Parties: Rubin v. Coors Brewing Co.
Date: 1995-04-19
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Paragraph: 44 - N290* I think respondent has a constitutional right to give the public accurate information about the alcoholic content of the malt beverages that it produces. I see no reason why the fact that such information is disseminated on the labels of respondent's products should diminish that constitutional protection.
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Paragraph: 36 - In my opinion the "commercial speech doctrine" is unsuited to this case, because the Federal Alcohol Administration Act (FAAA) neither prevents misleading speech nor protects consumers from the dangers of incomplete information. A truthful statement about the alcohol content of malt beverages would receive full First Amendment protection in any other context; without some justification tailored to the special character of commercial speech, the Government should not be able to suppress the same truthful speech merely because it happens to appear on the label of a product for sale.
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Paragraph: 43 - N121* Not only does regulation of inaccurate commercial speech exclude little truthful speech from the market, but false or misleading speech in the commercial realm also lacks the value that sometimes inheres in false or misleading political speech. Transaction-driven speech usually does not touch on a subject of public debate, and thus misleading statements in that context are unlikely to engender the beneficial public discourse that flows from political controversy. Moreover, the consequences of false commercial speech can be particularly severe: investors may lose their savings, consumers may purchase products that are more dangerous than they believe or that do not work as advertised. Finally, because commercial speech often occurs in the place of sale, consumers may respond to the falsehood before there is time for more speech and considered reflection to minimize the risks of being misled.
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Paragraph: 43 - The evils of false commercial speech, which may have an immediate harmful impact on commercial transactions, together with the ability of purveyors of commercial speech to control falsehoods, explain why we tolerate more governmental regulation of this speech than of most other speech.
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Paragraph: 37 - The First Amendment generally protects the right not to speak as well as the right to speak. See McIntyre v. Ohio Elections Comm'n, --- U.S. ----, ----, 115 S.Ct. 1511, ----, --- L.Ed.2d ---- (1995) (slip op., at 7); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974); cf. Wallace v. Jaffree, 472 U.S. 38, 51-52, 105 S.Ct. 2479, 2486-2487, 86 L.Ed.2d 29 (1985). In the commercial context, however, government is not only permitted to prohibit misleading speech that would be protected in other contexts, Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-772, 96 S.Ct. 1817, 1830-1831, 48 L.Ed.2d 346 (1976), but it often requires affirmative disclosures that the speaker might not make voluntarily.
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Paragraph: 39 - In Central Hudson, the Court held that commercial speech is categorically distinct from other speech protected by the First Amendment. 447 U.S., at 561-566 and n. 5, 100 S.Ct., at 2348-2351 and n. 5. Defining N218* "commercial speech," alternatively, as "expression related solely to the economic interests of the speaker and its audience," id., at 561, 100 S.Ct., at 2348, and as N219* " 'speech proposing a commercial transaction,' " id., at 562, 100 S.Ct., at 2349, quoting Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456, 98 S.Ct. 1912, 1918-1919, 56 L.Ed.2d 444 (1978), the Court adopted its much-quoted four-part test for determining when the government may abridge such expression. In my opinion the borders of the commercial speech category are not nearly as clear as the Court has assumed, and its four-part test is not related to the reasons for allowing more regulation of commercial speech than other speech.
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