44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484 (1996)

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Cite as: 517 U. S. 484 (1996)

Opinion of Thomas, J.

order to keep information from legal purchasers so as to thwart what would otherwise be their choices in the marketplace.4

II

I do not join the principal opinion's application of the Central Hudson balancing test because I do not believe that such a test should be applied to a restriction of "commercial" speech, at least when, as here, the asserted interest is one that is to be achieved through keeping would-be recipients of the speech in the dark.5 Application of the advancement-of-state-interest prong of Central Hudson makes little sense to me in such circumstances. Faulting the State for failing to show that its price advertising ban decreases alcohol consumption "significantly," as Justice Stevens does, ante, at 507 (emphasis deleted), seems to imply that if the State had been more successful at keeping consumers ignorant and thereby decreasing their consumption, then the restriction might have been upheld. This contradicts Virginia Bd. of

4 As noted above, the asserted rationales for differentiating "commercial" speech from other speech are (1) that the truth of "commercial" speech is supposedly more verifiable, and (2) that "commercial speech, the offspring of economic self-interest" is supposedly a "hardy breed of expression that is not particularly susceptible to being crushed by overbroad regulation." Central Hudson, supra, at 564, n. 6 (internal quotation marks omitted). The degree to which these rationales truly justify treating "commercial" speech differently from other speech (or indeed, whether the requisite distinction can even be drawn) is open to question, in my view. See Kozinski & Banner, Who's Afraid of Commercial Speech, 76 Va. L. Rev. 627, 634-638 (1990) (questioning basis for drawing distinction); id., at 638-650 (questioning coherence of distinction). In any event, neither of these rationales provides any basis for permitting government to keep citizens ignorant as a means of manipulating their choices in the commercial or political marketplace.

5 In other words, I do not believe that a Central Hudson-type balancing test should apply when the asserted purpose is like the one put forth by the government in Central Hudson itself. Whether some type of balancing test is warranted when the asserted state interest is of a different kind is a question that I do not consider here.

523

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