44 Liquormart Inc. v. Rhode Island – Oral Argument – November 01, 1995

Media for 44 Liquormart Inc. v. Rhode Island

Audio Transcription for Opinion Announcement – May 13, 1996 in 44 Liquormart Inc. v. Rhode Island

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William H. Rehnquist:

We’ll hear argument first this morning in Number 94 1140, 44 Liquormart, Inc., v. Rhode Island and Rhode Island Liquor Stores Association.

Mr. Lawson.

Evan T. Lawson:

Mr. Chief Justice and may it please the Court–

Price advertizing has always been at the heart of the commercial speech doctrine.

Indeed, it was the Court’s concern for the free flow of price information that prompted the Court about 20 years ago to overturn the concept that commercial speech had no First Amendment protection and to accord particularly price advertizing protection under the First Amendment.

Since that time, the jurisprudence of the Court has developed, and the Central Hudson test has become established and refined.

Application of the Central Hudson test to this case would yield the result that Rhode Island’s ban on truthful price advertizing should be found unconstitutional.

Ordinarily, the Central Hudson test seems to be discussed in a sequential fashion, but I would like to turn to the last part of the Central Hudson test, because I think that it is under that part that the defect of this ban is the most clearly apparent.

The last part of the Central Hudson test requires that the State’s restriction on speech be no more expansive than is necessary.

As this Court has posited it, that means that the restriction not burden speech any more than is necessary.

In this particular case, it is clear on the record both from the testimony of the State’s own expert, and from the obvious facts of the case that are not disputed, that Rhode Island could accomplish the purpose that it says it wants to accomplish, that is, keeping an artificial price floor for alcoholic beverages simply by setting tax rates or by setting minimum consumer prices.

William H. Rehnquist:

Well, now, there’s no… we don’t apply a least restrictive means test in that fourth prong of Central Hudson, so to show that something else might have been done isn’t enough, I don’t think.

Evan T. Lawson:

I’m not arguing for a least restrictive means test.

What I’m suggesting to the Court is that, where the State has a choice between regulating speech and not regulating speech at all, that it has an obvious alternative that doesn’t burden speech.

William H. Rehnquist:

Why isn’t that a least restrictive means approach?

Evan T. Lawson:

I don’t think it is because I think the least restrictive means approach would deal with an array of choices of various degrees of regulation of speech.

The precedent that I would cite for this is the recent Coors decision.

In the recent Coors decision, you will recall, the Government was concerned with preventing strength wars and this Court–

Sandra Day O’Connor:

Wasn’t that a Federal regulation we dealt with–

Evan T. Lawson:

–Yes, it was.

Sandra Day O’Connor:

–in Coors?

And here we’re dealing with a State regulation.

Evan T. Lawson:

That is correct.

Sandra Day O’Connor:

And presumably the States have a little more leeway because of the Twenty first Amendment in the area of control of alcoholic beverages sales.

Evan T. Lawson:

I would submit to you that the State’s power to control alcoholic beverages sales is not dependent upon the Twenty First amendment, but is inherent in their police power–

Sandra Day O’Connor:

Well, surely the Twenty First Amendment extends some power to the States that they wouldn’t otherwise have in this area–

Evan T. Lawson:

–Yes, it does.

Sandra Day O’Connor:

–with respect to the Commerce Clause–

Evan T. Lawson:

Yes, it–

Sandra Day O’Connor:

–barriers.

Evan T. Lawson:

–Yes, it does, but what I’m suggesting to you, and what I’ve argued, is that the Twenty first Amendment does not in any way cut back on the force of the First Amendment as it is applied to the States.

Sandra Day O’Connor:

How do you explain this Court’s, action in Queensgate Investment Company in 1982, where the Court dismissed for want of a substantial Federal question a case where a State regulation of price advertizing of liquor was upheld?

Evan T. Lawson:

Well, quite frankly, I can’t explain it because the Court did not issue an opinion, and the Court has said in other–

Sandra Day O’Connor:

At least it said there wasn’t a substantial Federal question.

Evan T. Lawson:

–That’s correct, but the Court has said on other occasions that a summary dismissal of this sort does not imply even agreement with the opinion of the court that is below.

William H. Rehnquist:

It’s nonetheless a holding that the appeal raises no substantial Federal question.

Evan T. Lawson:

That is true.

Now, I can distinguish I think rather easily the Queensgate facts from the facts of this case.

For example, in the Queensgate situation, there was no blanket ban on price advertizing.

There was a ban on advertizing a price advantage.

It would seem to me that the State could, in fact, have a higher level of justification.

I’m not arguing that that would be proper, but I think it clearly distinguishes that from a total blackout of price information, which is what’s present in this case.

Sandra Day O’Connor:

Do you think that Posadas is some authority for saying that the State could ban any advertizing at all of alcoholic beverages?

Evan T. Lawson:

I don’t think that Posadas is quite that strong an authority.

I think that what Posadas says, as I read it, it suggests that if the State wants to stifle demand for a product, at least under the circumstances of Posadas it could do so by stifling advertizing.

Sandra Day O’Connor:

Do you think Rhode Island could ban all advertizing of alcoholic beverages?

Evan T. Lawson:

As I read the Court’s jurisprudence with the question put in that fashion, I think the answer is no, because what this Court has said is that States may not ban truthful, nonmisleading advertizing.

They may, however, restrict it if they do so in accordance with the Central Hudson test, so if you put the question in terms of a general ban, my answer to that would be no.

William H. Rehnquist:

Even though they could ban any sale or consumption of liquor.

Evan T. Lawson:

Yes, and the reason for that, Your Honor, is that it seems to me that the States must always act in accordance with the Constitution.

William H. Rehnquist:

Well, how does that square with Posadas, your position?

Evan T. Lawson:

Well, the way it squares with Posadas is that, first of all, in Posadas the Court was not confronted with a total ban on advertizing.

It was confronted with a partial restriction on certain types of advertizing, so that in terms of a precedential effect, it seems to me you cannot simply take the Posadas result and graft it onto this case.

Antonin Scalia:

Well, it’s the same here.

It’s not all advertizing.

It’s advertizing a price.

Evan T. Lawson:

That’s right.

Antonin Scalia:

You can advertize liquor all you like, just not the price.

