Rhode Island Liquor Stores Ass'n v. Evening Call Pub. Co., 84-566-A

• Decision Date: 26 August 1985
• Docket Number: No. 84-566-A,84-566-A
• Parties: , 12 Media L. Rep. 1121 RHODE ISLAND LIQUOR STORES ASSOCIATION v. The EVENING CALL PUB. CO. d.b.a. The Woonsocket Call.
• Court: Rhode Island Supreme Court

Page 331

497 A.2d 331

54 USLW 2157, 12 Media L. Rep. 1121

RHODE ISLAND LIQUOR STORES ASSOCIATION v. The EVENING CALL PUB. CO. d.b.a. The Woonsocket Call.

No. 84-566-A.

Supreme Court of Rhode Island.

Aug. 26, 1985.

Bruce E. Vealey and Alan T. Dworkin, Alan T. Dworkin, Ltd., Cranston, for plaintiff.

William R. Grimm and Michael A. Silverstein, Hickley Allen Tobin & Silverstein, Providence, for defendant.

OPINION

KELLEHER, Justice.

This is an appeal from a Superior Court judgment upholding the constitutionality of G.L. 1956 (1976 Reenactment) § 3-8-8.1, which essentially prohibits the Rhode Island media from publishing any liquor-price information. ¹ At issue, for the second time this term, ² is the question of whether a state statute prohibiting dissemination of liquor-price information violates the Federal Constitution.

The facts of this case are not in dispute, the parties having previously consented to have the trial justice pass on the constitutionality of § 3-8-8.1 upon an agreed statement of facts. By its complaint, plaintiff Rhode Island Liquor Stores Association (the association) seeks to permanently enjoin the Woonsocket Call (the Call), from soliciting or publishing advertisements setting forth the price of alcoholic beverages. Judicial involvement with this case dates back to June 17, 1975, when a Superior Court justice denied the association's request for a preliminary injunction, asserting that the statute was "presumptively unconstitutional." In a written decision filed in November 1984 another trial justice permanently enjoined the Call "from any solicitation, acceptance or publication of any advertisement of the price or which shall make reference to the price of any alcoholic beverages." Subsequently, on December 18, 1984, a third Superior Court trial justice granted the Call's motion to suspend the injunction pending appeal to this court. We then denied a motion by the association to restore the injunction pending appeal. However, since we conclude that § 3-8-8.1 is a constitutionally valid exercise of the state's police power, the Call's appeal is denied and the judgment permanently enjoining the Call from publishing liquor-price advertisements is affirmed.

The parties' agreed statement of facts reveals that the Call, on or about June 4, 1975, published within the State of Rhode Island an advertisement for Labonte's Package Store, a Massachusetts retailer of alcoholic beverages whose place of business is Millville, Massachusetts. ³ Millville, a south-central Massachusetts community adjoining our northern border, is a short drive from Woonsocket, North Smithfield, and other northern Rhode Island communities. This advertisement displayed a list of various alcoholic beverages and stated the trade name as well as the price of each item for sale. The truthfulness of the information in the advertisement is not in issue. The agreed statement of facts further reveals that this advertisement directly violates § 3-8-8.1. Finally, the Call acknowledges that it has "continued to publish such advertisements."

On this appeal the Call argues that the entry of a permanent injunction was improper because there was no showing by the association that it would suffer irreparable injury absent such relief. The newspaper also urges us to find that § 3-8-8.1 impinges upon First Amendment freedoms by abridging the right of the press to publish truthful commercial speech. Rounding out its constitutional attack, the Call argues that the statute violates the commerce clause because it is "protectionist legislation" enacted to shield Rhode Island liquor retailers from out-of-state price competition. We shall first address the Call's contention that the trial justice erred in granting the permanent injunction because the association failed to demonstrate that it would suffer irreparable injury absent such equitable relief.

In considering this phase of the Call's appeal, it is important to keep in mind that the parties consented to have the trial justice pass on the association's prayer for a permanent injunction upon an agreed statement of facts. In the case before us now, the Call complains that the trial justice made no finding that the association was threatened with irreparable harm from the Call's advertising. It also argues that such a finding could not have been made because both the complaint and the evidence failed to address the issue of irreparable harm.

