcoholic

Beverages: A Constitutional Analysis

Summary

Federal law does not prohibit radio or television advertising of alcoholic

beverages. However, starting in 1936 for radio and 1948 for television, the industry

voluntarily refrained from advertising hard liquor on radio or television. In December,

2001, NBC announced that it would air liquor advertisements, but in March 2002, it

reversed its policy.

The U.S. Court of Appeals for the District of Columbia has struck down a law

that banned “indecent” speech on broadcast radio and television 24 hours a day, but

has upheld the current law, which imposes the ban from 6 a.m. to 10 p.m. This

suggests that a comparable ban on liquor ads would be constitutional. A 24-hour ban

might too, however, because advertising is entitled to less protection under the First

Amendment than “indecent” speech. Yet the Supreme Court’s trend in recent years

of striking down governmental restrictions on commercial speech suggests that the

constitutionality of a 24-hour ban would hardly be certain.

Contents

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

First Amendment Protection of Commercial Speech . . . . . . . . . . . . . . . . . . . . . . 2

Applying the Central Hudson Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Prohibiting Television Advertising of

Alcoholic Beverages: A Constitutional

Analysis

Background

Although federal law prohibits radio and television advertising of cigarettes and

little cigars (15 U.S.C. § 1335) and smokeless tobacco (15 U.S.C. § 4402), it does

not prohibit radio and television advertising of alcoholic beverages.1 However,

starting in 1936 for radio and 1948 for television, the industry voluntarily refrained

from advertising hard liquor on radio or television. Then, in June 1996, Seagram

started to advertise its Crown Royal Canadian Whisky on an NBC station in Corpus

Christi, Texas, and, on November 7, 1996, the Distilled Spirits Council of the United

States said that it would lift the ban, but that it had “drawn up 26 guidelines for the

industry to follow – guidelines that will avoid a younger audience but also allow this

industry to compete more effectively . . . .”2 Nevertheless, the four major television

networks announced at the time that they would not air liquor advertisements. Then,

in December, 2001, NBC announced that it would accept liquor ads, but imposed 19

rules to govern them, including limiting them to after 9 p.m E.S.T., requiring that

actors in them be at least 30 years old, and requiring liquor advertisers also run socialresponsibility messages on subjects like designated drivers and drinking moderately.3

In March 2002, NBC announced that it would no longer accept liquor ads.4

1

In Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971), aff’d without

opinion, 405 U.S. 1000 (1972), the Supreme Court upheld the constitutionality of the statute

prohibiting radio and television advertising of cigarettes and little cigars. This case, however,

seems of little precedential value today. It was decided at a time when the Court deemed

commercial speech to have no constitutional protection (see, Valentine v. Chrestensen, 316

U.S. 52 (1942)). In addition, the ban on tobacco advertising applies to “any medium of

electronic communication subject to the jurisdiction of the Federal Communications

Commission,” which, when the Supreme Court upheld the statute in 1972, before the

prevalence of commercial cable television, meant essentially broadcast radio and television.

And, in 1972, under the “spectrum scarcity” rationale of Red Lion Broadcasting Co. v.

Federal Communications Commission, 395 U.S. 367 (1969), broadcast radio and television

had limited First Amendment protection. The force of Red Lion today seems questionable;

cf., Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S.

622, 638 (1994), and Red Lion, in any event, would have no force with regard to an

advertising restriction applicable to cable television.

2

Washington Post, Nov. 8, 1996, p. A1.

3

See, New York Times, Dec. 14, 2001, p. C1.

4

See, New York Times, Mar. 21, 2002, p. C1.

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First Amendment Protection of Commercial Speech

The First Amendment to the U.S. Constitution provides that “Congress shall

make no law . . . abridging the freedom of speech, or of the press. . . .” Despite its

absolute language, the First Amendment provides only limited protection to

commercial speech, which includes advertisements.5

Commercial speech may be banned if it advertises an illegal product or service,

and, unlike fully protected speech, may be banned if it is unfair or deceptive. Even

when it advertises a legal product and is not unfair or deceptive, the government may

regulate commercial speech more than it may regulate fully protected speech.

Fully protected speech may be restricted only “to promote a compelling interest”

and only by “the least restrictive means to further the articulated interest.”6 For

commercial speech, by contrast, the Supreme Court has prescribed the four-prong

Central Hudson test to determine its constitutionality. This test asks initially (1)

whether the commercial speech at issue is protected by the First Amendment (that is,

whether it concerns a lawful activity and is not misleading) and (2) whether the

asserted governmental interest in restricting it is substantial. “If both inquiries yield

positive answers,” then to be constitutional the restriction must (3) “directly advance[

] the governmental interest asserted,” and (4) be “not more extensive than is necessary

to serve that interest.”7 The Supreme Court, however, subsequent to Central

Hudson, held that the fourth prong should not to be interpreted “strictly” to require

the legislature to use the “least restrictive means” available to accomplish its purpose.