Evan T. Lawson:

I agree with you, and I think that’s why–

Antonin Scalia:

So how is Posadas distinguished?

Evan T. Lawson:

–Posadas is distinguished only in that each case must apply the Central Hudson test to the facts that are before it.

The Court applied the Central Hudson test in Posadas and found the particular ban in Posadas to be justified.

Ruth Bader Ginsburg:

Isn’t this case, counsel, more like gambling ads than it is like the price of drugs approved by the FDA?

Evan T. Lawson:

I don’t think that it is.

I think it’s very distinguishable from that because of what the State has asserted as–

Ruth Bader Ginsburg:

Well, if we could–

Evan T. Lawson:

–its interest.

Ruth Bader Ginsburg:

–The State, as you said, could ban any sale of liquor.

Evan T. Lawson:

That seems clear.

Ruth Bader Ginsburg:

And it could ban gambling in its borders.

Evan T. Lawson:

That seems clear, too.

Ruth Bader Ginsburg:

But it couldn’t ban FDA approved drugs.

Evan T. Lawson:

That’s probably true as well.

Ruth Bader Ginsburg:

It couldn’t ban professional services.

Evan T. Lawson:

I think… well, I’m not sure whether it could or it couldn’t.

Antonin Scalia:

Are we resurrecting Lochner here?

Why couldn’t the State say no opticians… is there some… is Lochner back with us?

Evan T. Lawson:

I think… no, I think the State has a great deal of power to ban many things, and that’s why I think that the logic of saying, simply because you may have the power to ban something, that you then have the power to ban speech about something that you’re not banning, is quite a different proposition.

Antonin Scalia:

The State could ban toothpaste if it wanted to?

Evan T. Lawson:

Well, I think at some point you get to a–

Antonin Scalia:

To what?

Evan T. Lawson:

–You get to a point of irrationality.

Antonin Scalia:

To a constitutional provision on toothpaste?

Evan T. Lawson:

Well, I would be… I’d be hard–

Antonin Scalia:

At some point you get to Lochner, is that it?

Evan T. Lawson:

–I don’t think so.

I think that the State… I think that before you get to the kinds of questions of whether the State could ban toothpaste, you have to get through practical political considerations.

I think that there are certain things that the State can’t–

Antonin Scalia:

I’m not saying whether it would, I’m saying whether it could.

I don’t think any State would.

Evan T. Lawson:

–I think that–

Antonin Scalia:

I wouldn’t want to run on that ticket.

[Laughter]

Evan T. Lawson:

–I don’t think in Rhode Island you would want to run on the raising the price of alcoholic beverages ticket, either.

Antonin Scalia:

No, but the point is, you would say that if the State could ban toothpaste, and let’s assume it could unless you believe in Lochner, it still nonetheless could not ban toothpaste advertizing so long as it did not ban toothpaste.

Evan T. Lawson:

That’s exactly my… yes.

Antonin Scalia:

And you’d say liquor is no different from toothpaste.

Evan T. Lawson:

That’s right.

Antonin Scalia:

That’s a hard position to maintain, I suppose–

Evan T. Lawson:

Well, I think–

Antonin Scalia:

–that liquor is no different from toothpaste.

Evan T. Lawson:

–Well, I think that the Court has certainly suggested in the Coors case that when analyzing bans on commercial speech, it is not appropriate to recognize some hierarchy of products some of which are entitled to more protection than others.

Ruth Bader Ginsburg:

Well, may I take us away from toothpaste and back to gambling?

Evan T. Lawson:

Yes.

Ruth Bader Ginsburg:

If I just look at this Court’s precedent and I say, well, there’s Virginia Board and that concern, advertizing the price of drugs, and then there’s the restriction on advertizing to locals gambling casinos, so it seems to me liquor is closer to gambling casinos than it is to drugs, so why doesn’t Posadas control?

Evan T. Lawson:

It doesn’t control in the sense that… it controls in the sense that you apply the Central Hudson test to the facts of the case.

It doesn’t control in the sense that the application of the Central Hudson test to this case yields a contrary result than it would yield, or than it yielded in Posadas.

Stephen G. Breyer:

What I wonder is, if… just going back for a second to where you started, suppose that a State thinks the following, people think this in the legislature we don’t mind if people buy liquor, but we’re worried about them drinking too much, and we don’t mind if the price is high or if small retailers make a lot of money, because they’re in neighborhoods, and we’re afraid that if there are a lot of advertizing for price, all the high school students will run up where they say beer at half price this week, or whiskey reduced 30 percent.

And we’re just afraid that people will start running and drink more when they see those advertized specials and so we think it’s a sort of middle position, let them drink, let the price be fairly… a little higher than it otherwise would, but let’s stop these advertizings of specials, et cetera, because then we don’t get as many drunken drivers, and we don’t get as much abuse of the product.

Now, suppose that’s what they thought.

What’s the State supposed to do, in your view, under the Constitution?

Evan T. Lawson:

Well–

Stephen G. Breyer:

Is it that it can’t do anything about this problem that it sees, or it can’t implement the position that it’s reached?

Evan T. Lawson:

–I think that under the Central Hudson test, the State would have to show that–

Stephen G. Breyer:

The facts are just exactly what I said, and let’s also say they go into court and they make out a plausible case.

I mean, I imagine you could make out a plausible case on the facts for that.

Maybe they couldn’t, and then that would be easy, but let’s assume they make out a plausible case of just the facts I said.

Evan T. Lawson:

–Well, if–

Stephen G. Breyer:

Then what’s the law supposed to allow them to–

Evan T. Lawson:

–If the State were able to show that in fact–

Stephen G. Breyer:

–What they do is, they go and do what I said.

They get some people in who say, look, there are a lot of ads and it’s common sense to think when the price is a big special kids will run up, and others, and buy the whiskey, and then somebody says, you haven’t actually proved it.

They say, yeah, well, we’ve presented enough.

I mean, that’s the normal state of those things, okay, so I want to know what the law is under those circumstances.

Evan T. Lawson:

–I think the law is that under the Central Hudson test, they have not satisfied the Central Hudson test.

Stephen G. Breyer:

Right, so you’re saying the State’s powerless in that situation.

Evan T. Lawson:

No, I’m saying that the State–

Stephen G. Breyer:

I want to know what they’re supposed to do in order to implement all the hearings before the legislature that bore out those facts.

