In The

Supreme Court of the United States




Decided May 13, 1996

Justice O’Connor, Concurring

Topic: First Amendment*Court vote: 9–0
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Joining O'Connor opinion: Justice BREYER Justice BREYER Chief Justice REHNQUIST Chief Justice REHNQUIST Justice SOUTER Justice SOUTER
Citation: 517 U.S. 484 Docket: 94–1140Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE SOUTER, and JUSTICE BREYER join, concurring in the judgment.

Rhode Island prohibits advertisement of the retail price of alcoholic beverages, except at the place of sale. The State's only asserted justification for this ban is that it promotes temperance by increasing the cost of alcoholic beverages. Brief for Respondent State of Rhode Island 22. I agree with the Court that Rhode Island's price-advertising ban is invalid. I would resolve this case more narrowly, however, by applying our established Central Hudson test to determine whether this commercial speech regulation survives First Amendment scrutiny.

Under that test, we first determine whether the speech at issue concerns lawful activity and is not misleading, and whether the asserted governmental interest is substantial. If both these conditions are met, we must decide whether the regulation "directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." Central Hudson Gas & Elec. Corp. v. Public Servo Comm'n of N. Y., 447 U. S. 557, 566 (1980).

Given the means by which this regulation purportedly serves the State's interest, our conclusion is plain: Rhode Island's regulation fails First Amendment scrutiny.

Both parties agree that the first two prongs of the Central Hudson test are met. Even if we assume, arguendo, that Rhode Island's regulation also satisfies the requirement that it directly advance the governmental interest, Rhode Island's regulation fails the final prong; that is, its ban is more extensive than necessary to serve the State's interest.

As we have explained, in order for a speech restriction to pass muster under the final prong, there must be a fit between the legislature's goal and method, "a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served." Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989) (internal quotation marks omitted). While the State need not employ the least restrictive means to accomplish its goal, the fit between means and ends must be "narrowly tailored." Ibid. The scope of the restriction on speech must be reasonably, though it need not be perfectly, targeted to address the harm intended to be regulated. See Florida Bar v. Went For It, Inc., 515 U. S. 618, 632-634 (1995). The State's regulation must indicate a "carefu[l] calculat[ion of] the costs and benefits associated with the burden on speech imposed by its prohibition." Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 417 (1993) (internal quotation marks omitted). The availability of less burdensome alternatives to reach the stated goal signals that the fit between the legislature's ends and the means chosen to accomplish those ends may be too imprecise to withstand First Amendment scrutiny. See Rubin v. Coors Brewing Co., 514 U. S. 476, 486-487 (1995); Cincinnati, supra, at 417, n. 13. If alternative channels permit communication of the restricted speech, the regulation is more likely to be considered reasonable. See Florida Bar, supra, at 632-634.

Rhode Island offers one, and only one, justification for its ban on price advertising. Rhode Island says that the ban is intended to keep alcohol prices high as a way to keep consumption low. By preventing sellers from informing customers of prices, the regulation prevents competition from driving prices down and requires consumers to spend more time to find the best price for alcohol. Brief for Respondent State of Rhode Island 22. The higher cost of obtaining alcohol, Rhode Island argues, will lead to reduced consumption.

The fit between Rhode Island's method and this particular goal is not reasonable. If the target is simply higher prices generally to discourage consumption, the regulation imposes too great, and unnecessary, a prohibition on speech in order to achieve it. The State has other methods at its disposalmethods that would more directly accomplish this stated goal without intruding on sellers' ability to provide truthful, nonmisleading information to customers. Indeed, Rhode Island's own expert conceded that" 'the objective of lowering consumption of alcohol by banning price advertising could be accomplished by establishing minimum prices and/or by increasing sales taxes on alcoholic beverages.''' 39 F.3d 5, 7 (CA1 1994). A tax, for example, is not normally very difficult to administer and would have a far more certain and direct effect on prices, without any restriction on speech. The principal opinion suggests further alternatives, such as limiting per capita purchases or conducting an educational campaign about the dangers of alcohol consumption. Ante, at 507. The ready availability of such alternatives-at least some of which would far more effectively achieve Rhode Island's only professed goal, at comparatively small additional administrative cost-demonstrates that the fit between ends and means is not narrowly tailored. Too, this regulation prevents sellers of alcohol from communicating price information anywhere but at the point of purchase. No channels exist at all to permit them to publicize the price of their products.

Respondents point for support to Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328 (1986), where, applying the Central Hudson test, we upheld the constitutionality of a Puerto Rico law that prohibited the advertising of casino gambling aimed at residents of Puerto Rico, but permitted such advertising aimed at tourists.

The Court there accepted as reasonable the legislature's belief that the regulation would be effective, and concluded that, because the restriction affected only advertising of casino gambling aimed at residents of Puerto Rico, not that aimed at tourists, the restriction was narrowly tailored to serve Puerto Rico's interest. 478 U. S., at 341-344. The Court accepted without question Puerto Rico's account of the effectiveness and reasonableness of its speech restriction. Respondents ask us to make a similar presumption here to uphold the validity of Rhode Island's law.

