Supreme Court reviews restriction on liquor-price advertising Case could affect curbs on Baltimore billboards

November 02, 1995|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court probed deeply and skeptically yesterday into the power of states and cities to curb advertising as a way to help people avoid overindulging in liquor, tobacco and maybe even fatty foods.

At a one-hour hearing, most of the justices took a lively interest in a liquor advertising case from Rhode Island that could have an impact in Baltimore. The outcome could affect the constitutionality of the city's 1994 ordinances that ban liquor and cigarette billboards in order to protect minors.

Although the case focuses on Rhode Island's ban on advertising liquor prices, the justices' questions appeared to indicate that they saw a potentially wide-ranging effect on government authority to curb commercial promotion of items that may be harmful.

Rhode Island's nearly 40-year-old ban on liquor price ads is based on the theory that it cuts consumption and thus promotes road safety and family stability.

Prior court rulings require governments that seek to control expression to justify the need for it. A key issue pressed by several justices yesterday was whether a state or city must show that consumption of a product actually would drop as a result of limits on advertising it.

The decision in the Rhode Island case, besides affecting state and local governments' control of ads, could provide clues to the constitutional fate of President Clinton's plan to impose new limits on cigarette ads to protect children. The Clinton plan would ban outdoor cigarette ads near schools and playgrounds -- similar to a ban imposed by the Baltimore City Council last year.

The city has banned outdoor advertising of cigarettes and liquor in locations where minors would be likely to see the ads. Both ordinances were upheld in August by the 4th U.S. Circuit Court of Appeals in Richmond, Va. But both are facing constitutional challenges in appeals filed or soon to be filed at the Supreme Court.

At yesterday's hearing, several justices questioned how far states or cities could go to outlaw advertising of other socially harmful products, if Rhode Island wins its drive for clear-cut power to limit liquor price ads.

"Is there a stopping point?" Justice Stephen G. Breyer asked Rhode Island's lawyer, Rebecca T. Parkington. Could ads for food be banned, he asked, on the theory that people should not overeat? How about ads for "anything that is carcinogenic if fed in large doses to small animals?"

Justice Anthony M. Kennedy wondered whether states would be free to ban price advertising for guns and bullets, and Justice Antonin Scalia asked about limiting the advertising of red meat. Justice Ruth Bader Ginsburg inquired about ads for butter. "What is the line" states may not cross? she asked.

Ms. Parkington said that liquor was unique because of the long history of state controls on liquor sales and because of the 21st Amendment, which ended Prohibition and gave states broad power to control the sale of liquor.

Justice Sandra Day O'Connor, who earlier in the hearing had suggested that states should perhaps have more leeway to curb liquor ads, seemed to switch positions. She told Ms. Parkington that the court had never ruled that the 21st Amendment gives the states the power "to interfere in the First Amendment area."

"I think that would be a disaster," Justice O'Connor remarked.

Justice Scalia also told the Rhode Island lawyer that the 21st Amendment had no bearing on the case, because nothing in that amendment gave the states authority to control what is said about liquor.

At other times during the hearing, however, Justice Scalia seemed sympathetic to the state's claim of power to regulate advertising of items that the people of the state thought were harmful.

Justice Scalia told the lawyer for the liquor dealers who challenged the price ban, Evan T. Lawson, that it was clear that states constitutionally could ban nearly anything that the public considered to be harmful -- even if that included toothpaste.

Under questioning from Justice Breyer, Mr. Lawson conceded that states had the power to try to stop excessive drinking.

But, if they tried to promote moderation by the indirect means of limiting advertising, they had to obey the First Amendment, the lawyer said.

The court is expected to decide the case by late spring or early summer.

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