Evan T. Lawson:

–Well, if there were hearings that bore out those facts–

Stephen G. Breyer:

Let’s assume there are.

Evan T. Lawson:

–And if there were proof that was satisfactory that the State’s hypothesis were, in fact, correct–

Stephen G. Breyer:

I’m trying to get at what the State really should do.

I’m trying to make the world real, and I want to know–

–I thought what you said they should do is that they should set a minimum price.

Evan T. Lawson:

–Well, I think–

Antonin Scalia:

And that wouldn’t restrict speech.

Evan T. Lawson:

–I think–

Antonin Scalia:

It would have the same effect and not restrict speech.

I thought that’s–

Evan T. Lawson:

–That is what I said, but the proposition added a new… the hypothetical added a new factor, which was that the State didn’t want to keep the prices high, they just wanted to deter price advertizing because they thought that the presence of price advertizing itself was a stimulant.

David H. Souter:

–Yes, specials and all these different–

–Mr. Lawson, can’t you concede–

–What’s the answer?

In Justice Breyer’s example, can’t you concede that the State might very well, under those circumstances, prevail without conceding that the State prevails in this case, because you’ve got at least one added overlay, it seems to me, in this case, and that is you’ve got a lot of… or, you’ve got some empirical studies done by parties who are not interested in this litigation which tend to show that what is, in fact, I think intuitively, a very common sense view… I mean, Judge Aldrich was depending on that view to a degree in the court of appeals… doesn’t in fact seem to be borne out.

So don’t you have a different case from the one that rests upon the intuitive good sense and intuitive good sense alone?

Evan T. Lawson:

I think that I do and I also, in reviewing the cases that deal with this type of issue, note that very often these cases simply turn upon logical discourses.

Stephen G. Breyer:

Yes, but what’s worrying me is that so often these turn on, like, lawyer’s arguments as, there was 14 inches of proof on this side and 12 files of evidence on the other side, but in the reality, what you do is, you get witnesses who come in and say, sure, kids will buy more liquor if you advertize half price, and others say, we’re not certain of that, or how often.

Now, that’s… what I want to know is, given the State’s decision that that’s a problem, what, in your opinion, is the State supposed to do?

Evan T. Lawson:

Well, I think that going into the hypothetical, and recognizing that it’s not the facts of this case, that the question then would turn upon how much the State has to show.

This Court has never made explicit how much the State has to show as a factual matter.

Evan T. Lawson:

That’s why–

Antonin Scalia:

Everything just comes down to an evidentiary question, then.

I thought there was a point of principle at issue in this case, and I thought that the response to Justice Breyer’s question was, the State may require low prices… may require high prices, but if it permits low prices, it may not prevent people from telling about low prices because that’s a restriction of speech.

You may do the one, but you may not do the other.

I thought that was the point of principle.

Evan T. Lawson:

–I… that is the point that I was trying to make.

Antonin Scalia:

That the State may not have the motive that Justice Breyer–

–Thank you.

–attributes to it.

[Laughter]

But you’ve also… Mr. Lawson, you’ve also got a requirement, I suppose, at least in the light of Rubin and Coors, of proof that there in fact will be a material degree of advancement of the State’s interest.

Evan T. Lawson:

Yes.

David H. Souter:

So your answer is ultimately going to have to take into account the evidence on that point, isn’t it?

Evan T. Lawson:

Yes, it is, and I would suggest to you that despite the characterization of the First Circuit that the evidence went both ways, when you really look at it, the evidence only went one way.

William H. Rehnquist:

But we’re not here to evaluate evidence.

I mean, we generally leave that to lower courts.

Evan T. Lawson:

Well, the trial court evaluated the evidence and found as a fact that there was no material–

William H. Rehnquist:

And the First Circuit reversed it, and we generally take our facts from the court of appeals.

Evan T. Lawson:

–Well, I think that the First Circuit ordinarily would only be able to reverse a finding of fact of the trial court under the clearly erroneous standard.

William H. Rehnquist:

But in–

–How much of this is a matter of evidentiary proof, the way the stop light was green, or the stop light was red?

Isn’t there a certain latitude allowed to the State to indulge perhaps a common sense presumption that if you don’t advertize the price of liquor, the prices will remain higher and therefore not as much will be sold?

How many witnesses do you have to have to prove that?

Evan T. Lawson:

Well, I think that first of all there may be… if the State… if the State stated a logical proposition, and that was unopposed, perhaps that would be a different case, but in this case there was evidence, and the State’s own expert I think agreed that simply changing the price of liquor does not necessarily affect consumption.

Ruth Bader Ginsburg:

Mr. Lawson, why are you going away from your first point, which was, if they want to keep the price high, there are ways that they can keep the price high that don’t involve speech?

That’s… the State said something else besides keeping the price high.

They say, we can deter liquor sales 1) by having a high price, also making it harder to find what you want.

You can’t just run in and say, give me the special that you advertized in the paper, the search time, and there I don’t see your nonspeech alternative working.

Evan T. Lawson:

Well, the problem with the State’s position on the search time argument, which is the generic problem with the State’s position, is that in order for its theory to work, there has to be enough of a shift in prices that there will actually be an effect on consumption.

This is what the State’s expert talked about as the optimum price, and the State’s expert conceded that 1) he didn’t know what the optimum price would be, and he essentially conceded that he had no way of knowing, and in view of the fact that Rhode Island, with its price ban in effect for almost 40 years, was in the top third in consumption, there was no evidence to show that the State’s theory worked.

Evan T. Lawson:

And the three studies that were introduced, including the Ornstein and Hanssens study that the State relied on, indicated that the price advertizing ban had no effect on consumption in what are called licensed States, that is, States that use the free enterprise system.

Therefore, there simply is a failure of proof of the connection between an effect on price and an adequate effect on price.

Ruth Bader Ginsburg:

Mr. Lawson, why isn’t it just common sense that if I can go into the liquor store and it says, Chardonnay 50 percent off, I can go in and get it in 1 minute, but if it’s… there’s just all that wine out there, and I don’t know what one has the low price tag, I’m going to have to spend more time in the liquor shop?

Evan T. Lawson:

Well, I don’t think… let me illustrate the common sense approach in this fashion.

Hypothetically, let’s assume that I drink one glass of wine a week.

