Prohibiting Television Advertising of Alcoholic Beverages: A Constitutional Analysis
CRS Report for Congress
Prohibiting Television Advertising
of Alcoholic Beverages:
A Constitutional Analysis
Updated March 21, 2002
American Law Division
Congressional Research Service ˜ The Library of Congress
Prohibiting Television Advertising of Alcoholic
Beverages: A Constitutional Analysis
Federal law does not prohibit radio or television advertising of alcoholic
beverages. However, starting in 1936 for radio and 1948 for television, the industry
voluntarily refrained from advertising hard liquor on radio or television. In December,
2001, NBC announced that it would air liquor advertisements, but in March 2002, it
reversed its policy.
The U.S. Court of Appeals for the District of Columbia has struck down a law
that banned “indecent” speech on broadcast radio and television 24 hours a day, but
has upheld the current law, which imposes the ban from 6 a.m. to 10 p.m. This
suggests that a comparable ban on liquor ads would be constitutional. A 24-hour ban
might too, however, because advertising is entitled to less protection under the First
Amendment than “indecent” speech. Yet the Supreme Court’s trend in recent years
of striking down governmental restrictions on commercial speech suggests that the
constitutionality of a 24-hour ban would hardly be certain.
Background .................................................... 1
First Amendment Protection of Commercial Speech......................2
Applying the Central Hudson Test...................................3
Conclusion .................................................... 7
Prohibiting Television Advertising of
Alcoholic Beverages: A Constitutional
Although federal law prohibits radio and television advertising of cigarettes and
little cigars (15 U.S.C. § 1335) and smokeless tobacco (15 U.S.C. § 4402), it does1
not prohibit radio and television advertising of alcoholic beverages. However,
starting in 1936 for radio and 1948 for television, the industry voluntarily refrained
from advertising hard liquor on radio or television. Then, in June 1996, Seagram
started to advertise its Crown Royal Canadian Whisky on an NBC station in Corpus
Christi, Texas, and, on November 7, 1996, the Distilled Spirits Council of the United
States said that it would lift the ban, but that it had “drawn up 26 guidelines for the
industry to follow – guidelines that will avoid a younger audience but also allow this
industry to compete more effectively . . . .”2 Nevertheless, the four major television
networks announced at the time that they would not air liquor advertisements. Then,
in December, 2001, NBC announced that it would accept liquor ads, but imposed 19
rules to govern them, including limiting them to after 9 p.m E.S.T., requiring that
actors in them be at least 30 years old, and requiring liquor advertisers also run social-3
responsibility messages on subjects like designated drivers and drinking moderately.
In March 2002, NBC announced that it would no longer accept liquor ads.4
1In Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971), aff’d without
opinion, 405 U.S. 1000 (1972), the Supreme Court upheld the constitutionality of the statute
prohibiting radio and television advertising of cigarettes and little cigars. This case, however,
seems of little precedential value today. It was decided at a time when the Court deemed
commercial speech to have no constitutional protection (see, Valentine v. Chrestensen, 316
U.S. 52 (1942)). In addition, the ban on tobacco advertising applies to “any medium of
electronic communication subject to the jurisdiction of the Federal Communications
Commission,” which, when the Supreme Court upheld the statute in 1972, before the
prevalence of commercial cable television, meant essentially broadcast radio and television.
And, in 1972, under the “spectrum scarcity” rationale of Red Lion Broadcasting Co. v.
Federal Communications Commission, 395 U.S. 367 (1969), broadcast radio and television
had limited First Amendment protection. The force of Red Lion today seems questionable;
cf., Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S.
622, 638 (1994), and Red Lion, in any event, would have no force with regard to an
advertising restriction applicable to cable television.
2Washington Post, Nov. 8, 1996, p. A1.
3See, New York Times, Dec. 14, 2001, p. C1.
4See, New York Times, Mar. 21, 2002, p. C1.
