UAGC Business Law Business and The First Amendment Discussion

In Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) Download Rubin v. Coors Brewing Co., 514 U.S. 476 (1995), the Supreme Court held that a federal statute and related regulations that prevented Coors from disclosing the alcohol content on its beer labels and in product advertising was a violation of Coors’ constitutional right to freedom of speech under the First Amendment. Based on this case answer the following questions:

Rubin v. Coors Brewing Co., 514 US 476 – Supreme Court 1995 – Google Scholar
Rubin v. Coors Brewing Co., 514 US 476 – Supreme Court 1995
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514 U.S. 476 (1995)
RUBIN, SECRETARY OF THE TREASURY
v.
COORS BREWING CO.
No. 93-1631.
United States Supreme Court.
Argued November 30, 1994.
Decided April 19, 1995.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
TENTH CIRCUIT
478
*478 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and
O’Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J.,
filed an opinion concurring in the judgment, post, p. 491.
Deputy Solicitor General Kneedler argued the cause for petitioner. With him on the
briefs were Solicitor General Days, Assistant Attorney General Hunger, Richard H.
Seamon, Michael Jay Singer, and John S. Koppel.
478
*478 Bruce J. Ennis, Jr., argued the cause for respondent. With him on the brief
were Donald B. Verrilli, Jr., Paul M. Smith, Nory Miller, M. Caroline Turner, and
Terrance D. Micek.[*]
Justice Thomas, delivered the opinion of the Court.
Section 5(e)(2) of the Federal Alcohol Administration Act prohibits beer labels from
displaying alcohol content. We granted certiorari in this case to review the Tenth
Circuit’s holding that the labeling ban violates the First Amendment because it fails
to advance a governmental interest in a direct and material way. Because § 5(e)(2)
is inconsistent with the protections granted to commercial speech by the First
Amendment, we affirm.
I
479
Respondent brews beer. In 1987, respondent applied to the Bureau of Alcohol,
Tobacco and Firearms (BATF), an agency of the Department of the Treasury, for
approval of proposed labels and advertisements that disclosed the alcohol content
of its beer. BATF rejected the application on the ground that the Federal Alcohol
Administration Act (FAAA or Act), 49 Stat. 977, 27 U. S. C. § 201 et seq. ,
prohibited disclosure of the alcohol content of beer on labels or in advertising.
Respondent then filed suit in the District *479 Court for the District of Colorado
seeking a declaratory judgment that the relevant provisions of the Act violated the
First Amendment; respondent also sought injunctive relief barring enforcement of
these provisions. The Government took the position that the ban was necessary to
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Rubin v. Coors Brewing Co., 514 US 476 – Supreme Court 1995 – Google Scholar
suppress the threat of “strength wars” among brewers, who, without the regulation,
would seek to compete in the marketplace based on the potency of their beer.
The District Court granted the relief sought, but a panel of the Court of Appeals for
the Tenth Circuit reversed and remanded. Adolph Coors Co. v. Brady, 944 F. 2d
1543 (1991). Applying the framework set out in Central Hudson Gas & Elec. Corp.
v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980), the Court of Appeals found
that the Government’s interest in suppressing alcoholic “strength wars” was
“substantial.” Brady, supra, at 1547-1549. It further held, however, that the record
provided insufficient evidence to determine whether the FAAA’s ban on disclosure
“directly advanced” that interest. Id. , at 1549-1551. The court remanded for further
proceedings to ascertain whether a “`reasonable fit’ ” existed between the ban and
the goal of avoiding strength wars. Id., at 1554.
480
After further factfinding, the District Court upheld the ban on the disclosure of
alcohol content in advertising but invalidated the ban as it applied to labels.
Although the Government asked the Tenth Circuit to review the invalidation of the
labeling ban, respondent did not appeal the court’s decision sustaining the
advertising ban. On the case’s second appeal, the Court of Appeals affirmed the
District Court. Adolph Coors Co. v. Bentsen, 2 F. 3d 355 (1993). Following our
recent decision in Edenfield v. Fane, 507 U. S. 761 (1993), the Tenth Circuit asked
whether the Government had shown that the “`challenged regulation advances
[the Government’s] interests in a direct and material way.’ ” 2 F. 3d, at 357 (quoting
Edenfield, supra, at 767-768). After reviewing the record, the Court of Appeals
concluded that the Government *480 had failed to demonstrate that the prohibition
in any way prevented strength wars. The court found that there was no evidence of
any relationship between the publication of factual information regarding alcohol
content and competition on the basis of such content. 2 F. 3d, at 358-359.
We granted certiorari, 512 U. S. 1203 (1994), to review the Tenth Circuit’s decision
that § 205(e)(2) violates the First Amendment. We conclude that the ban infringes
respondent’s freedom of speech, and we therefore affirm.