If wine suddenly became twice as expensive, I’m not going to pass up on my one glass of wine a week.

The State’s swing in prices is much less dramatic than that.

William H. Rehnquist:

So supposing I budget 10 a week for liquor.

Rather than saying, I’m going to drink one glass, I’m going to drink however much I can buy for 10.

[Laughter]

Evan T. Lawson:

I don’t think that’s… I don’t think that that’s really accurate.

I think that–

William H. Rehnquist:

How can you be sure that everyone works just the way your mind does… obviously a very disciplined fashion, I’m going to drink so much.

Maybe somebody else says I’ve got 10 in my weekly budget for liquor–

Evan T. Lawson:

–Well–

William H. Rehnquist:

–and I’ll buy however much I can.

Evan T. Lawson:

–If that hypothesis were correct, which seems to make common sense, it would show up in some data, and it doesn’t.

We have a dramatic situation, the Michigan situation, where you had a price advertizing ban in effect, you had it lifted for 16 months, and you had it put back into effect, it was studied, and there was found to be no difference.

Now, if the theory is correct that people will suddenly buy more because the price advertizing–

Antonin Scalia:

I guess these bars that have happy hours don’t know what they’re doing.

Evan T. Lawson:

–Well, I–

Antonin Scalia:

They’re just throwing money away.

Evan T. Lawson:

–I think the happy hour situation is different.

Antonin Scalia:

If low prices do not increase the volume of sales–

Evan T. Lawson:

The happy–

Antonin Scalia:

–that’s a novel economic theory.

[Laughter]

Evan T. Lawson:

–The happy hour situation is different, and I think you also have to remember that what the State has said it’s directing its regulation at is not volume of sales, it’s directing its regulation at temperance, which seems to mean abuse of consumption, although the State has shifted its ground a little bit.

There’s no indication that abuse of consumption is affected by the kind of price fix that the State is trying to put into effect.

And once again, getting back to Part 4, it can accomplish that objective without burdening speech at all, and I–

David H. Souter:

Just a quick point.

Apropos of evaluating what indications there are in the record, evaluating the evidence, do you concede that this Court has no independent role in doing that?

Evan T. Lawson:

–Well, I–

David H. Souter:

You seemed to–

Evan T. Lawson:

–I have in mind–

David H. Souter:

–by your silence a little while ago.

Is that your position?

Evan T. Lawson:

–No.

I have in mind the Bose case, which would indicate that the Court does have an independent role at least when the lower court’s decision runs contrary to protecting–

David H. Souter:

Protecting what?

Evan T. Lawson:

–freedom of speech.

David H. Souter:

Speech.

Evan T. Lawson:

Speech, particularly.

David H. Souter:

It’s the First Amendment–

Evan T. Lawson:

It’s the First Amendment–

David H. Souter:

–Okay.

Evan T. Lawson:

–Yes.

The First Amendment–

William H. Rehnquist:

Have we ever applied Bose in the commercial speech area?

Evan T. Lawson:

–Not that I’m aware of.

Not that I’m aware of.

William H. Rehnquist:

I’m not, either.

Evan T. Lawson:

I don’t know… one of the things that’s interested me about reviewing the commercial speech cases is how rarely they seem to actually be tried with evidence.

Mostly they seem to be… they seem to play out in some theoretical realm, and in the circumstances where there is evidence, by and large the Court seems to be upholding the side that has the weight of the evidence… for example, in the Florida Bar case.

John Paul Stevens:

May I ask, in this State is it legal to sell liquor to high school kids?

Evan T. Lawson:

No, it’s not.

I would like to reserve 2 minutes.

William H. Rehnquist:

Very well, Mr. Lawson.

Ms. Partington.

Rebecca T. Partington:

Thank you, Mr. Chief Justice, and may it please the Court–

Rebecca T. Partington:

The State of Rhode Island has adopted an advertizing ban on the price of alcoholic beverages that meets this Court’s test for restrictions on free speech, and commercial speech in particular, and that is what we have here, is commercial speech, which is entitled to a lesser degree of protection than other forms of noncommercial speak.

Anthony M. Kennedy:

Suppose that students in Rhode Island over 18, or over 21, had a computer Internet and one student was very interested in advising all of the people that would plug into the Internet what the prices were in various liquor stores for, say, beer and wine, could the State prohibit that?

Rebecca T. Partington:

Under the Twenty First Amendment separately, it probably could, but that’s not a commercial speech question, because that’s not proposing a commercial transaction from seller to buyer, so I think you have other concerns, other than a First Amendment concern in that case.

Anthony M. Kennedy:

Just addressing the First Amendment concerns, are there First Amendment problems with the hypothetical?

Rebecca T. Partington:

That would probably… the way I interpret that would be a free speech question, not a commercial speech question, and I think the standard would be different.

However, this Court has taught, as discussed earlier, and it’s the State’s position that if you can totally ban the sale of a product you can ban advertizements, but I have trouble seeing that as commercial speech.

I think that’s more of an opinion, and that the State would be hard pressed to restrict that sort of speech.

Anthony M. Kennedy:

And suppose that there were some sort of a charge to access this particular information.

Rebecca T. Partington:

I still don’t think the fact that… again, this Court has said in the case of where there is a book or a pamphlet that discusses sales of this and that, that doesn’t make it commercial speech just because you sell a book about something.

There has to be proposing a commercial transaction, and that’s the very limited area we’re in here today, so I think that those two situations are different.

Anthony M. Kennedy:

Suppose there were testimony… and there isn’t.

This is wholly hypothetical, but suppose the availability of the Internet type of… or computer information type of publication was widely available and widely used, would that change the calculus here, so far as judging the constitutionality of banning it in newspapers?

Rebecca T. Partington:

Of banning it in newspapers?

Anthony M. Kennedy:

Yes.

Rebecca T. Partington:

Not unless it became commercial speech.

I don’t think the size of the audience is a factor in the Central Hudson test.

Anthony M. Kennedy:

Could a newspaper just on its own print all this information, just as advice to the consumer?

Rebecca T. Partington:

As a matter of fact, that happened immediately before this case came up to this Court.

One of the newspapers in this State did a story and most of it was focused on the difference in prices among liquor stores and they did, as part of that story, as part of that news piece, run prices, and our liquor control administrator would not find that that was a violation, because that is not proposing a commercial transaction.

