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08/24/77 OPINION JUSTICES TO SENATE

August 24, 1977

OPINION OF THE JUSTICES TO THE SENATE


Edward F. Hennessey, Francis J. Quirico, Robert Braucher, Benjamin Kaplan, Herbert P. Wilkins, Paul J. Liacos, Ruth I. Abrams.

SYLLABUS BY THE COURT

Constitutional Law, Police power, Freedom of speech and press, Alcoholic liquors, Opinions of the Justices. Alcoholic Liquors.

With respect to two bills pending in the General Court in 1977, Senate No. 1718 and House No. 2762, each of which would amend G. L. c. 138 and would limit the advertising of alcoholic beverages, this court, upon being asked by the Senate whether the bills, if enacted, would contravene various provisions of the Constitution of the United States or the Constitution of the Commonwealth, was unable to provide definite answers regarding the validity of the bills because of the absence of a record developing facts and reasons; however, for the assistance of the Senate in any further deliberations, the court set out its provisional or explanatory opinion. [890]

On August 24, 1977, the Justices submitted the following answer to a question propounded to them by the Senate.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit their answer to the questions stated in an Order dated June 14, 1977, and transmitted to us on June 23, 1977.

The Order recites that there are pending in the General Court two bills, Senate No. 1718 and House No. 2762 (transmitted to us with the Order), each of which would limit the advertising of alcoholic beverages. We are asked to express our opinion whether the bills, if enacted, would contravene § 1 of the Fourteenth Amendment to the Constitution of the United States and art. 10 of the Declaration of Rights of the Constitution of the Commonwealth guaranteeing equal protection of the laws; or § 8 of art. I of the Constitution of the United States containing the commerce clause; or § 2 of the Twenty-first Amendment to the Constitution of the United States dealing with the importation of intoxicating liquors into any of the States; or would exceed the General Court's police power as set forth in Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth.

Although the Order does not mention specifically the First Amendment to the Constitution of the United States or art. 16 of the Declaration of Rights of the Commonwealth regarding freedom of speech, those constitutional provisions are necessarily implicated by the question whether the bills would exceed the police power, since the free speech guaranty (like other similar guaranties of personal rights) operates as a limitation on that power. See Commonwealth v. Libbey, 216 Mass. 356, 357-358 (1914). *fn1

Summary of answer. There is doubt that the bills could withstand certain challenges based on constitutional grounds. The outcome of litigation on such lines would depend, in part, on whether adequate reasons or justifications could be established for the restrictions imposed by the bills. In the absence of a record developing the facts and reasons (including reference to any findings that might be made by the Legislature in the course of the passage of the bills), we are unable to provide a definite answer regarding the validity of the bills. Cf. Opinion of the Justices, 5 Met. 596, 597-598 (1844). For the assistance of the Senate in any further deliberations, we set out our provisional or explanatory opinion.

Senate No. 1718. This bill (text in Appendix) would amend G. L. c. 138, § 24, by adding a proviso prohibiting all price advertising of alcoholic beverages appearing outside licensed premises, except such as is (i) visible from inside the premises, (ii) contained in a publication circulated to the liquor trade and not to the general public, or (iii) placed by the brand owner in a publication circulated to the general public. *fn2

We consider a possible claim by a retailer in the Commonwealth that he has a constitutional right to publish his prices by handbill or newspaper outside the licensed premises, and a corresponding claim by consumers that they are constitutionally entitled to receive the information in those ways. This takes us to Bates v. State Bar of Ariz. 433 U.S. 350, decided on June 27, 1977, which held that the State was without power to forbid a lawyer to advertise to the general public the fees he proposed to charge for routine (i.e., more or less standardized) services. The Bates case was the culmination of a series of decisions by the Supreme Court according qualified First Amendment rights to advertising (commercial speech), and overruling the contrary suggestions of Valentine v. Chrestensen, 316 U.S. 52 (1942). See Bigelow v. Virginia, 421 U.S. 809 (1975); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976); Linmark Assocs., Inc. v. Willingboro, 431 U.S. 85 (1977); Carey v. Population Servs. Int'l, 431 U.S. 678 (1977). See also John Donnelly & Sons v. Outdoor Advertising Bd., 369 Mass. 206, 225-228 (1975). To sum up the development: The Court is prepared to go a considerable distance to preserve "the free flow of commercial information" (Virginia State Bd. of Pharmacy, supra at 764) against restrictions by government. The principle is subject to exceptions for deceptive, misleading, or false statements, and statements proposing illegal transactions; and special considerations are understood to apply to communications by electronic broadcast means. Also, the principle leaves room for reasonable regulations of the time, place, and manner of advertising. *fn3 The Court has indicated that more drastic regulations approaching or encompassing substantial prohibitions may be justified on a demonstration of societal interests overcoming the values inherent in the relatively untrammeled publication and receipt of the information. *fn4 It is likely that no rule against "prior restraint," such as applies to noncommercial discourse, will be thought relevant to advertising; so also the notion of "overbreadth" appears inapposite, so that each litigation will be decided by reference to the particular impact of the given legislation or administrative regulation on the parties, not on a consideration of the range of the restraints that could be threatened under it. *fn5