II
A
Soon after the ratification of the Twenty-first Amendment, which repealed the
Eighteenth Amendment and ended the Nation’s experiment with Prohibition,
Congress enacted the FAAA. The statute establishes national rules governing the
distribution, production, and importation of alcohol and established a Federal
Alcohol Administration to implement these rules. Section 5(e)(2) of the Act
prohibits any producer, importer, wholesaler, or bottler of alcoholic beverages from
selling, shipping, or delivering in interstate or foreign commerce any malt
beverages, distilled spirits, or wines in bottles
“unless such products are bottled, packaged, and labeled in conformity
with such regulations, to be prescribed by the Secretary of the
Treasury, with respect to packaging, marking, branding, and labeling
and size and fill of container . . . as will provide the consumer with
adequate information as to the identity and quality of the products, the
alcoholic content thereof (except that statements of, or statements
likely to be considered as statements of, alcoholic content of malt
beverages are prohibited unless required by State law and except that,
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Rubin v. Coors Brewing Co., 514 US 476 – Supreme Court 1995 – Google Scholar
in case of wines, statements of alcoholic content shall be required only
for wines containing more than 14 per centum of alcohol by volume),
the net contents of *481 the package, and the manufacturer or bottler
or importer of the product.” 27 U. S. C. § 205(e)(2) (emphasis added).
481
The Act defines “`malt beverage[s]’ ” in such a way as to include all beers and
ales. § 211(a)(7).
Implementing regulations promulgated by BATF (under delegation of authority
from the Secretary of the Treasury) prohibit the disclosure of alcohol content on
beer labels. 27 CFR § 7.26(a) (1994).[1] In addition to prohibiting numerical
indications of alcohol content, the labeling regulations proscribe descriptive terms
that suggest high content, such as “strong,” “full strength,” “extra strength,” “high
test,” “high proof,” “pre-war strength,” and “full old time alcoholic strength.” §
7.29(f). The prohibitions do not preclude labels from identifying a beer as “low
alcohol,” “reduced alcohol,” “non-alcoholic,” or “alcohol-free.” Ibid.; see also §§
7.26(b)—(d). By statute and by regulation, the labeling ban must give way if state
law requires disclosure of alcohol content.
B
482
Both parties agree that the information on beer labels constitutes commercial
speech. Though we once took the position that the First Amendment does not
protect commercial speech, see Valentine v. Chrestensen, 316 U. S. 52 (1942),
we repudiated that position in Virginia Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U. S. 748 (1976). There we noted that the free flow of
commercial information is “indispensable to the proper allocation of resources in a
free enterprise system” because it informs the numerous private decisions that
drive the system. Id. , at 765. Indeed, we observed that a “particular consumer’s
interest in the *482 free flow of commercial information . . . may be as keen, if not
keener by far, than his interest in the day’s most urgent political debate.” Id. , at
763.
Still, Virginia Board of Pharmacy suggested that certain types of restrictions might
be tolerated in the commercial speech area because of the nature of such speech.
See id. , at 771-772, n. 24. In later decisions we gradually articulated a test based
on “`the “commonsense” distinction between speech proposing a commercial
transaction, which occurs in an area traditionally subject to government regulation,
and other varieties of speech.’ ” Central Hudson, 447 U. S., at 562 (quoting Ohralik
v. Ohio State Bar Assn., 436 U. S. 447, 455-456 (1978)). Central Hudson identified
several factors that courts should consider in determining whether a regulation of
commercial speech survives First Amendment scrutiny:
“For commercial speech to come within [the First Amendment], it at
least must concern lawful activity and not be misleading. Next, we ask
whether the asserted governmental interest is substantial. If both
inquiries yield positive answers, we must determine whether the
regulation directly advances the governmental interest asserted, and
whether it is not more extensive than is necessary to serve that
interest.” 447 U. S., at 566.
We now apply Central Hudson `s test to § 205(e)(2).[2]
483
*483
III
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Rubin v. Coors Brewing Co., 514 US 476 – Supreme Court 1995 – Google Scholar
Both the lower courts and the parties agree that respondent seeks to disclose only
truthful, verifiable, and nonmisleading factual information about alcohol content on
its beer labels. Thus, our analysis focuses on the substantiality of the interest
behind § 205(e)(2) and on whether the labeling ban bears an acceptable fit with
the Government’s goal. A careful consideration of these factors indicates that §
205(e)(2) violates the First Amendment’s protection of commercial speech.
A
484
The Government identifies two interests it considers sufficiently “substantial” to
justify § 205(e)(2)’s labeling ban. First, the Government contends that § 205(e)(2)
advances Congress’ goal of curbing “strength wars” by beer brewers who might
seek to compete for customers on the basis of alcohol content. According to the
Government, the FAAA’s restriction prevents a particular type of beer drinker—one
*484 who selects a beverage because of its high potency—from choosing beers
solely for their alcohol content. In the Government’s view, restricting disclosure of
information regarding a particular product characteristic will decrease the extent to
which consumers will select the product on the basis of that characteristic.