I realize there’s a line there, but I think that was easy to distinguish.

They were discussing the difference between prices in Rhode Island and Massachusetts.

Anthony M. Kennedy:

If there were widespread exchange of price information in some of the media that I propose, and some of the methods that I propose, it would seem to me the State’s interest would be the same.

I mean, this undercuts your interest.

You don’t want people to know about price changes because that might increase consumption.

Rebecca T. Partington:

I suppose that if it rose to the level of an advertizement, or if it appeared that some of the liquor retailers were attempting to subvert the advertizement requirement, or the advertizing ban, then the State could take some action, but this… the example that you’ve given me, the facts that happened in the State of Rhode Island were so very clearly part of a newsworthy event that was taking place that the ban did not apply.

Anthony M. Kennedy:

Suppose the liquor salesman says, please tell your neighbor about our low prices.

Could the State prohibit him from doing that?

Rebecca T. Partington:

Not under the ban as it exists today, I don’t–

Anthony M. Kennedy:

Constitutionally could the State prohibit that?

Rebecca T. Partington:

–Yes, I believe they could.

Rebecca T. Partington:

Under the Twenty First Amendment, I think the State has a separate basis for dealing with all manner of discussion involving alcoholic beverages.

Ruth Bader Ginsburg:

If we had no Twenty First Amendment–

Rebecca T. Partington:

If we had no Twenty First Amendment a State still has considerable police powers and has always had considerable police powers in dealing with alcoholic beverages.

Since the mid 1800’s this Nation’s history has always given the State considerable police power to regulate the sales of alcoholic beverages.

Antonin Scalia:

–More than toothpaste?

Rebecca T. Partington:

More than toothpaste, yes.

Antonin Scalia:

Is that right?

That’s in the Constitution?

Rebecca T. Partington:

Oh, I’m sorry–

Antonin Scalia:

I mean apart from the Twenty First Amendment.

Rebecca T. Partington:

–The Twenty First Amendment gives the State, this Court has said, something more than the ordinary police power, and–

Antonin Scalia:

With respect to commerce.

Rebecca T. Partington:

–With–

Antonin Scalia:

With respect to the demands of the Commerce Clause of the Constitution it does, but where in it does it say that it somehow increases the State’s authority under the First Amendment, or in the face of the First Amendment.

Rebecca T. Partington:

–The Court has repeatedly, in cases not dealing with commercial speech, and this is the… from what I can tell the Court’s first commercial speech State Twenty First Amendment case in recent years.

The Twenty First Amendment, acting together with… and the State would make an argument that the Twenty First Amendment together with the fact that alcoholic beverages are involved here, and they are not one argument but two, gives the State considerable regulatory power here and assists the State in meeting the Central Hudson test.

Ruth Bader Ginsburg:

So there are… if we take Craig v. Boren as our model, then I would think there’s not too much to your Twenty First Amendment, but I thought you were relying most heavily on the Posadas case saying, well, Twenty First Amendment, we could put in as a weight, or make weight.

Rebecca T. Partington:

Absolutely, and that takes me back to applying the Central Hudson test, and I think in answer to a couple of the questions I heard earlier, it is not a question of who presents the most evidence, it’s a question of could the State and can the State reasonably believe that by banning price advertizing the substantial and legitimate State interests will be advanced?

David H. Souter:

Well, how do you get over the requirement which I thought was expressed in Rubin and Coors and in fact the indication has got to be that the State’s interest is… I think the word was materially advanced?

It seems to me that that, if that means anything it requires something more than a reasonable basis for the State’s belief that it would be advanced.

Rebecca T. Partington:

Well, I read that requirement in Rubin, which, by the way, suggested a marketing ban on the… regarding the strength of beer as a feasible alternative to the labeling ban… I read Rubin and I read that together with the Florida Bar case, which cautioned that in every case we do not have to have a mountain of scientific evidence.

David H. Souter:

Well, we’re not talking, I think, about quantity of evidence.

We’re just talking about the quality of evidence, and the evidence has got to indicate, Rubin says, that there is a material advancement of the State’s interest.

Rebecca T. Partington:

Correct.

David H. Souter:

And how do you get around that, and I guess more specifically, how is that indicated on this record?

Rebecca T. Partington:

First of all, the Florida Bar case said that you can rest a reasonable belief on data, studies, history, and common sense.

We have all of that present in this case.

We have many things–

David H. Souter:

By the way, do we make that determination, that in fact the advancement, if it is advancement, is to a material and substantial degree?

Is that a judgment for this Court to make?

Rebecca T. Partington:

–I think that… not under a clearly erroneous standard, Your Honor.

David H. Souter:

Well, no, but we’re dealing with a First Amendment issue.

Do you think we have an independent evidentiary weighing function because there is a First Amendment speech issue here?

Rebecca T. Partington:

I think that it goes back to, and the State would argue that it has to be a reasonable belief on the State’s part–

David H. Souter:

No, no–

Rebecca T. Partington:

–that it would be advanced.

David H. Souter:

–Could I just call you back, though, to my last question?

In making that determination, does this Court have an independent function in weighing the evidence because there is a First Amendment issue involved?

Rebecca T. Partington:

Not to weigh the evidence, but to see if the State put forth some evidence that could support the reasonable belief, but in–

David H. Souter:

Well, that… we have said in noncommercial speech cases that in fact the Court, and any court dealing with a First Amendment speech issue, has an obligation to evaluate the evidence independently.

Now, do we have that obligation here?

That’s something quite different from saying there is a sufficient basis in the evidence from which a lower court could have concluded whatever it concluded.

It’s an independent role in evidentiary evaluation.

Do we have that in this case?

Rebecca T. Partington:

–Correct, and I think the Fifth–

David H. Souter:

We do?

Rebecca T. Partington:

–The Fifth Circuit in the Dunagin case–

David H. Souter:

No, but is your answer that we do have that?

Rebecca T. Partington:

–The appellate courts in a First… yes, sir, that the appellate courts in a First Amendment case have a special role not to review under a clearly erroneous standard, but to see whether a reasonable basis exists, and they made the distinction… the Fifth Circuit and the Fourth Circuit recently in the Anheuser Busch case made the determination between the adjudicative and the legislative facts, and that is the State’s argument here today that as long as there is a reasonable belief, and we are not limited to our record below–

David H. Souter:

No, but hasn’t this Court got to have the reasonable belief, if we are going to… or be justified in having the reasonable belief, if we are going to engage in that independent evidentiary evaluation?