In defense of the validity of Senate No. 1718 as it would bear on the claims of the retailer and consumers above mentioned, one could urge that it was only a regulation of place or manner. To be sure, the prohibition would not be total. Yet there would be a loss of access by members of the public to comparative price information. *fn6 Accordingly, solid justification for the legislative restriction might be demanded, and whether that could be furnished we do not now have the means to Judge. *fn7 It is suggested by one of the friends of the court that the proposed statute would reduce price competition, thus preventing domination of the field by the strongest competitors and helping to "stabilize" the industry; a collateral benefit claimed for the statute is that it would work against the consumption, or over-consumption, of alcohol. *fn8 But these are merely casual predictions as to how the legislation might operate in a field already extensively regulated. *fn9 We add that justifications of the kind just described would have to contend with some apparent preference in the Supreme Court cases for a free market, *fn10 as well as with a suggestion in those cases that the First Amendment itself expresses a bias against keeping the public uninformed as part of an ostensible effort to better their condition. *fn11

Section 2 of the Twenty-first Amendment, although speaking only of transportation and importation of liquor, *fn12 was early said to strengthen the State's police power in the regulation of the subject, but to what extent, the decisions did not reveal. The case of California v. LaRue, 409 U.S. 109 (1972), which validated certain regulations of conduct and expression at licensed bars, may be proof of the persistence of this idea in the particular context. (See, following the LaRue case, Revere v. Aucella, 369 Mass. 138 [1975], appeal dismissed, sub nom. Charger Invs. Inc. v. Corbett, 429 U.S. 877 [1976]. *fn13) More recently, stress has been laid on the fact that the Twenty-first Amendment does not modify the Bill of Rights as to local liquor regulations. See Craig v. Boren, 429 U.S. 190, 204-210 (1976), a decision striking down on equal protection grounds sex discrimination in the sale of beer. See also Women's Liberation Union v. Israel, 512 F.2d 106 (1st Cir. 1975); White v. Fleming, 522 F.2d 730 (7th Cir. 1975). The guaranties of procedural due process and equal protection regarding race have been applied without diminishment despite a liquor context. See Wisconsin v. Constantineau, 400 U.S. 433 (1971); Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). *fn14 First Amendment protection of commercial speech may remain similarly undiminished by the Twenty-first in the situation of the in-State retailer considered so far in this opinion.

Senate No. 1718, however, by its terms appears to comprehend a prohibition of price advertising in the Commonwealth at the instance of out-of-State firms (other than in-trade publications, or by brand owners in general publications). The Twenty-first Amendment lifts various limitations on State power imposed by the commerce clause, and the Commonwealth has in fact controlled certain importations across its borders (see G. L. c. 138, §§ 18-18A). It could be argued that Senate No. 1718 is in aid of the enforcement of an exclusionary policy permitted by the Amendment. The argument has weight, but again facts and reasons would have to be adduced and established. *fn15 Advertisements with price information would not themselves propose illegal transactions, since residents of the Commonwealth are not barred from purchasing liquor elsewhere, e.g., for consumption where purchased. *fn16 Such advertisements would, indeed, carry political intelligence in the sense that they might lead citizens of the Commonwealth to reconsider the wisdom of the current policy on importations or of the present system of liquor regulation in the Commonwealth. In all events, it might be found that a legal distinction was justified between, say, an out-of-State retailer attempting to distribute in the Commonwealth ...


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