Respondent counters that Congress actually intended the FAAA to achieve the far
different purpose of preventing brewers from making inaccurate claims concerning
alcohol content. According to respondent, when Congress passed the FAAA in
1935, brewers did not have the technology to produce beer with alcohol levels
within predictable tolerances—a skill that modern beer producers now possess.
Further, respondent argues that the true policy guiding federal alcohol regulation is
not aimed at suppressing strength wars. If such were the goal, the Government
would not pursue the opposite policy with respect to wines and distilled spirits.
Although § 205(e)(2) requires BATF to promulgate regulations barring the
disclosure of alcohol content on beer labels, it also orders BATF to require the
disclosure of alcohol content on the labels of wines and spirits. See 27 CFR § 4.36
(1994) (wines); § 5.37 (distilled spirits).
Rather than suppressing the free flow of factual information in the wine and spirits
markets, the Government seeks to control competition on the basis of strength by
monitoring distillers’ promotions and marketing. Respondent quite correctly notes
that the general thrust of federal alcohol policy appears to favor greater disclosure
of information, rather than less. This also seems to be the trend in federal
regulation of other consumer products as well. See, e. g., Nutrition Labeling and
Education Act of 1990, Pub. L. 101-535, 104 Stat. 2353, as amended (requiring
labels of food products sold in the United States to display nutritional information).
485
Respondent offers a plausible reading of the purpose behind § 205(e)(2), but the
prevention of misleading statements of alcohol content need not be the exclusive
Government interest *485 served by § 205(e)(2). In Posadas de Puerto Rico
Associates v. Tourism Co. of P. R., 478 U. S. 328, 341 (1986), we found that the
Puerto Rico Legislature’s interest in promoting the health, safety, and welfare of its
citizens by reducing their demand for gambling provided a sufficiently “substantial”
governmental interest to justify the regulation of gambling advertising. So too the
Government here has a significant interest in protecting the health, safety, and
welfare of its citizens by preventing brewers from competing on the basis of
alcohol strength, which could lead to greater alcoholism and its attendant social
costs. Both panels of the Court of Appeals that heard this case concluded that the
goal of suppressing strength wars constituted a substantial interest, and we cannot
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Rubin v. Coors Brewing Co., 514 US 476 – Supreme Court 1995 – Google Scholar
say that their conclusion is erroneous. We have no reason to think that strength
wars, if they were to occur, would not produce the type of social harm that the
Government hopes to prevent.
486
The Government attempts to bolster its position by arguing that the labeling ban
not only curbs strength wars, but also “facilitates” state efforts to regulate alcohol
under the Twenty-first Amendment. The Solicitor General directs us to United
States v. Edge Broadcasting Co., 509 U. S. 418 (1993), in which we upheld a
federal law that prohibited lottery advertising by radio stations located in States
that did not operate lotteries. That case involved a station located in North Carolina
(a nonlottery State) that broadcast lottery advertisements primarily into Virginia (a
State with a lottery). We upheld the statute against First Amendment challenge in
part because it supported North Carolina’s antigambling policy without unduly
interfering with States that sponsored lotteries. Id. , at 431-435. In this case, the
Government claims that the interest behind § 205(e)(2) mirrors that of the statute
in Edge Broadcasting because it prohibits disclosure of alcohol content only in
States that do not affirmatively require brewers to provide that information. In the
Government’s view, this saves States that might wish to *486 ban such labels the
trouble of enacting their own legislation, and it discourages beer drinkers from
crossing state lines to buy beer they believe is stronger.
We conclude that the Government’s interest in preserving state authority is not
sufficiently substantial to meet the requirements of Central Hudson. Even if the
Federal Government possessed the broad authority to facilitate state powers, in
this case the Government has offered nothing that suggests that States are in
need of federal assistance. States clearly possess ample authority to ban the
disclosure of alcohol content—subject, of course, to the same First Amendment
restrictions that apply to the Federal Government. Unlike the situation in Edge
Broadcasting, the policies of some States do not prevent neighboring States from
pursuing their own alcohol-related policies within their respective borders. One
State’s decision to permit brewers to disclose alcohol content on beer labels will
not preclude neighboring States from effectively banning such disclosure of that
information within their borders.
B
The remaining Central Hudson factors require that a valid restriction on
commercial speech directly advance the governmental interest and be no more
extensive than necessary to serve that interest. We have said that “[t]he last two
steps of the Central Hudson analysis basically involve a consideration of the `fit’
between the legislature’s ends and the means chosen to accomplish those ends.”
Posadas, supra, at 341. The Tenth Circuit found that § 205(e)(2) failed to advance
the interest in suppressing strength wars sufficiently to justify the ban. We agree.