First Amendment Protection of Commercial Speech
The First Amendment to the U.S. Constitution provides that “Congress shall
make no law . . . abridging the freedom of speech, or of the press. . . .” Despite its
absolute language, the First Amendment provides only limited protection to
commercial speech, which includes advertisements.5
Commercial speech may be banned if it advertises an illegal product or service,
and, unlike fully protected speech, may be banned if it is unfair or deceptive. Even
when it advertises a legal product and is not unfair or deceptive, the government may
regulate commercial speech more than it may regulate fully protected speech.
Fully protected speech may be restricted only “to promote a compelling interest”
and only by “the least restrictive means to further the articulated interest.”6 For
commercial speech, by contrast, the Supreme Court has prescribed the four-prong
Central Hudson test to determine its constitutionality. This test asks initially (1)
whether the commercial speech at issue is protected by the First Amendment (that is,
whether it concerns a lawful activity and is not misleading) and (2) whether the
asserted governmental interest in restricting it is substantial. “If both inquiries yield
positive answers,” then to be constitutional the restriction must (3) “directly advance[
] the governmental interest asserted,” and (4) be “not more extensive than is necessary
to serve that interest.”7 The Supreme Court, however, subsequent to Central
Hudson, held that the fourth prong should not to be interpreted “strictly” to require
the legislature to use the “least restrictive means” available to accomplish its purpose.
Rather, the Court held, legislation regulating commercial speech satisfies the fourth
prong if there is a reasonable “fit” between the legislature's ends and the means chosen
to accomplish those ends.8
5Commercial speech, for purposes of First Amendment analysis, is “speech that proposes a
commercial transaction.” Board of Trustees of the State University of New York v. Fox, 492
U.S. 469, 482 (1989) (emphasis in original). That books and films are sold for profit does
not make them commercial speech; i.e., it does not “prevent them from being a form of
expression whose liberty is safeguarded [to the maximum extent] by the First Amendment.”
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502 (1952).
6Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S.
7Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S.
8Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480 (1989).
The Court does “not equate this test with the less rigorous obstacles of rational basis review.”
Florida Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995). In other words, although a
restriction on commercial speech need not constitute the least restrictive means to satisfy the
fourth prong, it must be more than merely rational.
Applying the Central Hudson Test
The first prong of the Central Hudson test asks whether the restricted speech
concerns a lawful activity and is not misleading. The sale of alcoholic beverages is
generally lawful, and we assume that a ban on radio and television advertising of
alcoholic beverages would apply to non-misleading advertisements.
The second prong of the Central Hudson test asks whether the asserted
governmental interest in restricting the commercial speech in question is substantial.
The Supreme Court, in Posadas de Puerto Rico Associates v. Tourism Company of
Puerto Rico, held that a government’s “interest in the health, safety, and welfare of
its citizens constitutes a ‘substantial’ governmental interest.”9 There thus seems no
doubt that a ban on alcoholic beverage advertising would satisfy the second prong.
It is on the next two prongs that the case likely will turn, as these prongs address
whether the government’s restriction on commercial speech is a reasonable way to
further that interest.
In Rubin v. Coors Brewing Co., the Court struck down a federal statute, 27
U.S.C. § 205(e), that prohibited beer labels from displaying alcohol content unless
state law requires such disclosure.10 The Court found sufficiently substantial to satisfy
the second prong of the Central Hudson test the government’s interest in curbing
“strength wars” by beer brewers who might seek to compete for customers on the
basis of alcohol content. With respect to the third prong, however, it concluded that
the ban “cannot directly and materially advance” this “interest because of the overall
irrationality of the Government’s regulatory scheme.”11 This irrationality was
evidenced by the fact that the ban did not apply to beer advertisements, and by the
fact that the statute required the disclosure of alcohol content on the labels of wines
In 44 Liquormart, Inc. v. Rhode Island, the Court struck down a statute that
prohibited advertising the price of alcoholic beverages, finding that Rhode Island had
not met its burden of showing that the “ban will significantly advance the State’s
interest in promoting temperance.”12
Cases like Rubin and 44 Liquormart indicate that, to satisfy the third prong of
the Central Hudson test, the government must present evidence to support its claim
that its restriction on commercial speech directly and materially advances a substantial
governmental interest. In Florida Bar v. Went For It, Inc., the Court upheld a rule
of the Florida Bar that prohibited personal injury lawyers from sending targeted
direct-mail solicitations to victims and their relatives for 30 days following an accident