It is our belief, however, that since the Call agreed to have the trial justice decide the case on an agreed statement of facts, it has implicitly conceded that the association has standing to seek an injunction permanently enjoining the Call from soliciting or publishing advertisements setting forth the price of alcoholic beverages. It is inconsistent for the Call first to consent to have the constitutionality of § 3-8-8.1 determined on an agreed statement of facts and then later to claim that the resulting injunction was improperly granted because the association failed to demonstrate that it would suffer irreparable injury absent such equitable relief. If in fact the Call believed that the association lacked standing to challenge the newspaper's dissemination of alcohol-price information, it should have voiced its objection at the trial-court level in lieu of proceeding on an agreed statement of facts. Since we conclude that the entry of the permanent injunction was proper, we may now turn to the constitutional questions involved in this case.

The Call contends that the liquor-price advertising at issue in this case is commercial speech ⁴ entitled to First Amendment protection and that § 3-8-8.1 does not survive the intermediate level of constitutional scrutiny articulated by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). The association apparently concedes that § 3-8-8.1 proscribes commercial speech, but it urges us to uphold the constitutionality of the statute because it complies with the four-facet Central Hudson test. It is evident that both parties, and indeed the trial justice, are of the belief that Central Hudson is the dispositive authority on the issues in this case. We also base our decision, ultimately, upon the application of the Supreme Court's analysis in Central Hudson.

"The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation." Central Hudson, 447 U.S. at 563, 100 S.Ct. at 2350, 65 L.Ed.2d at 349. With this balancing test in mind, the Court adopted a four-facet analysis for assessing the validity of restrictions on commercial speech. That analysis can be summarized as follows: (1) is the commercial speech protected by the First Amendment; that is, does it concern lawful activity, and is it not misleading? (2) is the asserted governmental interest substantial? (3) does the regulation directly advance the governmental interest asserted? and (4) is the regulation more extensive than is necessary to serve the governmental interest?

There is no dispute in the instant case that the commercial speech in question involves lawful activity. As we indicated in S & S Liquor, see note 2, supra, the sale and the consumption of alcoholic beverages are lawful within the State of Rhode Island. General Laws 1956 (1976 Reenactment) title 3. Also, the veracity of this pricing information is not an issue in this case.

In S & S Liquor we had "little difficulty in finding that the asserted governmental interests, herein described as the promotion of temperance and the reasonable control of the traffic in alcoholic beverages" were substantial. Both § 3-8-7, which was under attack in S & S Liquor, and § 3-8-8.1, the subject of review in the instant case, are part of the same title, the declared purpose of which is "the promotion of temperance and for the reasonable control of the traffic in alcoholic beverages." General Laws 1956 (1976 Reenactment) § 3-1-5. Thus the asserted governmental interests supporting each section are identical.

The Call, although conceding that these "purported" state objectives are substantial, argues that the limited nature of the advertisement ban chosen is so grossly disproportionate to the stated goal as to raise substantial doubts about the statute's real purpose. ⁵ But a valid exercise of legislative power will not be invalidated because certain legislators may have had invalid motives (protecting in-state liquor retailers from out-of-state price competition) when the legislation in question was enacted. Holmes v. Farmer, --- R.I. ---, ---, 475 A.2d 976, 988-89 (1984) (Kelleher, J., concurring). The declared purpose of title 3 here, as in S & S Liquor, reflects the "asserted governmental interest." In determining the constitutionality of a governmental intrusion on protected commercial speech, Central Hudson instructs that we look to the "asserted governmental interest," not the hypothetical political motivation. Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351, 65 L.Ed.2d at 351. Once again, we have "little difficulty" in finding that the asserted governmental interests are substantial.

The crucial question in this case, as it was in S & S Liquor, is whether the statute survives analysis under the third facet of the Central Hudson test. Stated more specifically, does the price-advertisement ban directly advance the state's interests in promoting temperance and controlling the traffic in alcoholic beverages? Our brother Weisberger apparently believes that § 3-8-8.1 is at best an indirect means of advancing Rhode Island's interests. But we do not read Central Hudson as requiring us to determine whether Rhode Island has chosen the best means to advance its interests; rather, the focus of the inquiry is whether the means chosen by the Legislature, despite the existence of other, perhaps more efficient...