487
Just two Terms ago, in Edenfield v. Fane, 507 U. S. 761 (1993), we had occasion
to explain the Central Hudson factor concerning whether the regulation of
commercial speech “directly advances the governmental interest asserted.”
Central Hudson, 447 U. S., at 566. In Edenfield, we decided *487 that the
Government carries the burden of showing that the challenged regulation
advances the Government’s interest “in a direct and material way.” 507 U. S., at
767. That burden “is not satisfied by mere speculation or conjecture; rather, a
governmental body seeking to sustain a restriction on commercial speech must
demonstrate that the harms it recites are real and that its restriction will in fact
alleviate them to a material degree.” Id. , at 770-771. We cautioned that this
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requirement was critical; otherwise, “a State could with ease restrict commercial
speech in the service of other objectives that could not themselves justify a burden
on commercial expression.” Id., at 771.
The Government attempts to meet its burden by pointing to current developments
in the consumer market. It claims that beer producers are already competing and
advertising on the basis of alcohol strength in the “malt liquor” segment of the beer
market.[3] The Government attempts to show that this competition threatens to
spread to the rest of the market by directing our attention to respondent’s motives
in bringing this litigation. Respondent allegedly suffers from consumer
misperceptions that its beers contain less alcohol than other brands. According to
the Government, once respondent gains relief from § 205(e)(2), it will use its labels
to overcome this handicap.
488
Under the Government’s theory, § 205(e)(2) suppresses the threat of such
competition by preventing consumers from choosing beers on the basis of alcohol
content. It is assuredly a matter of “common sense,” Brief for Petitioner 27, that a
restriction on the advertising of a product characteristic will decrease the extent to
which consumers select a product on the basis of that trait. In addition to common
sense, the Government urges us to turn to history as a guide. According *488 to
the Government, at the time Congress enacted the FAAA, the use of labels
displaying alcohol content had helped produce a strength war. Section 205(e)(2)
allegedly relieved competitive pressures to market beer on the basis of alcohol
content, resulting over the long term in beers with lower alcohol levels.
We conclude that § 205(e)(2) cannot directly and materially advance its asserted
interest because of the overall irrationality of the Government’s regulatory scheme.
While the laws governing labeling prohibit the disclosure of alcohol content unless
required by state law, federal regulations apply a contrary policy to beer
advertising. 27 U. S. C. § 205(f)(2); 27 CFR § 7.50 (1994). Like § 205(e)(2), these
restrictions prohibit statements of alcohol content in advertising, but, unlike §
205(e)(2), they apply only in States that affirmatively prohibit such advertisements.
As only 18 States at best prohibit disclosure of content in advertisements, App. to
Brief for Respondent 1a—12a, brewers remain free to disclose alcohol content in
advertisements, but not on labels, in much of the country. The failure to prohibit
the disclosure of alcohol content in advertising, which would seem to constitute a
more influential weapon in any strength war than labels, makes no rational sense if
the Government’s true aim is to suppress strength wars.
489
Other provisions of the FAAA and its regulations similarly undermine § 205(e)(2)’s
efforts to prevent strength wars. While § 205(e)(2) bans the disclosure of alcohol
content on beer labels, it allows the exact opposite in the case of wines and spirits.
Thus, distilled spirits may contain statements of alcohol content, 27 CFR § 5.37
(1994), and such disclosures are required for wines with more than 14 percent
alcohol, 27 CFR § 4.36 (1994). If combating strength wars were the goal, we
would assume that Congress would regulate disclosure of alcohol content for the
strongest beverages as well as for the weakest ones. Further, the Government
permits brewers to signal high alcohol content through use *489 of the term “malt
liquor.” Although the Secretary has proscribed the use of various colorful terms
suggesting high alcohol levels, 27 CFR § 7.29(f) (1994), manufacturers still can
distinguish a class of stronger malt beverages by identifying them as malt liquors.
One would think that if the Government sought to suppress strength wars by
prohibiting numerical disclosures of alcohol content, it also would preclude brewers
from indicating higher alcohol beverages by using descriptive terms.
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Rubin v. Coors Brewing Co., 514 US 476 – Supreme Court 1995 – Google Scholar
While we are mindful that respondent only appealed the constitutionality of §
205(e)(2), these exemptions and inconsistencies bring into question the purpose of
the labeling ban. To be sure, the Government’s interest in combating strength wars
remains a valid goal. But the irrationality of this unique and puzzling regulatory
framework ensures that the labeling ban will fail to achieve that end. There is little
chance that § 205(e)(2) can directly and materially advance its aim, while other
provisions of the same Act directly undermine and counteract its effects.
