Vice Squad
Thursday, August 26, 2004
 
Rubin v. Coors (1995)


The loyal Vice Squad reader writes, "Jim, just as we support vicarious and collective punishments in vice policy, so too, do we revel in vicarious and collective pleasure: please slake our thirst by revealing those vice policy-related documents that constituted your early morning reading." To such blandishments even one more steadfast than I could not remain unmoved. Forthwith: A couple weeks ago I mentioned a Supreme Court case, Rubin v. Coors Brewing, that invalidated a federal rule prohibiting beer producers from advertising or labeling the alcohol content of their beer (unless state law requires the provision of alcohol content information). Today I read the case. Though it is a little hard to discern, it seems that, strictly speaking, it was only the labeling ban that was really at stake.

Rubin v. Coors looks like a standard modern commercial speech case. The guidelines of Central Hudson are applied. Central Hudson allows regulation of non-misleading commercial speech for legal goods if (1) the government has a substantial interest served by the regulation, (2) the regulation directly advances that interest, and (3) the regulation is not more extensive than is necessary to serve that interest. In Rubin v. Coors, the Supreme Court found that the government's interest in preventing "strength wars" among brewers was indeed substantial. But it was on the next prong, that of directly serving the government interest, that the alcohol content labeling ban faltered. The Court's reasoning is that the overall federal alcohol regulatory structure is incoherent. Most states had not affirmatively prohibited the advertising of alcohol content, so by the terms of the federal rule, in much of the country, strength wars were permissible in advertising, though not in labeling. Given the advertising "loophole," the labeling ban would be unlikely to prevent a strength war. This conclusion is buttressed by the fact that a beer producer could still signal strength by naming its product a "malt liquor," and by the fact that wine and spirits producers were not similarly constrained.

While I said that the Court based its reasoning on overall policy "incoherence", the Court itself used the stronger (and, to be honest, I think inappropriate) term "irrationality".

The Court also noted that even if the labeling ban were able to advance the government's interest, it would still be unconstitutional, for failing to be narrowly tailored. There are options, including the direct limitation of alcohol content, that would serve the same ends as the labeling restrictions, without having the same effect on suppressing speech.

I am troubled by the Court's reasoning, which is quite similar to that used in a later case concerning casino advertising. Policy incoherence alone has been granted Constitutional significance via the Central Hudson standard: if various policies with respect to advertising are partly inconsistent, then the one that tends to be more restrictive can't do a good job of directly advancing the government interest, because the other policies allow methods of avoiding the restriction. Therefore, so the Court argues, the restrictive policy is an unconstitutional restraint upon commercial speech. The problem with this approach is that it forces all-or-nothing-style policies. Either all channels of commercial speech are restricted to serve the compelling interest, or none can be. And of course, one all-or-nothing-style policy that is generally allowed for vice control is to ban the vice entirely -- then, the activity is illegal, and its advertising receives no First Amendment protection at all. My own view is that the policy world is quite complex, and that a web of partly inconsistent policies is not necessarily "irrational." Along these lines, let me note one specific objection to the Court's opinion. The opinion states: "If combating strength wars were the goal, we would assume that Congress would regulate disclosure of alcohol content for the strongest beverages as well as for the weakest ones." Why make this assumption? At the time of Rubin v. Coors, a voluntary policy of no hard liquor TV advertising was in place. Many (all?) states had different licensing requirements for beer and wine versus hard liquor, so in many places where beer was sold, hard liquor wasn't even available. And so on. Incoherence does not imply irrationality.

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