Inc. v. Rhode Island Liquormart (44 )

In contrast to Justice O'Connor, Justice Stevens, who was joined in his opinion by Justices Kennedy and Ginsburg, proposed that the Central Hudson test be modified. While not abandoning that test entirely, Justice Stevens read the test more strictly than did Justice O'Connor. He reasoned that, in general, the Court has been more willing to uphold restrictions on commercial speech than on other forms of speech because the government has an interest in protecting consumers from commercial harms. However, he noted that such commercial harms are only present when the commercial speech is misleading, involves an illegal activity, or exerts "undue influence" over consumers. Because such concerns are not present when a company seeks to advertise using truthful information, under the Central Hudson test, laws which place a complete ban on truthful advertising should be examined by the Court with "special care" to ensure that they do not impermissibly restrict free speech. He noted that "speech prohibitions of this type will rarely survive constitutional review."

Applying his stricter version of the Central Hudson test, Justice Stevens concluded that the Rhode Island price advertising ban failed to meet both the third and fourth parts of the test. With respect to the third part, Justice Stevens found that there was no evidence that the advertising ban reduced consumption of alcoholic beverages. With respect to the fourth part of the test, Justice Stevens concluded, as did Justice O'Connor, that Rhode Island had a number of non-speech related means of reducing alcohol consumption, such as increased taxes, a limit on purchases of alcohol, or an educational campaign. Thus, Justice Stevens likewise concluded that the Rhode Island law was unconstitutional.