524
Opinion of Thomas, J.
Pharmacy's rationale for protecting "commercial" speech in the first instance.
Both Justice Stevens and Justice O'Connor appear to adopt a stricter, more categorical interpretation of the fourth prong of Central Hudson than that suggested in some of our other opinions,6 one that could, as a practical matter, go a long way toward the position I take. The State argues that keeping information about lower priced alcohol from consumers will tend to raise the total price of alcohol to consumers (defined as money price plus the costs of searching out lower priced alcohol, see Brief for Respondents 23), thus discouraging alcohol consumption. In their application of the fourth prong, both Justice Stevens and Justice O'Connor hold that because the State can ban the sale of lower priced alcohol altogether by instituting minimum prices or levying taxes, it cannot ban advertising regarding lower priced liquor. Although the tenor of Justice O'Connor's opinion (and, to a lesser extent, that of Justice Stevens' opinion) might suggest that this is just another routine case-by-case application of Central Hudson's fourth prong, the Court's holding will in fact be quite sweeping if applied consistently in future cases. The opinions would appear to commit the courts to striking down restrictions on speech whenever a direct regulation (i. e., a regulation involving no restriction on speech regarding lawful activity at all) would be an equally effective method of dampening demand by legal users. But it would seem that directly banning a product (or rationing it, taxing it, controlling its price, or otherwise restricting its sale in specific ways) would virtually always be at least as effective in discouraging consumption as merely restricting advertising regarding the product would be, and thus virtually all restrictions with such a purpose would fail the fourth prong of the Central Hudson test.
6 E. g., Cincinnati v. Discovery Network, 507 U. S., at 417, n. 13 (commercial speech restrictions impermissible if alternatives are "numerous" and obvious).
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