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TWO AD CASES WILL GAUGE NEW JUSTICE HIGH COURT WEIGHS COORS CASE

By Published on .

WASHINGTON-A pair of advertising cases before the U.S. Supreme Court should provide insight into how much of an impact Justice Harry Blackmun's retirement will have on commercial speech protection.

Justice Blackmun, the court's main champion of commercial speech, retired in June and was succeeded by Stephen Breyer, an apparent moderate. While serving as an appeals court judge in Boston, Justice Breyer made no rulings on commercial speech cases.

The most significant commercial speech case on the court's 1994-95 agenda pits a brewer against the federal government in a test of whether the government knows what's best for the consumer. The freedom of speech case began in 1987 when the Bureau of Alcohol, Tobacco & Firearms refused to let Coors Brewing Co. put alcohol content statements on malt beverage labels and ads, and Coors filed suit.

In 1993, the 10th U.S. Circuit Court of Appeals affirmed a lower court ruling allowing alcohol content statements on labels, but the federal government appealed.

The ban on alcohol content statements dates to the 1935 Federal Alcohol Administration Act. The intent of the post-Prohibition law was to prevent marketers from touting their brew's strength and leading consumers to the higher potency brands. But as detractors are quick to note, the law contains no similar prohibition for spirits or wine ads and labels.

Advertising groups say the key issue is whether government can regulate information to the public to achieve a specific outcome. If the answer is yes, then there's fear similar logic might be invoked in the face of a possible ad ban: Is it permissible for the state to ban or restrict tobacco or alcohol advertising if the government-sanctioned withholding of information could reduce the amount of smoking or drinking?

Some believe the Coors case could be as significant as any commercial speech case since the 1970s, when the Supreme Court began to acknowledge constitutional protections in that area.

The government may have an interest in trying to prevent alcohol consumption, but banning alcohol content information on labels fails to achieve the government's stated purpose, the advertising trade groups argue in a brief filed with the Supreme Court.

"The government's claim that truth will inevitably lead to strength wars completely ignores the experience of the distilled spirits industry, which has not experienced strength wars despite a federal requirement that alcohol content be truthfully disclosed," said the brief filed by the Association of National Advertisers, American Association of Advertising Agencies, American Advertising Federation and National Association of Broadcasters.

"Hell, yes, this case is important," said Four A's VP John Kamp, who helped write the groups' Supreme Court filing. "The question in this case is whether the government can force the withholding of information because it might be used in a way other than how the government would like. The government here is saying that ignorance is preferable."

He said he expects the court to rule in favor of Coors, but acknowledged the Supreme Court historically has treated cases involving alcohol, tobacco and gambling differently than other commercial speech cases.

In 1986, for example, the court upheld a Puerto Rico ban on advertising gambling to residents. Also in that case, Chief Justice William Rehnquist wrote that if the government can prohibit an endeavor, advertising for that activity can also be restricted or banned.

In a second case, the high court will be asked to uphold a Florida Bar Association prohibition of direct mail solicitation of accident victims' relatives by lawyers within 30 days of a disaster. The 11th U.S. Circuit Court of Appeals last spring struck down the Florida bar rule that was initially challenged by attorney G. Stewart McHenry.

The appellate court rejected the state bar's argument that a 30-day ban was reasonable to prevent traumatized relatives from being besieged with lawyer inquiries, and to protect their privacy. The court noted the state bar didn't extend the prohibition to similar solicitations by probate attorneys.

Although the Supreme Court traditionally affords different consideration to lawyer advertising cases, this one offers a twist. The appellate court said its decision was necessitated by the landmark 1977 Bates vs. Arizona Bar ruling, but said the attempt to limit direct mail solicitation was "understandable." The Bates ruling held lawyer advertising to be commercial speech, and, assuming it was neither false nor misleading, subject to limited regulation.

The Bates case is cited by commercial speech advocates as pivotal in furthering protection for advertising, and any attempt to diminish its impact could reverberate outside the narrow scope of lawyer advertising.

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