Missouri’s antiquated speech restrictions are grounded in the fear that the public will respond to honest advertising with lawful conduct disfavored by the State—here, purchasing and consuming alcoholic beverages. But the First Amendment requires us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.”
—Cory Andrews, WLF Senior Litigation Counsel
WASHINGTON, DC—Washington Legal Foundation (WLF) today urged the U.S. Court of Appeals for the Eighth Circuit to affirm a district court’s ruling that—with benefit of a bench trial—invalidated on First Amendment grounds portions of a Missouri law that restricts truthful, non-misleading commercial speech. WLF’s brief was joined by the Show-Me Institute, a Missouri nonprofit dedicated to improving the quality of life for all Missouri citizens by advancing free-market solutions to state and local policy issues.
The case arises from a constitutional challenge to Missouri’s “tied-house” law. Enacted in 1934 in the wake of the repeal of Prohibition, the law prohibits alcohol manufacturers and distributors from giving any advertising-related support to alcohol retailers. Repeating the now-familiar claim of government regulators everywhere, Missouri contends on appeal that its tied-house law regulates conduct, not speech, and so is exempt from First Amendment scrutiny. But, as WLF’s brief shows, even laws aimed at proper regulatory concerns can unduly chill free speech rights protected by the First Amendment. By restricting the funding of speech, WLF contends, Missouri restricts speech.
WLF also argues that Missouri’s tied-house law cannot satisfy even the intermediate scrutiny prescribed by Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York. Under that test, Missouri must present solid evidence that the law’s speech restrictions directly advance its policy aims “to a material degree” and is narrowly tailored and no more restrictive than necessary. As WLF’s brief makes clear, the trial record in this case contains no such evidence.
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