532
O'Connor, J., concurring in judgment
the analysis set out in Central Hudson, by requiring the State to show that the speech restriction directly advances its interest and is narrowly tailored. Under such a closer look, Rhode Island's price-advertising ban clearly fails to pass muster.
Because Rhode Island's regulation fails even the less stringent standard set out in Central Hudson, nothing here requires adoption of a new analysis for the evaluation of commercial speech regulation. The principal opinion acknowledges that "even under the less than strict standard that generally applies in commercial speech cases, the State has failed to establish a reasonable fit between its abridgment of speech and its temperance goal." Ante, at 507 (internal quotation marks omitted). Because we need go no further, I would not here undertake the question whether the test we have employed since Central Hudson should be displaced.
Respondents argue that an additional factor, the Twenty-first Amendment, tips the First Amendment analysis in Rhode Island's favor.
The Twenty-first Amendment repealed the prohibition on the manufacture, sale, or transportation of intoxicating liquors that had been established by the Eighteenth Amendment. Section 2 of the Twenty-first Amendment created an exception to the normal operation of the Commerce Clause, to permit States to prohibit commerce in, or the use of, alcoholic beverages. Craig v. Boren, 429 U. S. 190, 206 (1976).
In its examination of Rhode Island's statute, the Court of Appeals erroneously concluded that the Twenty-first Amendment provided an "added presumption in favor of the validity of the state regulation." 39 F. 3d, at 7-9 (internal quotation marks omitted). The Twenty-first Amendment cannot save an otherwise invalid restriction on speech.
Nothing in the Amendment's text or history justifies its use to alter the application of the First Amendment. "[O]ur prior cases have made clear that the [Twenty-first] Amend-
Page: Index Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 NextLast modified: October 4, 2007