This conclusion explains the findings of the courts below. Both the District Court
and the Court of Appeals found that the Government had failed to present any
credible evidence showing that the disclosure of alcohol content would promote
strength wars. In the District Court’s words, “none of the witnesses, none of the
depositions that I have read, no credible evidence that I have heard, lead[s] me to
believe that giving alcoholic content on labels will in any way promote. . . strength
wars.” App. to Pet. for Cert. A-38. See also Bentsen, 2 F. 3d, at 359. Indeed, the
District Court concluded that “[p]rohibiting the alcoholic content disclosure of malt
beverages on labels has little, if anything, to do with the type of advertising that
490
promotes strength wars.” App. to Pet. for Cert. A-36.[4] As the FAAA’s exceptions
and regulations *490 would have counteracted any effect the labeling ban had
exerted, it is not surprising that the lower courts did not find any evidence that §
205(e)(2) had suppressed strength wars.
The Government’s brief submits anecdotal evidence and educated guesses to
suggest that competition on the basis of alcohol content is occurring today and that
§ 205(e)(2)’s ban has constrained strength wars that otherwise would burst out of
control. These various tidbits, however, cannot overcome the irrationality of the
regulatory scheme and the weight of the record. The Government did not offer any
convincing evidence that the labeling ban has inhibited strength wars. Indeed, it
could not, in light of the effect of the FAAA’s other provisions. The absence of
strength wars over the past six decades may have resulted from any number of
factors.
Nor do we think that respondent’s litigating positions can be used against it as
proof that the Government’s regulation is necessary. That respondent wishes to
disseminate factual information concerning alcohol content does not demonstrate
that it intends to compete on the basis of alcohol content. Brewers may have many
different reasons—only one of which might be a desire to wage a strength war—
why they wish to disclose the potency of their beverages.
491
Even if § 205(e)(2) did meet the Edenfield standard, it would still not survive First
Amendment scrutiny because the Government’s regulation of speech is not
sufficiently tailored to its goal. The Government argues that a sufficient “fit” exists
here because the labeling ban applies to only one product characteristic and
because the ban does not prohibit all disclosures of alcohol content—it applies
only to those involving labeling and advertising. In response, respondent suggests
several alternatives, such as directly limiting the alcohol content of beers,
prohibiting marketing efforts emphasizing *491 high alcohol strength (which is
apparently the policy in some other western nations), or limiting the labeling ban
only to malt liquors, which is the segment of the market that allegedly is threatened
with a strength war. We agree that the availability of these options, all of which
could advance the Government’s asserted interest in a manner less intrusive to
respondent’s First Amendment rights, indicates that § 205(e)(2) is more extensive
than necessary.
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Rubin v. Coors Brewing Co., 514 US 476 – Supreme Court 1995 – Google Scholar
IV
In sum, although the Government may have a substantial interest in suppressing
strength wars in the beer market, the FAAA’s countervailing provisions prevent §
205(e)(2) from furthering that purpose in a direct and material fashion. The FAAA’s
defects are further highlighted by the availability of alternatives that would prove
less intrusive to the First Amendment’s protections for commercial speech.
Because we find that § 205(e)(2) fails the Central Hudson test, we affirm the
decision of the court below.
It is so ordered.
Justice Stevens, concurring in the judgment.
Although I agree with the Court’s persuasive demonstration that this statute does
not serve the Government’s purported interest in preventing “strength wars,” I write
separately because I am convinced that the constitutional infirmity in the statute is
more patent than the Court’s opinion indicates. Instead of relying on the formulaic
approach announced in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n
of N. Y., 447 U. S. 557 (1980), I believe the Court should ask whether the
justification for allowing more regulation of commercial speech than other speech
has any application to this unusual statute.
492
In my opinion the “commercial speech doctrine” is unsuited to this case, because
the Federal Alcohol Administration *492 Act (FAAA) neither prevents misleading
speech nor protects consumers from the dangers of incomplete information. A
truthful statement about the alcohol content of malt beverages would receive full
First Amendment protection in any other context; without some justification tailored
to the special character of commercial speech, the Government should not be able
to suppress the same truthful speech merely because it happens to appear on the
label of a product for sale.
I
The First Amendment generally protects the right not to speak as well as the right
to speak. See McIntyre v. Ohio Elections Comm’n, ante, at 342; Miami Herald
Publishing Co. v. Tornillo, 418 U. S. 241 (1974); cf. Wallace v. Jaffree, 472 U. S.
38, 51-52 (1985). In the commercial context, however, government is not only
permitted to prohibit misleading speech that would be protected in other contexts,
Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S.
748, 771-772 (1976), but it often requires affirmative disclosures that the speaker
493
might not make voluntarily.[1] The regulation of statements about alcohol content in
the statute before us today is a curious blend of prohibitions and requirements. It
prohibits the disclosure of the strength of some malt beverages while requiring the
disclosure of the strength of vintage wines. In my judgment the former prohibition
is just as unacceptable in a commercial context as in any other because it is not
supported by the rationales for treating commercial speech differently under *493
the First Amendment: that is, the importance of avoiding deception and protecting
the consumer from inaccurate or incomplete information in a realm in which the
accuracy of speech is generally ascertainable by the speaker.