Rebecca T. Partington:

–Yes, and I would like to tell–

David H. Souter:

Okay, now, why should we have that reasonable belief?

Rebecca T. Partington:

–All right.

I would like to point you to several factors in this case that support that reasonable belief.

In addition to the testimony and the data, the studies the State put forward which were based on generally accepted and well established economic principles–

John Paul Stevens:

On that point, could I just interrupt you with one problem that’s running through my mind.

Let’s assume that when you raise prices, there will be less consumption.

That seems fairly common sense.

But I gather that… assume that the consumers in the State, 85 percent of them are perfectly temperate, and maybe 10 or 15 percent are abusive drinkers, and you’re concerned about the price to those who are not temperate.

Do you think that raising the price to the 85 percent who may be perfectly temperate, who may not consume any more, keeping the price up, furthers the State interest?

Rebecca T. Partington:

–I think that the testimony we have is that consumption generally–

John Paul Stevens:

Right, generally it would be affected.

Let’s assume that’s true, but how do you know… how do you balance, in your figuring out what is the appropriate thing to do, the impact on those who will remain temperate, who presumably are most of the consumers, and the minority who might be affected by it, and how do you know you’re being successful with the minority?

Rebecca T. Partington:

–I think that that’s a point the experts made here.

You cannot study this subject in that detail.

You cannot know exactly which part of your society that you’re affecting.

All of the experts said this was a very difficult area to study, and that the generally accepted economic principles apply to alcohol.

We have to look at it in a much larger picture if consumption is–

John Paul Stevens:

What if the evidence showed there were only 5 percent were intemperate drinkers, would that make any difference, that you make the 95 percent pay more anyway because you’re so concerned about the 5 percent?

Rebecca T. Partington:

–I think that that sort of figure would go to the reasonableness of the legislature’s belief.

John Paul Stevens:

And what do we know about the figure in this case?

Rebecca T. Partington:

We do not know, because all of our experts said that those figures would be impossible to compile, so it comes down to whose decision should it be to make this social policy?

Should it be the legislators of the State of Rhode Island or the liquor retailers in the State of Rhode Island?

Antonin Scalia:

Well, making the 95 percent pay more is no problem.

The State can do that without any difficulty, can’t it?

I mean, it could set minimum prices.

Rebecca T. Partington:

I don’t think that minimum prices–

Antonin Scalia:

And that would make the 95 percent pay more, and there would be no problem at all.

You can always make people pay more.

The only thing you can’t do is withhold information from them in some circumstances.

Rebecca T. Partington:

–And in addressing Mr. Lawson’s… the narrowness issue and the minimum price problems, I don’t think, and I disagree that the minimum price would be as effective as this.

Number 1, there is a constitutional problem in minimum retail prices, and this Court has previously held that.

Sandra Day O’Connor:

A constitutional problem?

Rebecca T. Partington:

This Court, I believe Mid–

Sandra Day O’Connor:

You think the State could not set some kind of minimum prices for alcohol?

Rebecca T. Partington:

–I think that the schemes that have been propounded by States in the past have had constitutional problems, and also they don’t–

David H. Souter:

What happened to the vigor of the Twenty First Amendment?

A moment ago you were saying it was pretty good against the First Amendment, but suddenly it’s weakened.

Rebecca T. Partington:

–I don’t think so.

I think that the minimum retail prices, and to answer a couple of questions that came during the petitioner’s argument, minimum retail prices simply would not work as well in this case.

Rebecca T. Partington:

They–

David H. Souter:

Okay, but I thought… it was the constitutional problems that you alluded to that I was alluding to.

If the Twenty First Amendment is good against speech, why isn’t it good against these constitutional problems?

Rebecca T. Partington:

–If I understand your question correctly, why wouldn’t a–

David H. Souter:

Why do you have constitutional problems in setting a liquor price when you’ve got the Twenty First Amendment?

Rebecca T. Partington:

–Historically, in the minimum retail price area the States have been affecting prices in other States and other areas of the country, and that has been held to be improper and unacceptable even with the Twenty First Amendment.

I am not arguing that the Twenty First Amendment is absolute or that it trumps the First Amendment in this case.

Ruth Bader Ginsburg:

If our concern is, how do we keep the price high, let’s substitute for a tax.

I don’t think there’s any problem with the constitutional problem with a State putting a higher tax on liquor.

That would up the price and it wouldn’t restrict speech.

Rebecca T. Partington:

And it wouldn’t work as well, because it wouldn’t remove the artificial inducement to consume that an advertizement constitutes.

The artificial inducement–

David H. Souter:

But I thought the artificial inducement was in the price, in the capacity to advertize low prices, not the capacity to advertize as such.

Rebecca T. Partington:

–It is the State’s position, and it is a reasonable belief that would support this ban, that those citizens who are already so inclined to consume will purchase no matter what.

David H. Souter:

Then it seems to me your argument is showing that the State can perfectly well ban all advertizing of liquor.

You’d take it all the way.

Rebecca T. Partington:

Oh, I absolutely think–

David H. Souter:

Okay.

Rebecca T. Partington:

–that a State can… a total advertizing ban would be constitutional.

Antonin Scalia:

Mrs. Partington, can I… I’m not sure what the scope of the concession that you made to Justice Souter earlier was.

Do I take it that you acknowledge that with respect to the First Amendment, as opposed to other constitutional… claimed constitutional violations, we have some special authority to make factual determinations on our own and disregard factual determinations reasonably made… reasonably, but we disagree with it, made by State legislatures, for example?

Rebecca T. Partington:

I think that–

Antonin Scalia:

Is the First Amendment different from other amendments in–

Rebecca T. Partington:

–The rule as I understand it is, and the First Amendment has been afforded a lot of special consideration by this Court, and again, set out in the Dunagin footnote better than I’m saying it today, obviously, is that appellate courts in a First Amendment case bear a special role in reviewing the lower courts.

You’re not bound by their evidence.

Antonin Scalia:

–Why is that?

I mean, more than other constitutional… let’s say a violation of equal protection, or discrimination against someone because of race.

