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Inc. v. Rhode Island Liquormart (44 )

Justice Thomas's Per Se Approach

Unlike the other justices, Justice Thomas thought that the Central Hudson test had no application to a complete ban on truthful advertising such as Rhode Island's ban on alcohol price advertising. In his view:

In cases such as this, in which the government's asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace, the balancing test . . . should not be applied, in my view. Rather, such an `interest' is per se illegitimate and can no more justify regulation of `commercial' speech than it can justify regulation of `noncommercial' speech.
He reasoned that, in a number of cases, the Court has recognized that consumers have a strong interest in the free flow of truthful commercial information and that the First Amendment does not permit the government to protect consumers from truthful information which may lead consumers to make choices which the government thinks are "bad." Justice Thomas reasoned that there is no reason to distinguish between truthful commercial speech and other forms of speech. He also noted that the Central Hudson test has proved difficult to apply in the courts and has lead to inconsistent results. Thus, Justice Thomas favored a categorical rule under which "all attempts to dissuade legal choices by citizens by keeping them ignorant are impermissible." Under this approach, Rhode Island's complete ban on advertising of liquor prices clearly violated the First Amendment.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1995 to PresentInc. v. Rhode Island Liquormart (44 ) - Significance, Justice O'connor's Four Part Test, Justice Stevens's Modified Central Hudson Test