I am willing to assume that an interest in avoiding the harmful consequences of socalled “strength wars” would justify disclosure requirements explaining the risks
and predictable harms associated with the consumption of alcoholic beverages.
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Rubin v. Coors Brewing Co., 514 US 476 – Supreme Court 1995 – Google Scholar
Such a measure could be justified as a means to ensure that consumers are not
led, by incomplete or inaccurate information, to purchase products they would not
purchase if they knew the truth about them. I see no basis, however, for upholding
a prohibition against the dissemination of truthful, nonmisleading information about
an alcoholic beverage merely because the message is propounded in a
commercial context.
II
The Court’s continued reliance on the misguided approach adopted in Central
Hudson makes this case appear more difficult than it is. In Central Hudson, the
Court held that commercial speech is categorically distinct from other speech
protected by the First Amendment. 447 U. S., at 561-566, and n. 5. Defining
“commercial speech,” alternatively, as “expression related solely to the economic
interests of the speaker and its audience,” id., at 561, and as “`speech proposing a
commercial transaction,’ ” id., at 562, quoting Ohralik v. Ohio State Bar Assn., 436
U. S. 447, 455-456 (1978), the Court adopted its much-quoted four-part test for
determining when the government may abridge such expression. In my opinion the
borders of the commercial speech category are not nearly as clear as the Court
has assumed, and its four-part test is not related to the reasons for allowing more
regulation of commercial speech than other speech. See Central Hudson, 447 U.
S., at 579-582 (Stevens, J., concurring in judgment).
494
*494 The case before us aptly demonstrates the artificiality of a rigid
commercial/noncommercial distinction. The speech at issue here is an unadorned,
accurate statement, on the label of a bottle of beer, of the alcohol content of the
beverage contained therein. This, the majority finds, ante, at 481— 482, is
“commercial speech.” The majority does not explain why the words “4.73% alcohol
by volume”[2] are commercial. Presumably, if a nonprofit consumer protection
group were to publish the identical statement, “Coors beer has 4.73% alcohol by
volume,” on the cover of a magazine, the Court would not label the speech
“commercial.” It thus appears, from the facts of this case, that whether or not
speech is “commercial” has no necessary relationship to its content. If the Coors
label is commercial speech, then, I suppose it must be because (as in Central
Hudson ) the motivation of the speaker is to sell a product, or because the speech
tends to induce consumers to buy a product.[3] Yet, economic motivation or impact
alone cannot make speech less deserving of constitutional protection, or else all
authors and artists who sell their works would be correspondingly disadvantaged.
Neither can the value of speech be diminished solely because of its placement on
the label of a product. Surely a piece of newsworthy information on the cover of a
magazine, or a book review on the back of a book’s dust jacket, is entitled to full
constitutional protection.
495
As a matter of common sense, any description of commercial speech that is
intended to identify the category of speech entitled to less First Amendment
protection should relate to the reasons for permitting broader regulation: namely,
commercial speech’s potential to mislead. See Virginia Bd. of *495 Pharmacy, 425
U. S., at 771-772; Bates, 433 U. S., at 383-384; Bolger v. Youngs Drug Products
Corp., 463 U. S. 60, 81-83 (1983) (Stevens, J., concurring in judgment); see also
Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 426 (1993) (city’s regulation
of commercial speech bore no relationship to reasons why commercial speech is
entitled to less protection). Although some false and misleading statements are
entitled to First Amendment protection in the political realm, see, e. g., Gertz v.
Robert Welch, Inc., 418 U. S. 323 (1974); New York Times Co. v. Sullivan, 376 U.
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Rubin v. Coors Brewing Co., 514 US 476 – Supreme Court 1995 – Google Scholar
S. 254 (1964), the special character of commercial expression justifies restrictions
on misleading speech that would not be tolerated elsewhere. As Justice Stewart
explained:
“In contrast to the press, which must often attempt to assemble the
true facts from sketchy and sometimes conflicting sources under the
pressure of publication deadlines, the commercial advertiser generally
knows the product or service he seeks to sell and is in a position to
verify the accuracy of his factual representations before he
disseminates them. The advertiser’s access to the truth about his
product and its price substantially eliminates any danger that
government regulation of false or misleading price or product
advertising will chill accurate and nondeceptive commercial
expression. There is, therefore, little need to sanction `some falsehood
in order to protect speech that matters.’ ” Vir- ginia Bd. of Pharmacy,
425 U. S., at 777-778 (concurring opinion), quoting Gertz v. Robert
Welch, Inc., 418 U. S., at 341.[4]
496
*496 See also Bates, 433 U. S., at 383.
