Cite as: 517 U. S. 484 (1996)
Opinion of Thomas, J.
This would be so even if the direct regulation is, in one sense, more restrictive of conduct generally. In this case, for example, adoption of minimum prices or taxes will mean that those who, under the current legal system, would have happened across cheap liquor or would have sought it out, will be forced to pay more. Similarly, a State seeking to discourage liquor sales would have to ban sales by convenience stores rather than banning convenience store liquor advertising; it would have to ban liquor sales after midnight, rather than banning advertising by late-night liquor sellers; and so on.
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.7 I welcome this outcome; but,
7 The two most obvious situations in which no equally effective direct regulation will be available for discouraging consumption (and thus, the two situations in which the Court and I might differ on the outcome) are: (1) When a law directly regulating conduct would violate the Constitution (e. g., because the item is constitutionally protected), or (2) when the sale is to occur outside the State's borders.
As to the first situation: Although the Court's application of the fourth prong today does not specifically foreclose regulations or bans of advertising regarding items that cannot constitutionally be banned, it would seem strange to hold that the government's power to interfere with transmission of information regarding these items, in order to dampen demand for them, is more extensive than its power to restrict, for the same purpose, advertising of items that are not constitutionally protected. Cf. Bigelow v. Virginia, 421 U. S. 809, 822 (1975).
As to the second situation: When a State seeks to dampen consumption
by its citizens of products or services outside its borders, it does not have the option of direct regulation. Here, a respondent correctly points out that alternatives such as taxes will not be effective in discouraging sales
525
Page: Index Previous 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 NextLast modified: October 4, 2007