528
O'Connor, J., concurring in judgment
requires judges to delineate those situations in which citizens cannot be trusted with information, and invites judges to decide whether they themselves think that consumption of a product is harmful enough that it should be discouraged.10 In my view, the Central Hudson test asks the courts to weigh incommensurables—the value of knowledge versus the value of ignorance—and to apply contradictory premises—that informed adults are the best judges of their own interests, and that they are not. Rather than continuing to apply a test that makes no sense to me when the asserted state interest is of the type involved here, I would return to the reasoning and holding of Virginia Bd. of Pharmacy. Under that decision, these restrictions fall.
Justice O'Connor, with whom The Chief Justice, Justice Souter, and Justice Breyer join, concurring in the judgment.
Rhode Island prohibits advertisement of the retail price of alcoholic beverages, except at the place of sale. The State's only asserted justification for this ban is that it promotes temperance by increasing the cost of alcoholic beverages. Brief for Respondent State of Rhode Island 22. I agree with the Court that Rhode Island's price-advertising ban is invalid. I would resolve this case more narrowly, however, by applying our established Central Hudson test to determine whether this commercial speech regulation survives First Amendment scrutiny.
Under that test, we first determine whether the speech at issue concerns lawful activity and is not misleading, and whether the asserted governmental interest is substantial. If both these conditions are met, we must decide whether the regulation "directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." Central Hudson Gas & Elec.
10 See ante, at 514 (noting that scope of any "vice" category of products would be difficult to define).
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