Not only does regulation of inaccurate commercial speech exclude little truthful
speech from the market, but false or misleading speech in the commercial realm
also lacks the value that sometimes inheres in false or misleading political speech.
Transaction-driven speech usually does not touch on a subject of public debate,
and thus misleading statements in that context are unlikely to engender the
beneficial public discourse that flows from political controversy. Moreover, the
consequences of false commercial speech can be particularly severe: Investors
may lose their savings, and consumers may purchase products that are more
dangerous than they believe or that do not work as advertised. Finally, because
commercial speech often occurs in the place of sale, consumers may respond to
the falsehood before there is time for more speech and considered reflection to
minimize the risks of being misled. See Ohralik, 436 U. S., at 447, 457-458
(distinguishing in-person attorney solicitation of clients from written solicitation).
The evils of false commercial speech, which may have an immediate harmful
impact on commercial transactions, together with the ability of purveyors of
commercial speech to control falsehoods, explain why we tolerate more
governmental regulation of this speech than of most other speech.
497
In this case, the Government has not identified a sufficient interest in suppressing
the truthful, unadorned, informative speech at issue here. If Congress had sought
to regulate all statements of alcohol content (say, to require that they be of a size
visible to consumers or that they provide specific *497 information for comparative
purposes) in order to prevent brewers from misleading consumers as to the true
alcohol content of their beverages, then this would be a different case. But absent
that concern, I think respondent has a constitutional right to give the public
accurate information about the alcoholic content of the malt beverages that it
produces. I see no reason why the fact that such information is disseminated on
the labels of respondent’s products should diminish that constitutional protection.
On the contrary, the statute at issue here should be subjected to the same
stringent review as any other content-based abridgment of protected speech.
III
Whatever standard is applied, I find no merit whatsoever in the Government’s
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Rubin v. Coors Brewing Co., 514 US 476 – Supreme Court 1995 – Google Scholar
assertion that an interest in restraining competition among brewers to satisfy
consumer demand for stronger beverages justifies a statutory abridgment of
truthful speech. Any “interest” in restricting the flow of accurate information
because of the perceived danger of that knowledge is anathema to the First
Amendment; more speech and a better informed citizenry are among the central
goals of the Free Speech Clause. Accordingly, the Constitution is most skeptical of
supposed state interests that seek to keep people in the dark for what the
government believes to be their own good. See Virginia Bd. of Pharmacy, 425 U.
S., at 769-770; Bates, 433 U. S., at 374-375. One of the vagaries of the
“commercial speech” doctrine in its current form is that the Court sometimes takes
such paternalistic motives seriously. See United States v. Edge Broadcasting Co.,
509 U. S. 418, 439-440 (1993) (Stevens, J., dissenting); Posadas de Puerto Rico
Associates v. Tourism Co. of P. R., 478 U. S. 328, 358 (1986) (Brennan, J.,
dissenting).
498
In my opinion, the Government’s asserted interest, that consumers should be
misled or uninformed for their own protection, does not suffice to justify restrictions
on protected speech in any context, whether under “exacting scrutiny” or *498
some other standard. If Congress is concerned about the potential for increases in
the alcohol content of malt beverages, it may, of course, take other steps to
combat the problem without running afoul of the First Amendment—for example,
Congress may limit directly the alcoholic content of malt beverages. But Congress
may not seek to accomplish the same purpose through a policy of consumer
ignorance, at the expense of the free-speech rights of the sellers and purchasers.
See Virginia Bd. of Pharmacy, 425 U. S., at 756-757. If varying alcohol strengths
are lawful, I see no reason why brewers may not advise customers that their
beverages are stronger—or weaker—than competing products.
In my opinion, this statute is unconstitutional because, regardless of the standard
of review, the First Amendment mandates rejection of the Government’s proffered
justification for this restriction. Although some regulations of statements about
alcohol content that increase consumer awareness would be entirely proper, this
statutory provision is nothing more than an attempt to blindfold the public.
Accordingly, I concur in the Court’s judgment.
[*] Briefs of amici curiae urging reversal were filed for the Center for Science in the Public Interest by
Bruce A. Silverglade; and for the Council of State Governments et al. by Richard Ruda.
Briefs of amici curiae urging affirmance were filed for the Association of National Advertisers, Inc., et al.
by Burt Neuborne, Gilbert H. Weil, Valerie Schulte, and John F. Kamp; for Public Citizen by David C.
Vladeck; for the United States Telephone Association et al. by Michael W. McConnell, Kenneth S.
Geller, Charles A. Rothfeld, William Barfield, and Gerald E. Murray; and for the Washington Legal
Foundation by Charles Fried, Donald B. Ayer, Daniel J. Popeo, and Richard A. Samp.
