Freedom of speech is not unlimited in the case of ‘‘commercial speech,’’ such as advertising. A 1942 Supreme Court decision upheld an ordinance that prohibited distribution of advertising leaflets on the street, saying that purely commercial advertising was not entitled to any First Amendment protection.
The Court later retreated from that position. Beginning in 1975, the Court said that an ordinance could regulate the manner of distribution but not its content. In a series of decisions the Court struck down prohibitions of specific types of advertising, where the commercial message also involved a matter of ‘‘public interest’’—advertisements for abortion clinics, prescription drug prices, lawyers, optometrists, contraceptives, and electrical appliances.
A Rhode Island statute prohibited the advertising of liquor prices. 44 Liquormart’s newspaper ad stated that ‘‘State law prohibits advertising liquor prices’’— but claimed that that 44 Liquormart had low prices for potato chips, peanuts, and sodas. 44 Liquormart filed for a declaratory judgment, challenging the statute’s validity.
The Court said that a statute that bans truthful, nonmisleading advertising must be subjected to strict scrutiny. The Court applied two of the four Central Hudson tests and overturned the statute. The Court said the prohibition did not directly advance the state’s interest in promoting temperance, seeing no evidence that liquor price advertising and alcohol consumption were related. The Court also said that the state could reduce the consumption of alcohol by means other than abridging speech.
Rhode Island also argued that since the state could ban the sale of alcohol, it could ban or regulate the advertising of alcoholic beverages. The state cited, as authority for this proposition, a 1986 Supreme Court decision upholding a Puerto Rico statute limiting advertising of Puerto Rico gambling casinos. 44 Liquormart overturned that decision.
ELI C. BORTMAN
Cases and Statutes Cited
See also Commercial Speech; Lawyer Advertising; Professional Advertising