Rebecca T. Partington:

And I think in Craig–

Antonin Scalia:

First Amendment’s different.

We would not accept judgments of legislatures in that area that we would with respect to the other matters.

Rebecca T. Partington:

–Well, I think in the past this Court has accepted–

Antonin Scalia:

Sort of a privileged amendment, is it… I mean, the First Amendment?

All the others are disfavored.

I don’t understand–

Rebecca T. Partington:

–I think this Court has always held a special place for the First Amendment in the law–

Antonin Scalia:

–In our hearts?

Rebecca T. Partington:

–that I have read it, perhaps other amendments are entitled to a great deal of deference.

William H. Rehnquist:

How about in commercial speech cases?

Have we shown the same deference to the First Amendment as we have in noncommercial speech cases?

Rebecca T. Partington:

No, and I think that’s just the point about the commercial speech doctrine, and that is, the State’s position is that it is not as protected because it is proposing a commercial transaction, in this case a transaction, the sale of alcoholic beverages, a highly regulated commodity.

John Paul Stevens:

May I ask this general question in terms of factual basis for the statute?

What if the records show… and I’m not going to suggest it does… that the real motivation for the statute was to protect the competitive position of the small retailer, and to enable price fixing to succeed without these discounters cutting prices all the time.

That’s really what motivated it, but it also has this additional support that you can say it tends to reduce consumption.

Would that affect the constitutional analysis at all?

Rebecca T. Partington:

I think as long as the State’s asserted interest in this case is substantial, and is advanced, and the State could reasonably have believed it was advanced, the peripheral effect on the distribution scheme and on the small retailers and the large retailers and their relationship–

John Paul Stevens:

No, I’m not saying that’s the peripheral effect, I’m assuming from my hypothetical, and I guess it’s alleged in one count of the complaint, but that fell by the wayside somewhere, that the real background to the statute is, it’s just old fashioned price fixing.

If that were proved and assumed to be the fact, would that affect the constitutional analysis?

Rebecca T. Partington:

–I think it would under the substantial interest test, or the substantial interest prong of Central Hudson, could protection of the smaller retailers be a substantial interest.

Fortunately, we don’t have to determine that here.

The substantial interest has been stipulated to.

Stephen G. Breyer:

That’s just the question that’s bothering me.

Suppose that you were… I understand your argument to be, look, banning the price advertizing is better than the tax, because when you advertize prices people run out and buy the thing in a way they don’t with the tax, and of course price controls require an elaborate administrative mechanism and bring a host of problems of their own.

So suppose I accept that, and say, okay, you have a plausible justification here.

Suppose that’s what the Constitution held.

Then could the small broccoli producers, or the small… I don’t know, the small table producers, or the distributors, or virtually any product under the Sun that could create a plausible reason why the product has some negative aspects to it, do exactly the same thing and create price advertizing bans against dozens of products?

I mean, is your product special, or if we allow the ban to be constitutional here, is the Court also saying that price advertizing could be stopped across the board in any product where there is a plausible argument that too much use of the product by a group would be harmful?

That’s what’s worrying me.

Is this a special product, or if this product you can restrict advertizing, can they do the same thing with plausible reasons… and of course lots of producers like to stop advertizing, if they can agree to do it… across the board, or is your product special, and if so, how?

Rebecca T. Partington:

I think our product is quite special because of this Nation’s regulatory history of alcoholic beverages.

If some other product were to have the history that alcoholic beverages has, including a total prohibition of sales of that product in the Nation for a period of years–

Anthony M. Kennedy:

How about bullets and firearms?

Could the State impose price advertizing restrictions on those?

Rebecca T. Partington:

–I think if we met the Central Hudson test we would then have to create more of a legislative history in this case than we had to in the gun case.

In the liquor case, you have a history prepared for us.

It’s out there.

It’s been established by–

Anthony M. Kennedy:

Of course, part of the history in the liquor case is that the mom and pop stores want this legislation every badly.

Rebecca T. Partington:

–They intervened on the side of the State, correct.

The State’s interest is in the constitutionality of this law, and we believe it is, because it is a reasonable belief, and beforehand I was setting out those factors that supported the State’s reasonable belief.

Stephen G. Breyer:

And food products that, eaten in too great an amount, cause diseases, or could lead to overweight, or–

Rebecca T. Partington:

For instance, like red meat.

Stephen G. Breyer:

–Or… I don’t… anything that’s carcinogenic in large doses to small animals.

I mean, I’m looking for the… is there a stopping point, or is this to authorize lots of State rules that would in effect inhibit price competition?

Rebecca T. Partington:

I think at this point in history, alcoholic beverages stand in a unique position, because of the history and because it’s the only grant of power to the States, the Twenty First Amendment, to regulate–

Sandra Day O’Connor:

But doesn’t that just give States more power within the Interstate Commerce Clause area?

Has this Court ever said that the Twenty First Amendment gives the States more power to interfere with the First Amendment?

Rebecca T. Partington:

–No, you have not.

However, in the Larkin case, which was a First Amendment case, not a free speech case, you did state that in the area of… that Larkin was concerned with, the State’s regulation of alcoholic beverages deserves great deference.

And I would say at this point the Twenty First and First Amendments are both part of the same Constitution, as was said in the Craig v. Boren case, and a reasonable accommodation was made here that is sufficiently narrow, I think–

Antonin Scalia:

I don’t see what the Twenty… the Twenty First Amendment seems to me entirely irrelevant.

The only operative provision here is, the transportation or importation into any State for delivery or use therein of intoxicating liquors in violation of the laws thereof is hereby prohibited.

Rebecca T. Partington:

–Well, as I was saying–

Antonin Scalia:

I mean, I don’t see what power that gives to the States.

It just says that it’s unlawful to bring into the State something that’s against the State’s alcohol laws, but they’re not given any new powers over alcohol.

Rebecca T. Partington:

–And I think it might be a mistake to limit my position to saying the Twenty First Amendment gives us power.

It gives a lot more.

It… the Twenty First Amendment should weave in and out of the Central Hudson test, and the alcoholic beverages should weave in and out of the Central Hudson test, again, as providing a history–

Sandra Day O’Connor:

I don’t think this Court has ever said we weave the Twenty First Amendment in and out of some First Amendment analysis.

I think that would be a disaster.