Briefs of amici curiae were filed for the Beer Institute by P. Cameron DeVore, John J. Walsh, and
Steven G. Brody; and for the Wine Institute by John C. Jeffries, Jr.
[1] BATF has suspended § 7.26 to comply with the District Court’s order enjoining the enforcement of
that provision. 58 Fed. Reg. 21228 (1993). Pending the final disposition of this case, interim regulations
permit the disclosure of alcohol content on beer labels. 27 CFR § 7.71 (1994).
[2] The Government argues that Central Hudson imposes too strict a standard for reviewing § 205(e)
(2), and urges us to adopt instead a far more deferential approach to restrictions on commercial speech
concerning alcohol. Relying on United States v. Edge Broadcasting Co., 509 U. S. 418 (1993), and
Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328 (1986), the Government
suggests that legislatures have broader latitude to regulate speech that promotes socially harmful
activities, such as alcohol consumption, than they have to regulate other types of speech. Although
Edge Broadcasting and Posadas involved the advertising of gambling activities, the Government
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Rubin v. Coors Brewing Co., 514 US 476 – Supreme Court 1995 – Google Scholar
argues that we also have applied this principle to speech concerning alcohol. See California v. LaRue,
409 U. S. 109, 138 (1972) (holding that States may ban nude dancing in bars and nightclubs that serve
liquor).
Neither Edge Broadcasting nor Posadas compels us to craft an exception to the Central Hudson
standard, for in both of those cases we applied the Central Hudson analysis. Indeed, Edge
Broadcasting specifically avoided reaching the argument the Government makes here because the
Court found that the regulation in question passed muster under Central Hudson. 509 U. S., at 425. To
be sure, Posadas did state that the Puerto Rico Government could ban promotional advertising of
casino gambling because it could have prohibited gambling altogether. 478 U. S., at 346. But the Court
reached this argument only after it already had found that the state regulation survived the Central
Hudson test. See 478 U. S., at 340-344. The Court raised the Government’s point in response to an
alternative claim that Puerto Rico’s regulation was inconsistent with Carey v. Population Services Int’l,
431 U. S. 678 (1977), and Bigelow v. Virginia, 421 U. S. 809 (1975). Posadas, supra, at 345-346.
Nor does LaRue support the Government’s position. LaRue did not involve commercial speech about
alcohol, but instead concerned the regulation of nude dancing in places where alcohol was served. 409
U. S., at 114.
[3] “`Malt liquor’ is the term used to designate those malt beverages with the highest alcohol content .. .
. Malt liquors represent approximately three percent of the malt beverage market.” Adolph Coors Co. v.
Bentsen, 2 F. 3d 355, 358, n. 4 (CA10 1993).
[4] Not only was there little evidence that American brewers intend to increase alcohol content, but the
lower courts also found that “in the United States . . .the vast majority of consumers .. . value taste and
lower calories—both of which are adversely affected by increased alcohol strength.” Bentsen, 2 F. 3d,
at 359; accord, App. to Pet. for Cert. A-37.
[1] See In re R. M. J., 455 U. S. 191, 201 (1982) (“[A] warning or disclaimer might be appropriately
required . . . in order to dissipate the possibility of consumer confusion or deception”), citing Bates v.
State Bar of Ariz., 433 U. S. 350, 375 (1977); see also 15 U. S. C. § 1333 (requiring “Surgeon
General’s Warning” labels on cigarettes); 21 U. S. C. § 343 (1988 ed. and Supp. V) (setting labeling
requirements for food products); 21 U. S. C. § 352 (1988 ed. and Supp. V) (setting labeling
requirements for drug products); 15 U. S. C. § 77e (requiring registration statement before selling
securities).
[2] The 4.73 percent figure comes from an “[i]ndependent [l]aboratory [a]nalysis” of Coors beer cited in
a Coors advertisement. App. 65.
[3] The inducement rationale might also apply to a consumer protection publication, if it is sold on a
news rack, as some consumers will buy the publication because they wish to learn the varying alcohol
contents of competing products.
[4] Justice Stewart’s reasoning has been the subject of scholarly criticism, on the ground that some
speech surrounding a commercial transaction is not readily verifiable, while some political speech is
easily verifiable by the speaker. See Farber, Commercial Speech and First Amendment Theory, 74 Nw.
U. L. Rev. 372, 385-386 (1979). Although I agree that Justice Stewart’s distinction will not extend to
every instance of expression, I think his theory makes good sense as a general rule. Most of the time, if
a seller is representing a fact or making a prediction about his product, the seller will know whether his
statements are false or misleading and he will be able to correct them. On the other hand, the purveyor
of political speech is more often (though concededly not always) an observer who is in a poor position
to verify its truth. The paradigm example of this latter phenomenon is, of course, the journalist who
must rely on confidential sources for his information.
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