9478 U.S. 328, 341 (1986).
10514 U.S. 476 (1995).
11Id. at 488.
12517 U.S., at 505.
or disaster.13 The Bar argued “that it has a substantial interest in protecting the
privacy and tranquility of personal injury victims and their loved ones against
intrusive, unsolicited contact by lawyers,”14 and the Court found that “[t]he anecdotal
record mustered by the Bar” to demonstrate that its rule would advance this interest
in a direct and material way was "noteworthy for its breadth and detail”; it was not
“mere speculation and conjecture.”15
By contrast, in 44 Liquormart, the Court found that “any conclusion that
elimination of the ban [on alcoholic beverage price advertising] would significantly
increase alcohol consumption would require us to engage in the sort of ‘speculation
or conjecture’ that is an unacceptable means of demonstrating that a restriction on16
commercial speech directly advances the State’s asserted interest.”
Thus, if a ban on radio and television advertising of alcoholic beverages were
enacted and challenged as unconstitutional, the government would have to
demonstrate that such a ban would directly and materially advance the governmental
interest in reducing alcohol consumption. Arguably, a ban on radio and television
advertising of alcoholic beverages would advance the governmental interest in
reducing alcohol consumption in a much more straightforward way than the laws
against disclosing alcohol content or alcohol prices that the Supreme Court held
unconstitutional, and consequently would likely be found to satisfy the third prong of
the Central Hudson test.17
We turn now to the fourth prong of the Central Hudson test – that restrictions
on commercial speech constitute a reasonable “fit” between the legislature’s ends and
the means chosen to accomplish those ends.
In 44 Liquormart, the Court found it “perfectly obvious that alternative forms
of regulation would be more likely to achieve the State’s goal of promoting
temperance. As the State’s own expert conceded, higher prices can be maintained
either by direct regulation or by increased taxation. . . . Even educational campaigns
. . . might prove to be more effective.”18 With respect to a ban on radio and television
advertising of alcoholic beverages, it does not seem “perfectly obvious that alternative
forms of regulation would be more likely to achieve the State’s goal of promoting
Another goal of a ban on radio and television advertising, however, might be to
protect children in particular from such advertising, and a court might find that a total
13515 U.S. 618 (1995).
14Id. at 624.
15Id. at 627.
16517 U.S., at 507.
17The Supreme Court has “acknowledged the theory that product advertising stimulates
demand for products, while suppressing advertising may have the opposite effect.” Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525, 560-561 (2001).
18 Id .
ban on radio and television advertising is not necessary to accomplish this goal. A
federal court of appeals declared unconstitutional a statute that prohibited “indecent”
material on broadcast radio and television, but subsequently upheld such a statute that
banned it only from 6 a.m. to 10 p.m., which Congress had deemed to be the hours
when most children are in the audience.19 “Indecent” material, however, is fully
protected by the First Amendment and therefore may be restricted only by the least
restrictive means available to further a compelling governmental interest.20 A
restriction of commercial speech, by contrast, need merely represent a reasonable fit
between means and ends. Under this standard, it seems more likely that a court
would uphold a total ban on radio and television advertising.