Can you win your case if the Twenty First Amendment has nothing to do with it?

Rebecca T. Partington:

–I believe so, Your Honor.

I believe the Central Hudson test has been met by the State in this case irrespective of–

Sandra Day O’Connor:

What do you say today is the State’s ultimate interest here, to reduce consumption of alcohol?

Rebecca T. Partington:

–The State’s asserted interest in the statute is the promotion of temperance and the reasonable control in the traffic of alcoholic beverages.

Sandra Day O’Connor:

Do you think it likely that a legislature, that the Rhode Island legislature would enact direct price control or raise taxes to do that, or does it have to depend on this very indirect way of achieving that goal?

Rebecca T. Partington:

Well, I would have to disagree with the characterization of this as indirect, because I think as the Fourth Circuit recently said in the Anheuser Busch case, and this Court said, marketing and advertizing are a direct link to consumption.

And in this case, and as taught in prior cases and decisions by this Court beginning… I would refer to the Bates case, where this Court says that price advertizing often leads to dramatically lower prices for the consumer, and using the history of alcoholic beverages, those opinions, our testimony–

Ruth Bader Ginsburg:

But how far… how many commodities has that spread to?

You were asked about guns.

What about butter?

What is the line between what the State can discourage and what it can’t?

Rebecca T. Partington:

–I think the line would be those… from my cases, alcoholic beverages is unique, because of, again, the regulatory history of this country and the social problems caused by alcoholic beverages, and the focus that the Constitution has had on alcoholic beverages… two constitutional amendments.

This Court has mentioned other items and goods as, and we’ve discussed it in this case, as vices, and I think that–

Antonin Scalia:

Well, but surely that’s up to the people of the State.

I mean, the people of one State may really be dead against drinking too much, and people of another State may be vegetarians and they’re really dead against people eating red meat.

Isn’t that a matter of policy that the citizens of a State are able to adopt on their own, and what this State can do because it hates alcohol, surely another State should be able to do because it hates red meat.

That’s up to the citizens of the State, isn’t it?

I mean, is there something up in the sky that says alcohol has to be hated and red meat doesn’t?

Rebecca T. Partington:

–I think the history of alcoholic beverage regulation and the general police powers, I think–

David H. Souter:

If that’s so, if we accept the uniqueness argument… and I think you can make a very good uniqueness argument here.

Gambling is in a different category because the States are going on a binge of supporting gambling, they’re running it.

Red meat does not seem to have found very much disfavor, and so on and so on.

I think you’ve got a good argument for uniqueness.

If we buy the uniqueness argument, are we in effect saying that Posadas was incorrectly decided, so that we would have to overrule… in effect we would be implicitly overruling that?

Rebecca T. Partington:

–No.

I think Posadas explicitly found that since the State, or since Puerto Rico could ban gambling altogether, the restriction on speech was permissible as long as the Central Hudson test–

David H. Souter:

Then why don’t you take that as your argument here because Rhode Island could, in fact, preclude the importation and sale of any liquor whatsoever, it therefore can regulate its advertizing?

I mean, if the Posadas argument is good, why isn’t it good for you?

Rebecca T. Partington:

–That has been one of the arguments of the State up until this point.

However, footnote 2 in Rubin convinced me that perhaps to set out to prove that the Central Hudson test had been met was perhaps the wisest and simplest way to go about this case, and the State believes that the Central Hudson test has been met.

Rebecca T. Partington:

We also believe that the greater power to ban does include the lesser, but that we need not reach that point in this case today.

Anthony M. Kennedy:

As part of your brief you say that price advertizing is the least informative speech concerning a product.

If I were writing the opinion for the Court sustaining your position, I think that would be a most unconvincing beginning.

Rebecca T. Partington:

Let me try to explain what I was–

Anthony M. Kennedy:

I was curious to know where you got that.

Rebecca T. Partington:

–What I was trying to say was that it doesn’t tell you about the product itself.

It doesn’t tell you what’s contained in that bottle, or in that can, as did the information in Rubin.

Rubin involved information about the product itself, and price advertizing–

Anthony M. Kennedy:

So you were not talking about price information on a scale of priorities of interest of the consumers.

Rebecca T. Partington:

–No.

I think that would be a mistake.

William H. Rehnquist:

But if you say a fifth of Gilbey’s Gin, you know what’s in there.

[Laughter]

Rebecca T. Partington:

Some people might.

As far as the quality of the product, the amount of alcohol in the product, the smoothness, the taste, no.

That is different from price.

Price does not tell you how good a product it is, how long it was in the barrel, et cetera.

I think that’s what I was trying to convey by that to distinguish the information in this case from the Rubin case.

Anthony M. Kennedy:

You were not trying to convey the fact that price is not of vital interest to consumers of most products.

Rebecca T. Partington:

Absolutely not, and that takes us back to the reason and the basis for this statute, and that is what the testimony is here.

Although the advertizing is questionable, the effect of price is not.

Thank you.

William H. Rehnquist:

Thank you, Ms. Partington.

Mr. Lawson, you have 4 minutes remaining.

Evan T. Lawson:

I will waive the rebuttal.

John Paul Stevens:

May I ask you one question, though?

The Eleventh Amendment always interested me, and in this case I notice the State was now a party but was not originally.

How did the State get to be a party in this case?

Evan T. Lawson:

The State voluntarily stepped in in place of its administrator.

John Paul Stevens:

I see.

Evan T. Lawson:

I think that the Eleventh Amendment would not be a problem where the State voluntarily–

John Paul Stevens:

And at what stage of the proceedings did they become a party?

Evan T. Lawson:

–Sort of between the decision of the district court and the case reaching the First Circuit.

John Paul Stevens:

The appeal was taken in the name of the State, in other words.

Evan T. Lawson:

I think it was originally taken in the name of the liquor control administrator, but my memory of this is somewhat dim, but what happened is, I believe–

John Paul Stevens:

They voluntarily appeared rather than your bringing them in, is what you’re saying.

Evan T. Lawson:

–No, I definitely didn’t bring them in.

They came in and the State in fact… what happened was, I think the question of the State coming in came about at the same time that a stay was being sought of the decision of the district court pending appeal.

John Paul Stevens:

Thank you.

William H. Rehnquist:

Thank you, Mr. Lawson.

The case is submitted.