Rather, the Court held, legislation regulating commercial speech satisfies the fourth

prong if there is a reasonable “fit” between the legislature's ends and the means chosen

to accomplish those ends.8

5

Commercial speech, for purposes of First Amendment analysis, is “speech that proposes a

commercial transaction.” Board of Trustees of the State University of New York v. Fox, 492

U.S. 469, 482 (1989) (emphasis in original). That books and films are sold for profit does

not make them commercial speech; i.e., it does not “prevent them from being a form of

expression whose liberty is safeguarded [to the maximum extent] by the First Amendment.”

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502 (1952).

6

Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S.

115, 126 (1989).

7

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S.

557, 566 (1980).

8

Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480 (1989).

The Court does “not equate this test with the less rigorous obstacles of rational basis review.”

Florida Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995). In other words, although a

restriction on commercial speech need not constitute the least restrictive means to satisfy the

fourth prong, it must be more than merely rational.

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Applying the Central Hudson Test

The first prong of the Central Hudson test asks whether the restricted speech

concerns a lawful activity and is not misleading. The sale of alcoholic beverages is

generally lawful, and we assume that a ban on radio and television advertising of

alcoholic beverages would apply to non-misleading advertisements.

The second prong of the Central Hudson test asks whether the asserted

governmental interest in restricting the commercial speech in question is substantial.

The Supreme Court, in Posadas de Puerto Rico Associates v. Tourism Company of

Puerto Rico, held that a government’s “interest in the health, safety, and welfare of

its citizens constitutes a ‘substantial’ governmental interest.”9 There thus seems no

doubt that a ban on alcoholic beverage advertising would satisfy the second prong.

It is on the next two prongs that the case likely will turn, as these prongs address

whether the government’s restriction on commercial speech is a reasonable way to

further that interest.

In Rubin v. Coors Brewing Co., the Court struck down a federal statute, 27

U.S.C. § 205(e), that prohibited beer labels from displaying alcohol content unless

state law requires such disclosure.10 The Court found sufficiently substantial to satisfy

the second prong of the Central Hudson test the government’s interest in curbing

“strength wars” by beer brewers who might seek to compete for customers on the

basis of alcohol content. With respect to the third prong, however, it concluded that

the ban “cannot directly and materially advance” this “interest because of the overall

irrationality of the Government’s regulatory scheme.”11 This irrationality was

evidenced by the fact that the ban did not apply to beer advertisements, and by the

fact that the statute required the disclosure of alcohol content on the labels of wines

and spirits.

In 44 Liquormart, Inc. v. Rhode Island, the Court struck down a statute that

prohibited advertising the price of alcoholic beverages, finding that Rhode Island had

not met its burden of showing that the “ban will significantly advance the State’s

interest in promoting temperance.”12

Cases like Rubin and 44 Liquormart indicate that, to satisfy the third prong of

the Central Hudson test, the government must present evidence to support its claim

that its restriction on commercial speech directly and materially advances a substantial

governmental interest. In Florida Bar v. Went For It, Inc., the Court upheld a rule

of the Florida Bar that prohibited personal injury lawyers from sending targeted

direct-mail solicitations to victims and their relatives for 30 days following an accident

9

478 U.S. 328, 341 (1986).

10

514 U.S. 476 (1995).

11

Id. at 488.

12

517 U.S., at 505.

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or disaster.13 The Bar argued “that it has a substantial interest in protecting the

privacy and tranquility of personal injury victims and their loved ones against

intrusive, unsolicited contact by lawyers,”14 and the Court found that “[t]he anecdotal

record mustered by the Bar” to demonstrate that its rule would advance this interest

in a direct and material way was "noteworthy for its breadth and detail”; it was not

“mere speculation and conjecture.”15

By contrast, in 44 Liquormart, the Court found that “any conclusion that

elimination of the ban [on alcoholic beverage price advertising] would significantly

increase alcohol consumption would require us to engage in the sort of ‘speculation

or conjecture’ that is an unacceptable means of demonstrating that a restriction on

commercial speech directly advances the State’s asserted interest.”16

Thus, if a ban on radio and television advertising of alcoholic beverages were

enacted and challenged as unconstitutional, the government would have to

demonstrate that such a ban would directly and materially advance the governmental

interest in reducing alcohol consumption. Arguably, a ban on radio and television

advertising of alcoholic beverages would advance the governmental interest in

reducing alcohol consumption in a much more straightforward way than the laws

against disclosing alcohol content or alcohol prices that the Supreme Court held

unconstitutional, and consequently would likely be found to satisfy the third prong of

the Central Hudson test.17

We turn now to the fourth prong of the Central Hudson test – that restrictions

on commercial speech constitute a reasonable “fit” between the legislature’s ends and

the means chosen to accomplish those ends.

