Cite as: 517 U. S. 484 (1996)
Opinion of Thomas, J.
Court, have found the Central Hudson "test" to be, as a general matter, very difficult to apply with any uniformity.8 This may result in part from the inherently nondeterminative nature of a case-by-case balancing "test" unaccompanied by any categorical rules, and the consequent likelihood that individual judicial preferences will govern application of the test.9 Moreover, the second prong of Central Hudson, as applied to the facts of that case and to those here, apparently
8 See, e. g., Kozinski & Banner, 76 Va. L. Rev., at 630-631 (citing cases); Wright, Freedom and Culture: Why We Should Not Buy Commercial Speech, 72 Denver U. L. Rev. 137, 162-166 (1994) (citing cases); Kasakove, New York State Association of Realtors, Inc. v. Shaffer: When the Second Circuit Chooses Between Free Speech and Fair Housing, Who Wins?, 61 Brooklyn L. Rev. 397, 409-410, and nn. 71, 73, 418 (1995); Note, Dunagin v. City of Oxford: Mississippi's Suppression of Liquor Advertising, 63 Detroit L. Rev. 175, 184-187 (1985); Faille, Spinning the Roulette Wheel: Commercial Speech and Philosophical Cogency, Fed. B. N. & J. 58, 60-62 (1994); Margulies, Connecticut's Free Speech Clauses: A Framework and an Agenda, 65 Conn. Bar J. 437, 440, n. 20 (1991) (citing cases).
9 The third prong of Central Hudson is far from a mechanical one. In Posadas, Edge, and other cases, the Court has presumed that advertising bans decrease consumption. Here, by contrast, the principal opinion demands proof of a "significant" decrease in consumption, and finds it lacking. But petitioners' own expert testified at one point that, taking into account disposable income, price was a "potent" influence on alcohol consumption, see App. 79; and the American Medical Association had apparently concluded that advertising of alcohol in general increased total alcohol consumption sufficiently to make a ban on advertising worthwhile, see 44 Liquor Mart, Inc. v. Racine, 829 F. Supp. 543, 548 (RI 1993). A court more inclined to uphold the ban here could have pointed to these facts in support.
The courts have also had difficulty applying the fourth prong because the outcome has depended upon the level of generality with which the interest was described. See Faille, supra, at 58, 60. If today's strict application of the fourth prong survives, it will clarify the prong's application in a large number of cases, since, as noted above, it will simply invalidate most restrictions in which the government attempts to manipulate consumption through enforced ignorance rather than through direct regulation.
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