Nevertheless, a 1996 court of appeals case, Anheuser-Busch, Inc. v. Schmoke,
might support an argument that a total ban on radio and television advertising would
be unconstitutional.21 The Fourth Circuit, in 1995, had upheld a city ordinance that
prohibited, except in certain commercially and industrially zoned areas of the city,
billboards and other outdoor advertising of alcoholic beverages. The Supreme Court
vacated and remanded to the Fourth Circuit “for further consideration in light of 44
Liquormart . . . .” The Fourth Circuit, after further consideration in light of 44
Liquormart, re-adopted its previous decision.
In 44 Liquormart, the Supreme Court had increased the protection that the
Central Hudson test guarantees to commercial speech by making clear that “when a
State entirely prohibits the dissemination of truthful, nonmisleading commercial
messages for reasons unrelated to the preservation of a fair bargaining process,” the
courts should apply stricter review than when a regulation is designed “to protect
consumers from misleading, deceptive, or aggressive sales practices.”22 The Court
found that “[t]he First Amendment directs us to be especially skeptical of regulations
that seek to keep people in the dark for what the government perceives to be their
own good.”23 In its reconsideration of Anheuser-Busch, Inc. v. Schmoke, the Fourth
Circuit wrote that, in its previous decision,
19Action for Children’s Television v. Federal Communications Commission, 932 F.2d 1504
(D.C. Cir. 1991), cert. denied, 503 U.S. 913 (1992); Action for Children’s Television v.
Federal Communications Commission, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied,
20It is fully protected unless it constitutes obscenity under Miller v. California, 413 U.S. 15
(1973), or child pornography under New York v. Ferber, 458 U.S. 747 (1982). Those two
forms of speech receive no protection.
2163 F.3d 1305 (4th Cir. 1995), vacated and remanded, 517 U.S. 1206 (1996), affirmed on
reconsideration, 101 F.3d 325 (4th Cir. 1996), cert. denied, 520 U.S. 1204 (1997).
Baltimore has a similar ordinance with respect to cigarette advertising, which the Fourth
Circuit also upheld, the Supreme Court remanded, and the Fourth Circuit re-adopted. Penn
Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, 63 F.3d 1318 (4th
Cir. 1995), vacated and remanded, 518 U.S. 1030 (1996), affirmed on reconsideration, 101
F.3d 332 (4th Cir. 1996), cert. denied, 520 U.S. 1204 (1997).
22517 U.S., at 501.
23Id. at 503.
we recognized the reasonableness of Baltimore City’s legislative finding
that there is a “definite correlation between alcoholic beverage advertising
and underage drinking.” . . . While we acknowledged that the geographical
limitation on outdoor advertising may also reduce the opportunities of
adults to receive the information, we recognize that there were numerous
other means of advertising to adults . . . .
In 44 Liquormart, by contrast, the State prohibited all advertising
throughout Rhode Island, “in any manner whatsoever,” of the price of
alcoholic beverages except for price tags or signs displayed with the
beverages and not visible from the street. . . . While Rhode Island’s blanket
ban on price advertising failed Central Hudson scrutiny, Baltimore’s
attempt to zone outdoor alcoholic beverage advertising into appropriate
areas survived our “close look” at the legislature’s means of accomplishing
its objective . . . . Baltimore’s ordinance expressly targets persons who
cannot be legal users of alcoholic beverages, not legal users as in Rhode
Island. More significantly, Baltimore does not ban outdoor advertising of
alcoholic beverages outright but merely restricts the time, place, and
manner of such advertisements. And Baltimore’s ordinance does not
foreclose the plethora of newspaper, magazine, radio, television, direct
mail, Internet, and other media available to Anheuser-Busch and its
This quotation might support the constitutionality of a ban on radio and
television advertising of alcoholic beverages, as the government could argue that such
advertising is especially accessible to children, and that such a ban does not foreclose
advertisements for alcoholic beverages in “the plethora of . . . other media.” At the
same time, however, the Fourth Circuit’s finding significant the fact that “Baltimore
does not ban outdoor advertising of alcoholic beverages outright but merely restricts
the time, place, and manner of such advertisements” might support an argument that
a 24-hour-a-day ban on radio and television advertising of alcoholic beverages would
go beyond a reasonable fit between the government’s ends and means. A ban of
fewer than 24 hours, one might argue, might be sufficient to protect children.
