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Published on .

Excerpts of concurring opinion by Justice Clarence Thomas.

In cases such as this, in which the government's asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace, the balancing test adopted in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y. should not be applied, in my view. Rather, such an "interest" is per se illegitimate and can no more justify regulation of "commercial" speech than it can justify regulation of "non-commercial" speech...

[Editor's note: The Central Hudson test for evaluating the constitutionality of commercial speech regulation says the courts must first determine if the speech at issue concerns a lawful activity and is not misleading. If so, the court then determines whether the asserted government interest in curbing the speech is substantial, whether the regulation "directly advances the interest asserted and whether it is not more extensive than is necessary to serve that interest."]

The upshot of the application of the fourth prong in the opinions of Justice Stevens and of Justice O'Connor seems to be that the government may not, for the purpose of keeping would-be consumers ignorant and thus decreasing demand, restrict advertising regarding commercial transactions-or at least that it may not restrict advertising regarding commercial transactions except to the extent that it outlaws or otherwise directly restricts the same transactions within its own borders. I welcome this outcome; but, rather than "applying" the fourth prong of Central Hudson to reach the inevitable result that all or most such advertising restrictions must be struck down, I would adhere to the doctrine adopted in Virginia Pharmacy Bd. and in Justice Blackmun's Central Hudson concurrence, that all attempts to dissuade legal choices by citizens by keeping them ignorant are impermissible.

Excerpts from concurring opinion written by Justice Sandra Day O'Connor.

Rhode Island says that the ban is intended to keep alcohol prices high as a way to keep consumption low...The fit between Rhode Island's method and this particular goal is not reasonable... Respondents point for support to Posadas de Puerto Rico Associates v. Tourism Co. of P.R., 478 U.S. 328 (1986), where, applying the Central Hudson test, we upheld the constitutionality of a Puerto Rico law that prohibited the advertising of casino gambling aimed at residents of Puerto Rico but permitted such advertising aimed at tourists...Respondents ask us to make a similar presumption here...

It is true that Posadas accepted as reasonable...Puerto Rico's assertions that the regulations furthered the government's interest and were no more extensive than necessary to serve that interest. Since Posadas, however, this Court has examined more searchingly the state's professed goal, and the speech restriction put into place to further it, before accepting a state's claim that the speech restriction satisfies First Amendment scrutiny...

Because Rhode Island's regulation fails even the less stringent standard set out in Central Hudson, nothing here requires adoption of a new analysis for the evaluation of commercial speech regulation...

Excerpts from concurring opinion written by Justice Antonin Scalia.

I share Justice Thomas' discomfort with the Central Hudson test, which seems to me to have nothing more than policy intuition to support it. I also share Justice Stevens' aversion toward paternalistic governmental policies that prevent men and women from hearing facts that might not be good for them. On the other hand, it would also be paternalism for us to prevent the people of the states from enacting laws that we consider paternalistic, unless we have good reason to believe that the Constitution itself forbids them...

The briefs and arguments of the parties in the present case provide no illumination on that point; understandably so, since both sides accepted Central Hudson...Since I do not believe we have before us the wherewithal to declare Central Hudson wrong-or at least the wherewithal to say what ought to replace it-I must resolve this case in accord with our existing jurisprudence, which all except Justice Thomas agree would prohibit the challenged regulation.

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