The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_1631/93_1631.zc

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SUPREME COURT OF THE UNITED STATES
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No. 93-1631
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ROBERT E. RUBIN, SECRETARY OF THE
TREASURY, PETITIONER v. COORS
BREWING COMPANY
on writ of certiorari to the united states court
of appeals for the tenth circuit
[April 19, 1995]

  Justice Stevens, concurring in the judgment.
  Although I agree with the Court's persuasive demon-
stration that this statute does not serve the Govern-
ment'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 commer-
cial speech than other speech has any application to this
unusual statute.
  In my opinion the -commercial speech doctrine- is
unsuited to this case, because the Federal Alcohol
Administration 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, ___ U. S. ___ (1995) (slip op., at
7); 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 State 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 might not make
voluntarily.  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 the First Amend-
ment: 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 so-called -strength wars-
would justify disclosure requirements explaining the
risks and predictable harms associated with the con-
sumption of alcoholic beverages.  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 ap-
proach 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 Amend-
ment.  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 deter-
mining when the government may abridge such expres-
sion.  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).
  The case before us aptly demonstrates the artificiality
of a rigid commercial/noncommercial distinction.  The
speech at issue here is an unadorned, accurate state-
ment, on the label of a bottle of beer, of the alcohol
content of the beverage contained therein.  This, the
majority finds, ante, at 4-5, is -commercial speech.-  The
majority does not explain why the words -4.73% alcohol
by volume- 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.  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.
  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 poten-
tial to mislead.  See Virginia 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 Cincin-
nati v. Discovery Network, Inc., 507 U. S. ___, ___-___
(1993) (slip op., at 15) (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 v. Sullivan, 376 U. S. 254 (1964), the spe-
cial character of commercial expression justifies restric-
tions 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 some-
times conflicting sources under the pressure of pub-
lication deadlines, the commercial advertiser gener-
ally 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 prod-
uct and its price substantially eliminates any dan-
ger that government regulation of false or mislead-
ing 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.'-  Virginia
Pharmacy, 425 U. S., at 777-778 (Stewart, J., con-
curring), quoting Gertz v. Robert Welch, Inc., 418
U. S., at 341.

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 conse-
quences of false commercial speech can be particularly
severe: investors may lose their savings, 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.
   In this case, the Government has not identified a
sufficient interest in suppressing the truthful, un-
adorned, 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 consum-
ers or that they provide specific information for compar-
ative purposes) in order to prevent brewers from mis-
leading 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 constitu-
tional 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 infor-
mation 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 whatso-
ever in the Government's assertion that an interest in
restraining competition among brewers to satisfy con-
sumer demand for stronger beverages justifies a statu-
tory 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-in-
formed 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 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. ___, ___-___ (1993)
(slip op., at 2-3) (Stevens, J., dissenting); Posadas de
Puerto Rico Associates v. Tourism Co. of Puerto Rico,
478 U. S. 328, 358 (1986) (Brennan, J., dissenting).
  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 -exact-
ing scrutiny- or some other standard.  If Congress is
concerned about the potential for increases in the alco-
hol 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 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 compet-
ing products.
  In my opinion, this statute is unconstitutional because,
regardless of the standard of review, the First Amend-
ment mandates rejection of the Government's proffered
justification for this restriction.  Although some regula-
tions 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.