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BAN ON LIQUOR ADS MAY BE TOSSED

People may have chuckled at the peculiarities of Utah liquor laws when Salt Palace officials were forced in 1990 to cover up beer advertising. But it may be those who sell alcohol who have the last laugh.

The U.S. Supreme Court ruled recently that state prohibitions on truthful liquor advertising - and Utah has such a ban - violate free-speech provisions guaranteed by the First Amendment of the U.S. Constitution.Could that mean liquor ads on Utah billboards, in magazines and newspapers and in arenas like the Delta Center would again become part of the Utah landscape?

"I think (the ruling) raises serious doubts about the constitutionality of Utah's restrictions on alcoholic beverage advertising," said First Amendment attorney Jeff Hunt. "State officials are worried about it, and they ought to be."

Under Utah law, "the advertising or use of any means or media to induce persons to buy liquor is prohibited." The stated purpose of the ban is "to reduce solicitation of such beverages to an actual minimum."

It is that blanket ban that has many believing that Utah's law, when it is challenged - and it will certainly be challenged - will also be found unconstitutional.

In fact, there are striking similarities between Utah laws banning alcohol advertising and those in Rhode Island that were held unconstitutional by the top court.

But the May 13 ruling goes far beyond whether or not Rhode Island had the authority to prohibit certain forms of alcohol advertising. It "really changed the whole landscape in the area of commercial free speech," Hunt said.

"I like the fact the decision is premised on the idea that the public can make intelligent choices when given correct information, and that it is the wrong thing to do to suppress that kind of speech," he added.

Similar to Utah, Rhode Island had maintained that a ban on advertising liquor prices was a mechanism to keep prices high and consumption low, keeping with the state's policy of promoting temperance. The state also argued that the 21st Amendment gave states wide latitude to regulate commerce and use of alcohol, a claim Utah officials have long made in justifying Utah's ban on alcohol advertising.

But the Supreme Court ruled the 21st Amendment does not supersede the First Amendment and "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."

Utah's advertising community hailed the ruling as a validation of its long-held position that commercial speech enjoys the same constitutional protection as other forms of speech.

"The advertising community stands together on the freedom-of-speech aspects," said Susen Sawatski, publisher of AdNews, a local advertising journal. "It is plain and simple and straightforward. There are (Utah) agencies that would never accept (liquor and tobacco accounts) for moral reasons, but even they believe commercial speech should enjoy the same freedoms as other forms of speech."

Officials with the Utah Department of Alcoholic Beverage Control are unusually tight-lipped about whether the Supreme Court ruling will invalidate Utah's advertising ban.

"I am not going to speculate on whether Utah's law is unconstitutional," said Earl Dorius, manager of the department's licensing and compliance division. "All I can say is we have made copies of the opinions for all the commissioners, and we have been in contact with the attorney general for a legal opinion."

But another DABC official, who asked not to be identified, said the court ruling leaves the state little legal ground to stand on.

"If it goes to court, the judge is going to look at us and say, `What part of (the decision) did you not understand?' The decision spelled it out pretty clearly," he said.

According to the decision, complete bans are "particularly dangerous because they all but foreclose alternative means of disseminating certain information," the court held. Furthermore, such bans serve to obscure "an underlying governmental policy that could be implemented without regulating speech."

The court found the state could have promoted temperance through means other than restricting free speech, things like raising alcohol taxes, imposing minimum prices on alcohol and public education campaigns.

"The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good," the justices wrote.

They further chastised states that keep "legal users of a product or service ignorant in order to manipulate their choices in the marketplace."

The justices cited an earlier ruling that "so long as we preserve a predominantly free-enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well-informed. To this end, the free flow of commercial information is indispensable."

The court further explained that a state's "paternalistic assumption that the public will use truthful, non-misleading commercial information unwisely cannot justify a decision to repress it."

What are the implications of the Supreme Court ruling? One justice wrote that the "inevitable result" of the court's ruling will be that "all or most of such advertising restrictions must be struck down."

That would be just fine with many owners of Utah bars, taverns, private clubs and restaurants who have long complained about the restrictive and confusing nature of the Utah ban. For example, private clubs can advertise musical acts and food but cannot even mention the word "drink" in their ads, and they must include disclaimers that the ad was for the benefit of club members only.

Restaurants can mention in print ads that they are licensed DABC liquor outlets, but the law requires the statements to be in a specified small type face, regardless of the size of the restaurant ad.

The frustration of business owners has them looking closer at the Supreme Court ruling for relief.

"We're not going to raise a lot of h--- until we have had a chance to digest it," said Kent Knowley, president of the Utah Hospitality Association and owner of the Port O Call private club. "It is in front of our counsel now, and we will probably get opinions from two or three other attorneys. We don't want to make waves unless there is something to make waves about."