JUSTICE STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, VII, and VIII, an opinion with respect to Parts III and V, in which JUSTICE KENNEDY, JUSTICE SOUTER, and JUSTICE GINSBURG join, an opinion with respect to Part VI, in which JUSTICE KENNEDY, JUSTICE THOMAS, and JUSTICE GINSBURG join, and an opinion with respect to Part IV, in which JUSTICE KENNEDY and JUSTICE GINSBURG join.
Last Term we held that a federal law abridging a brewer's right to provide
the public with accurate information about the alcoholic content of malt
beverages is unconstitutional. We now hold that Rhode Island's statutory
prohibition against advertisements that provide the public with accurate
information about retail prices of alcoholic beverages is also invalid.
Our holding rests on the conclusion that such an advertising ban is an
abridgment of speech protected by the First Amendment and that it is not
shielded from constitutional scrutiny by the Twenty-first Amendment.
Complaints from competitors about an advertisement placed by 44 Liquormart in a Rhode Island newspaper in 1991 generated enforcement proceedings that in turn led to the initiation of this litigation. The advertisement did not state the price of any alcoholic beverages. Indeed, it noted that "State law prohibits advertising liquor prices." The ad did, however, state the low prices at which peanuts, potato chips, and Schweppes mixers were being offered, identify various brands of packaged liquor, and include the word "WOW" in large letters next to pictures of vodka and rum bottles. Based on the conclusion that the implied reference to bargain prices for liquor violated the statutory ban on price advertising, the Rhode Island Liquor Control Administrator assessed a $400 fine.
After paying the fine, 44 Liquormart, joined by Peoples, filed this
action against the administrator in the Federal District Court seeking
a declaratory judgment that the two statutes and the administrator's implementing
regulations violate the First Amendment and other provisions of federal
law. The Rhode Island Liquor Stores Association was allowed to intervene
as a defendant and in due course the State of Rhode Island replaced the
administrator as the principal defendant. The parties stipulated that the
price advertising ban is vigorously enforced, that Rhode Island permits
"all advertising of alcoholic beverages excepting references to price outside
the licensed premises," and that petitioners' proposed ads do not concern
an illegal activity and presumably would not be false or misleading....
The State argues that the price advertising prohibition should nevertheless be upheld because it directly advances the State's substantial interest in promoting temperance, and because it is no more extensive than necessary....
Even under the less than strict standard that generally applies in commercial
speech cases, the State has failed to establish a "reasonable fit" between
speech and its temperance goal.... It necessarily follows that the price
advertising ban cannot survive the more stringent constitutional review
appropriate for the complete suppression of truthful, nonmisleading commercial
As is clear, the text of the Twenty-first Amendment supports the view that, while it grants the States authority over commerce that might otherwise be reserved to the Federal Government, it places no limit whatsoever on other constitutional provisions. Nevertheless, Rhode Island argues, and the Court of Appeals agreed, that in this case the Twenty-first Amendment tilts the First Amendment analysis in the State's favor.
In reaching its conclusion, the Court of Appeals relied on our decision in California v. LaRue (1972). In LaRue, five Members of the Court relied on the Twenty-first Amendment to buttress the conclusion that the First Amendment did not invalidate California's prohibition of certain grossly sexual exhibitions in premises licensed to serve alcoholic beverages. Specifically, the opinion stated that the Twenty-first Amendment required that the prohibition be given an added presumption in favor of its validity. We are now persuaded that the Court's analysis in LaRue would have led to precisely the same result if it had placed no reliance on the Twenty-first Amendment.
Entirely apart from the Twenty-first Amendment, the State has ample power to prohibit the sale of alcoholic beverages in inappropriate locations. Moreover, in subsequent cases the Court has recognized that the States' inherent police powers provide ample authority to restrict the kind of "bacchanalian revelries" described in the LaRue opinion regardless of whether alcoholic beverages are involved. As we recently noted: "LaRue did not involve commercial speech about alcohol, but instead concerned the regulation of nude dancing in places where alcohol was served."
Without questioning the holding in LaRue, we now disavow its reasoning insofar as it relied on the Twenty-first Amendment. As we explained in a case decided more than a decade after LaRue, although the Twenty-first Amendment limits the effect of the dormant Commerce Clause on a State's regulatory power over the delivery or use of intoxicating beverages within its borders, "the Amendment does not license the States to ignore their obligations under other provisions of the Constitution." That general conclusion reflects our specific holdings that the Twenty-first Amendment does not in any way diminish the force of the Supremacy Clause, the Establishment Clause, or the Equal Protection Clause. We see no reason why the First Amendment should not also be included in that list. Accordingly, we now hold that the Twenty-first Amendment does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment. The Twenty-first Amendment, therefore, cannot save Rhode Island's ban on liquor price advertising....
Exploring Constitutional Conflicts