It is true that Posadas accepted as reasonable, without further inquiry, Puerto Rico's assertions that the regulations furthered the government's interest and were no more extensive than necessary to serve that interest. Since Posadas, however, this Court has examined more searchingly the State's professed goal, and the speech restriction put into place to further it, before accepting a State's claim that the speech restriction satisfies First Amendment scrutiny. See, e. g., Florida Bar v. Went For It, Inc., supra; Rubin v. Coors Brewing Co., supra; Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U. S. 136 (1994); Edenfield v. Fane, 507 U. S. 761 (1993); Cincinnati v. Discovery Network, Inc., supra. In each of these cases we declined to accept at face value the proffered justification for the State's regulation, but examined carefully the relationship between the asserted goal and the speech restriction used to reach that goal. The closer look that we have required since Posadas comports better with the purpose of the analysis set out in Central Hudson, by requiring the State to show that the speech restriction directly advances its interest and is narrowly tailored. Under such a closer look, Rhode Island's price-advertising ban clearly fails to pass muster.

Because Rhode Island's regulation fails even the less stringent standard set out in Central Hudson, nothing here requires adoption of a new analysis for the evaluation of commercial speech regulation. The principal opinion acknowledges that "even under the less than strict standard that generally applies in commercial speech cases, the State has failed to establish a reasonable fit between its abridgment of speech and its temperance goal." Ante, at 507 (internal quotation marks omitted). Because we need go no further, I would not here undertake the question whether the test we have employed since Central Hudson should be displaced.

Respondents argue that an additional factor, the Twentyfirst Amendment, tips the First Amendment analysis in Rhode Island's favor.

The Twenty-first Amendment repealed the prohibition on the manufacture, sale, or transportation of intoxicating liquors that had been established by the Eighteenth Amendment. Section 2 of the Twenty-first Amendment created an exception to the normal operation of the Commerce Clause, to permit States to prohibit commerce in, or the use of, alcoholic beverages. Craig v. Boren, 429 U. S. 190, 206 (1976).

In its examination of Rhode Island's statute, the Court of Appeals erroneously concluded that the Twenty-first Amendment provided an "added presumption in favor of the validity of the state regulation." 39 F. 3d, at 7-9 (internal quotation marks omitted). The Twenty-first Amendment cannot save an otherwise invalid restriction on speech.

Nothing in the Amendment's text or history justifies its use to alter the application of the First Amendment. "[O]ur prior cases have made clear that the [Twenty-first] Amend ment does not license the States to ignore their obligations under other provisions of the Constitution." Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 712 (1984). See also Larkin v. Grendel's Den, Inc., 459 U. S. 116, 122, n. 5 (1982) ("The State may not exercise its power under the Twenty-first Amendment in a way which impinges upon the Establishment Clause of the First Amendment"); Craig, supra, at 206 ("Neither the text nor the history of the Twenty-first Amendment suggests that it qualifies individual rights protected by the Bill of Rights and the Fourteenth Amendment where the sale or use of liquor is concerned" (internal quotation marks omitted)). The Twenty-first Amendment does not trump First Amendment rights or add a presumption of validity to a regulation that cannot otherwise satisfy First Amendment requirements.

The Court of Appeals relied on California v. LaRue, 409 U. S. 109, 118-119 (1972), for its determination that the Twenty-first Amendment provided an "added presumption" of the regulation's validity. There, this Court upheld a State's regulations prohibiting establishments licensed to sell liquor by the drink from offering explicitly sexual entertainment. As we recently explained in Coors, "LaRue did not involve commercial speech about alcohol, but instead concerned the regulation of nude dancing in places where alcohol was served." 514 U. S., at 483, n. 2. The cases following LaRue similarly involved the regulation of nude or nearly nude dancing in establishments licensed to serve alcohol. New York State Liquor Authority v. Bellanca, 452 U. S. 714 (1981) (per curiam); Newport v. Iacobucci, 479 U. S. 92 (1986) (per curiam). Nothing in LaRue suggested that the Twenty-first Amendment would permit a State to prohibit the kind of speech at issue here, and as discussed above, the text and history of the Twenty-first Amendment clearly indicate that the Amendment was not intended to supplant the general application of constitutional provisions, except for its limited exception to the Commerce Clause's normal operation. Indeed, LaRue notes that prior decisions "did not go so far as to hold or say that the Twenty-first Amendment supersedes all other provisions of the United States Constitution in the area of liquor regulations," 409 U. S., at 115, and LaRue certainly does not stand for that proposition. The Court of Appeals' reliance on LaRue was misplaced.

Rhode Island's prohibition on alcohol-price advertising, as a means to keep alcohol prices high and consumption low, cannot survive First Amendment scrutiny. The Twentyfirst Amendment cannot save this otherwise invalid regulation. While I agree with the Court's finding that the regulation is invalid, I would decide that issue on narrower grounds. I therefore concur in the judgment.


10 See ante, at 514 (noting that scope of any "vice" category of products would be difficult to define).

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