In 44 Liquormart, the Court found it “perfectly obvious that alternative forms

of regulation would be more likely to achieve the State’s goal of promoting

temperance. As the State’s own expert conceded, higher prices can be maintained

either by direct regulation or by increased taxation. . . . Even educational campaigns

. . . might prove to be more effective.”18 With respect to a ban on radio and television

advertising of alcoholic beverages, it does not seem “perfectly obvious that alternative

forms of regulation would be more likely to achieve the State’s goal of promoting

temperance.”

Another goal of a ban on radio and television advertising, however, might be to

protect children in particular from such advertising, and a court might find that a total

13

515 U.S. 618 (1995).

14

Id. at 624.

15

Id. at 627.

16

517 U.S., at 507.

17

The Supreme Court has “acknowledged the theory that product advertising stimulates

demand for products, while suppressing advertising may have the opposite effect.” Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525, 560-561 (2001).

18

Id.

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ban on radio and television advertising is not necessary to accomplish this goal. A

federal court of appeals declared unconstitutional a statute that prohibited “indecent”

material on broadcast radio and television, but subsequently upheld such a statute that

banned it only from 6 a.m. to 10 p.m., which Congress had deemed to be the hours

when most children are in the audience.19 “Indecent” material, however, is fully

protected by the First Amendment and therefore may be restricted only by the least

restrictive means available to further a compelling governmental interest.20 A

restriction of commercial speech, by contrast, need merely represent a reasonable fit

between means and ends. Under this standard, it seems more likely that a court

would uphold a total ban on radio and television advertising.

Nevertheless, a 1996 court of appeals case, Anheuser-Busch, Inc. v. Schmoke,

might support an argument that a total ban on radio and television advertising would

be unconstitutional.21 The Fourth Circuit, in 1995, had upheld a city ordinance that

prohibited, except in certain commercially and industrially zoned areas of the city,

billboards and other outdoor advertising of alcoholic beverages. The Supreme Court

vacated and remanded to the Fourth Circuit “for further consideration in light of 44

Liquormart . . . .” The Fourth Circuit, after further consideration in light of 44

Liquormart, re-adopted its previous decision.

In 44 Liquormart, the Supreme Court had increased the protection that the

Central Hudson test guarantees to commercial speech by making clear that “when a

State entirely prohibits the dissemination of truthful, nonmisleading commercial

messages for reasons unrelated to the preservation of a fair bargaining process,” the

courts should apply stricter review than when a regulation is designed “to protect

consumers from misleading, deceptive, or aggressive sales practices.”22 The Court

found that “[t]he First Amendment directs us to be especially skeptical of regulations

that seek to keep people in the dark for what the government perceives to be their

own good.”23 In its reconsideration of Anheuser-Busch, Inc. v. Schmoke, the Fourth

Circuit wrote that, in its previous decision,

19

Action for Children’s Television v. Federal Communications Commission, 932 F.2d 1504

(D.C. Cir. 1991), cert. denied, 503 U.S. 913 (1992); Action for Children’s Television v.

Federal Communications Commission, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied,

516 U.S. 1043 (1996).

20

It is fully protected unless it constitutes obscenity under Miller v. California, 413 U.S. 15

(1973), or child pornography under New York v. Ferber, 458 U.S. 747 (1982). Those two

forms of speech receive no protection.

21

63 F.3d 1305 (4th Cir. 1995), vacated and remanded, 517 U.S. 1206 (1996), affirmed on

reconsideration, 101 F.3d 325 (4th Cir. 1996), cert. denied, 520 U.S. 1204 (1997).

Baltimore has a similar ordinance with respect to cigarette advertising, which the Fourth

Circuit also upheld, the Supreme Court remanded, and the Fourth Circuit re-adopted. Penn

Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, 63 F.3d 1318 (4th

Cir. 1995), vacated and remanded, 518 U.S. 1030 (1996), affirmed on reconsideration, 101

F.3d 332 (4th Cir. 1996), cert. denied, 520 U.S. 1204 (1997).

22

517 U.S., at 501.

23

Id. at 503.

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we recognized the reasonableness of Baltimore City’s legislative finding

that there is a “definite correlation between alcoholic beverage advertising

and underage drinking.” . . . While we acknowledged that the geographical

limitation on outdoor advertising may also reduce the opportunities of

adults to receive the information, we recognize that there were numerous

other means of advertising to adults . . . .