Nevertheless, because the government in regulating commercial speech, unlike in
regulating “indecent” material, is not required to use the least restrictive means
available to further its ends, the courts might uphold a total ban on radio and
television advertising of alcoholic beverages.
The Fourth Circuit focused on the fact that the Baltimore regulation was aimed
at protecting children. Though the Supreme Court in 44 Liquormart said that it
would be “skeptical of regulations that seek to keep people in the dark for what the
government perceives to be their own good,” its disapproval of governmental
paternalism would likely diminish where such paternalism is directed at children.
Furthermore, the Court in 44 Liquormart objected to a state’s “entirely” prohibiting
“the dissemination of truthful, nonmisleading commercial messages for reasons
unrelated to the preservation of a fair bargaining process,” and the Baltimore
prohibition was not total.
Subsequent to the Fourth Circuit’s decision, the Supreme Court, in Lorillard
Tobacco Co. v. Reilly, struck down, under the fourth prong of the Central Hudson
test, a Massachusetts regulation that prohibited the outdoor advertising of cigarettes,
smokeless tobacco, and cigars within 1,000 feet of schools or playgrounds.24 The
Court found that the regulation “prohibit[ed] advertising in a substantial portion of25
the major metropolitan areas of Massachusetts,” and that such a burden on speech
did not constitute a reasonable fit between the means and ends of the regulatory
scheme. “Similarly, a ban on all signs of any size seems ill suited to target the
problem of highly visible billboards, as opposed to smaller signs.”26
The Lorillard decision need not be read to imply that the Court today would
disapprove of the Fourth Circuit’s decision, as the regulations at issue in the two cases
were different. It is unclear, for example, whether the Baltimore regulations’
inapplicability in certain commercially and industrially zoned areas of the city
prevented it from restricting speech, as the Massachusetts regulation did, in a
substantial portion of the metropolitan area. But Lorillard was a continuation of the
Court’s trend in recent years of striking down governmental restrictions of27
Whether the Supreme Court would uphold a restriction on television advertising
of alcoholic beverages might depend upon whether the Court views it as an attempt
“to keep people in the dark for what the government perceives to be their own good,”
or as an attempt to protect children. It might be more likely to view a 24-hour ban
as the former, and a more limited ban as the latter.
Furthermore, in light of the D.C. Circuit’s having upheld the 6 a.m. - 10 p.m. ban
on “indecent” material on broadcast radio and television, and the fact that “indecent”
material receives greater First Amendment protection than commercial speech, it
seems likely that a comparable restriction on radio and television advertising of
alcoholic beverages would be found constitutional.
It is more difficult to predict, however, whether a 24-hour-a-day ban would be
upheld. Though the D.C. Circuit struck down such a ban for “indecent” material,
such material, again, receives greater First Amendment protection than commercial
speech. Yet the Supreme Court’s trend of striking down commercial speech
restrictions makes it hardly certain that it would uphold a 24-hour ban on television
advertising of alcoholic beverages
24533 U.S. 525 (2001).
25Id. at 562.
26Id. at 564.
27Since 1994, the Court has struck down commercial speech restrictions in Ibanez v. Florida
Board of Accountancy, 512 U.S. 136 (1994); Rubin v. Coors Brewing Co., 514 U.S. 476
(1995); Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995); 44 Liquormart, Inc. v. Rhode
Island, 517 U.S. 484 (1996); Greater New Orleans Broadcasting Association, Inc. v. United
States, 527 U.S. 173 (1999); and Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).
Since 1994, it has upheld restrictions only in Lorillard, and these concerned retail product
placement, not advertising.