I suspect our founding fathers were not focused on ads for discount drinks when they enacted the First Amendment. But once again, the First Amendment rears its head in unusual places.
The state of Missouri had liquor regulations that prohibited ads for discounts on drinks outside of the bars offering the discounts. So under the regulations, a bar could hang signs offering half priced drink specials, but it couldn’t advertise those specials on billboards or radio or TV ads. A group of Missouri broadcasters challenged the regulations under the First Amendment.
The Eighth Circuit Court of Appeals recently handed down its decision agreeing with the broadcasters. The court noted that a regulation can curtail commercial speech only if the state can demonstrate a substantial governmental interest, that the challenged law directly advances the government’s asserted interest and that the law is no more extensive than necessary to further the government’s interest.
Missouri argued that it had a substantial interest in reducing overconsumption and underage drinking. The Court didn’t dwell on whether that interest was truly substantial, because it didn’t need to. Even if it was a substantial interest, Missouri couldn’t satisfy the other parts of the test. As the court noted, Missouri “offered no empirical or statistical evidence, study, or expert opinion demonstrating how these regulations further protected the State’s interest.” That is, Missouri couldn’t show that these kind of advertising restrictions have any impact on reducing binge or underage drinking. That is kind of ironic considering that Missouri is the “show me” state after all.
The court also noted that if Missouri was truly concerned with reducing drinking it could have enacted any number of measures that would not have impacted speech – “ increasing its alcohol tax, promoting educational programs, banning sales of discounted or below-cost alcohol, or enforcing penalties” were all examples the court cited.
It doesn’t seem like too much to ask for a state to actually demonstrate that its laws really accomplish what they are intended to accomplish. But it is amazing how often they can’t do so. The Missouri case is the latest example.