44 Liquormart, Inc. v. Rhode Island
517 U.S. 484 (1996)

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No. 94-1140. Argued November 1, 1995-Decided May 13, 1996

Petitioners, a licensed Rhode Island liquor retailer and a licensed Massachusetts liquor retailer patronized by Rhode Island residents, filed this action seeking a declaratory judgment that Rhode Island laws banning the advertisement of retail liquor prices except at the place of sale violate the First Amendment. In concluding that the ban was unconstitutional because it did not directly advance the State's asserted interest in the promotion of temperance and was more extensive than necessary to serve that interest, the District Court reasoned that the party seeking to uphold a restriction on commercial speech carries the burden of justifying it and that the Twenty-first Amendment did not shift or diminish that burden. In reversing, the Court of Appeals, inter alia, found "inherent merit" in the State's submission that competitive price advertising would ultimately increase sales, and agreed with it that the Twenty-first Amendment gave its advertising ban an added presumption of validity.

Held: The judgment is reversed. 39 F.3d 5, reversed.

JUSTICE STEVENS delivered the opinion of the Court with respect to Parts I, II, VII, and VIII, concluding:

1. The Twenty-first Amendment cannot save Rhode Island's price advertising ban because that Amendment does not qualify the First Amendment's prohibition against laws abridging the freedom of speech. Although the Twenty-first Amendment-which repealed Prohibition and gave the States the power to prohibit commerce in, or the use of, alcoholic beverages-limits the dormant Commerce Clause's effect on a State's regulatory power over the delivery or use of liquor within its borders, the Amendment does not license the States to ignore their obligations under other constitutional provisions. See, e. g., Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691,712. California v. LaRue, 409 U. S. 109, 118-119, disavowed. Because the First Amendment must be included among those other provisions, the Twenty-first Amendment does not shield the advertising ban from constitutional scrutiny. Pp. 514-516.

2. Because Rhode Island has failed to carry its heavy burden of justifying its complete ban on price advertising, that ban is invalid. P. 516.


JUSTICE STEVENS delivered the principal opinion with respect to Parts III-VI, concluding that Rhode Island's ban on advertisements that provide the public with accurate information about retail liquor prices is an unconstitutional abridgment of the freedom of speech. Pp. 495-514.

(a) JUSTICE STEVENS, joined by JUSTICE KENNEDY, JUSTICE SOUTER, and JUSTICE GINSBURG, concluded in Part III that although the First Amendment protects the dissemination of truthful and nonmisleading commercial messages about lawful products and services in order to ensure that consumers receive accurate information, see, e. g., Virginia Ed. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748,765, the special nature of commercial speech, including its "greater objectivity" and "greater hardiness," authorizes the State to regulate potentially deceptive or overreaching advertising more freely than other forms of protected speech, see, e. g., id., at 771772, n. 24, and requires less than strict review of such regulations, Central Hudson Gas & Elec. Corp. v. Public Servo Comm'n of N. Y., 447 U. S. 557, 566, n. 9. However, regulations that entirely suppress commercial speech in order to pursue a policy not related to consumer protection must be reviewed with "special care," and such blanket bans should not be approved unless the speech itself was flawed in some way, either because it was deceptive or related to unlawful activity. See ibid. Pp. 495-500.

(b) JUSTICE STEVENS, joined by JUSTICE KENNEDY and JUSTICE GINSBURG, concluded in Part IV that a review of the case law reveals that commercial speech regulations are not all subject to a similar form of constitutional review simply because they target a similar category of expression. When a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information, the regulation's purpose is consistent with the reasons for according constitutional protection to commercial speech and therefore justifies less than strict review. However, where a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands. The special dangers that attend such complete bans-including, most obviously, the fact that they all but foreclose alternative channels of communication-present sound reasons that justify more careful review. Pp. 501-504.

(c) JUSTICE STEVENS, joined by JUSTICE KENNEDY, JUSTICE SOUTER, and JUSTICE GINSBURG, concluded in Part V that because Rhode Island's advertising ban constitutes a blanket prohibition against truthful, nonmisleading speech about a lawful product, and serves an end

Full Text of Opinion

Primary Holding
Legislatures may not promulgate total bans on truthful commercial advertisements.
Rhode Island prohibited advertising the retail price of any alcoholic beverage that was sold in the state. Correspondingly, the news media was not allowed to publish this type of advertising. When the law was challenged on First Amendment grounds, Rhode Island asserted that it was based on the legitimate state interest of reducing the market-wide consumption of alcohol. However, the trial court ruled that the law was unconstitutional because advertising liquor prices had no impact on the consumption of liquor, so the law had no connection to the asserted state interest.



  • John Paul Stevens (Author)
  • Antonin Scalia
  • Anthony M. Kennedy
  • David H. Souter
  • Ruth Bader Ginsburg
  • Clarence Thomas

Fraudulent and misleading advertising traditionally has been banned under the common law. The First Amendment does protect commercial speech, but to a lesser extent than other forms of speech. Advertising long has been used to provide information to consumers about the availability of goods and services. The appropriate standard, which derives from Central Hudson v. Public Service Commission of N.Y. (1980), requires proof of a significant state interest and the absence of available alternatives for the speech.

Strict scrutiny should apply when there is a blanket prohibition on a certain type of speech, such as this law. The state could have used alternative measures to reduce alcohol consumption, such as by imposing taxes. The law lacks a rational relationship to a legitimate state interest.


  • Clarence Thomas (Author)

States should not be allowed to keep consumers in ignorance in order to manipulate their choices. No balancing test is required to find that the law is unconstitutional. Commercial speech that is accurate should receive the full extent of protection.


  • Sandra Day O'Connor (Author)
  • William Hubbs Rehnquist
  • David H. Souter
  • Stephen G. Breyer

This law would be unconstitutional under even the most lenient standard of review, so it is a relatively easy case to resolve.


  • Antonin Scalia (Author)

Case Commentary

The Court was offered the opportunity to reject its traditional standard, but it chose to resolve the decision more narrowly. Its fragmented group of opinions suggested uncertainty in this area, although it is generally established that states cannot prevent their citizens from making choices by denying them information.

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