In 44 Liquormart, by contrast, the State prohibited all advertising

throughout Rhode Island, “in any manner whatsoever,” of the price of

alcoholic beverages except for price tags or signs displayed with the

beverages and not visible from the street. . . . While Rhode Island’s blanket

ban on price advertising failed Central Hudson scrutiny, Baltimore’s

attempt to zone outdoor alcoholic beverage advertising into appropriate

areas survived our “close look” at the legislature’s means of accomplishing

its objective . . . . Baltimore’s ordinance expressly targets persons who

cannot be legal users of alcoholic beverages, not legal users as in Rhode

Island. More significantly, Baltimore does not ban outdoor advertising of

alcoholic beverages outright but merely restricts the time, place, and

manner of such advertisements. And Baltimore’s ordinance does not

foreclose the plethora of newspaper, magazine, radio, television, direct

mail, Internet, and other media available to Anheuser-Busch and its

competitors.

This quotation might support the constitutionality of a ban on radio and

television advertising of alcoholic beverages, as the government could argue that such

advertising is especially accessible to children, and that such a ban does not foreclose

advertisements for alcoholic beverages in “the plethora of . . . other media.” At the

same time, however, the Fourth Circuit’s finding significant the fact that “Baltimore

does not ban outdoor advertising of alcoholic beverages outright but merely restricts

the time, place, and manner of such advertisements” might support an argument that

a 24-hour-a-day ban on radio and television advertising of alcoholic beverages would

go beyond a reasonable fit between the government’s ends and means. A ban of

fewer than 24 hours, one might argue, might be sufficient to protect children.

Nevertheless, because the government in regulating commercial speech, unlike in

regulating “indecent” material, is not required to use the least restrictive means

available to further its ends, the courts might uphold a total ban on radio and

television advertising of alcoholic beverages.

The Fourth Circuit focused on the fact that the Baltimore regulation was aimed

at protecting children. Though the Supreme Court in 44 Liquormart said that it

would be “skeptical of regulations that seek to keep people in the dark for what the

government perceives to be their own good,” its disapproval of governmental

paternalism would likely diminish where such paternalism is directed at children.

Furthermore, the Court in 44 Liquormart objected to a state’s “entirely” prohibiting

“the dissemination of truthful, nonmisleading commercial messages for reasons

unrelated to the preservation of a fair bargaining process,” and the Baltimore

prohibition was not total.

Subsequent to the Fourth Circuit’s decision, the Supreme Court, in Lorillard

Tobacco Co. v. Reilly, struck down, under the fourth prong of the Central Hudson

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test, a Massachusetts regulation that prohibited the outdoor advertising of cigarettes,

smokeless tobacco, and cigars within 1,000 feet of schools or playgrounds.24 The

Court found that the regulation “prohibit[ed] advertising in a substantial portion of

the major metropolitan areas of Massachusetts,”25 and that such a burden on speech

did not constitute a reasonable fit between the means and ends of the regulatory

scheme. “Similarly, a ban on all signs of any size seems ill suited to target the

problem of highly visible billboards, as opposed to smaller signs.”26

The Lorillard decision need not be read to imply that the Court today would

disapprove of the Fourth Circuit’s decision, as the regulations at issue in the two cases

were different. It is unclear, for example, whether the Baltimore regulations’

inapplicability in certain commercially and industrially zoned areas of the city

prevented it from restricting speech, as the Massachusetts regulation did, in a

substantial portion of the metropolitan area. But Lorillard was a continuation of the

Court’s trend in recent years of striking down governmental restrictions of

commercial speech.27

Conclusion

Whether the Supreme Court would uphold a restriction on television advertising

of alcoholic beverages might depend upon whether the Court views it as an attempt

“to keep people in the dark for what the government perceives to be their own good,”

or as an attempt to protect children. It might be more likely to view a 24-hour ban

as the former, and a more limited ban as the latter.

Furthermore, in light of the D.C. Circuit’s having upheld the 6 a.m. - 10 p.m. ban

on “indecent” material on broadcast radio and television, and the fact that “indecent”

material receives greater First Amendment protection than commercial speech, it

seems likely that a comparable restriction on radio and television advertising of

alcoholic beverages would be found constitutional.

It is more difficult to predict, however, whether a 24-hour-a-day ban would be

upheld. Though the D.C. Circuit struck down such a ban for “indecent” material,

such material, again, receives greater First Amendment protection than commercial

speech. Yet the Supreme Court’s trend of striking down commercial speech

restrictions makes it hardly certain that it would uphold a 24-hour ban on television

advertising of alcoholic beverages

24

533 U.S. 525 (2001).

25

Id. at 562.

26

Id. at 564.

27

Since 1994, the Court has struck down commercial speech restrictions in Ibanez v. Florida

Board of Accountancy, 512 U.S. 136 (1994); Rubin v. Coors Brewing Co., 514 U.S. 476

(1995); Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995); 44 Liquormart, Inc. v. Rhode

Island, 517 U.S. 484 (1996); Greater New Orleans Broadcasting Association, Inc. v. United

States, 527 U.S. 173 (1999); and Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).

Since 1994, it has upheld restrictions only in Lorillard, and these concerned retail product

placement, not advertising.

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