In a city famous for Bourbon Street, Pat O’Brien’s Hurricane daiquiris, and the storied Carousel Bar, regulators have banned alcohol advertising. New Orleans’ Regional Transit Authority’s (RTA) new Advertising Content Policy allows paid ads for “lawful goods and services” except alcohol, and prohibits ads on buses, streetcars, and ferries that depict “the consumption of alcoholic beverages or signs of excessive alcohol intoxication.” It’s not simply a bad idea; it’s also unconstitutional.
In the preamble to its Content Policy, RTA concedes that the policy “is a significant departure from current advertising practices” but contends that the change is needed to “promote messaging that aligns with the public good and welfare of New Orleans residents and visitors.” The agency provides no support for its conclusion that alcohol ads imperil the public good. It cites no public hearings, no empirical studies; it merely asserts that the change is “aligned with industry-standard advertising policies.”
The new rule prohibits speech not because it is false or misleading, or promotes illegal activity, but based solely on its disfavored content and the government’s paternalistic view of the public good. 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.”
Typical of regulators in cities like New York and Berkeley, RTA takes quite a cavalier approach to commercial speech, viewing it as less worthy than other types of speech. The U.S. Supreme Court strongly disagrees, stating 44 years ago that a “consumer’s interest in the free flow of commercial information … may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.”
Over the past four decades, protection of commercial speech has been on an upward trajectory at the Supreme Court. In that time, the Court has struck down government limits on price advertising and bans on alcohol content on beer labels. When the government restricts commercial speech because it disagrees “with the message it conveys,” the Court has held that such actions must receive “heightened” constitutional scrutiny.
To survive a First Amendment challenge, RTA would need to prove that the rule directly and materially advances a substantial government interest and is no more extensive than necessary to achieve that goal. Of the eight “goals and objectives” the Content Policy enumerates, “avoiding content that the community could view as inappropriate or harmful to the public” seems the only possible basis for the ban on alcohol ads. Whether that is even a legitimate, much less substantial, interest is debatable, but we’ll assume for argument’s sake that it is.
Even if the Content Policy invokes a substantial interest, it’s not advancing that interest “in a direct and material way.” To meet this burden, RTA must offer more than mere speculation or conjecture. It must show that “the harms it recites are real” and that the ban “significantly reduces” those harms. Neither the Content Policy nor the introductory memo offer any evidence that alcohol advertising harms the public. RTA simply offers a perception of harm, which is at best pure speculation.
The Content Policy’s prohibition on alcohol ads is in fact at odds with several of the Content Policy’s own stated goals. The ban eliminates advertising not only for beer, wine, and liquor products, but also any depictions of alcohol in New Orleans’ many bars and restaurants. That substantial loss of advertisements directly undermines the goal of “Increas[ing] advertising revenue.” And by favoring ads for other types of beverages, the ban also directly violates RTA’s goal of “Avoiding unintentional appearance of favoritism, association with, or bias towards any group, movement, or viewpoint.” The Content Policy’s internal incoherence renders it “irrational and ineffective,” as the Eighth Circuit put it when striking down a Missouri regulation on alcohol producers’ speech in January.
Finally, the Content Policy restricts more speech than necessary to achieve RTA’s stated goal. First, if RTA is most concerned about the public-safety implications of public drunkenness, as it infers in the section on alcohol ads, then it could have limited its ban to ads that encourage or depict public drunkenness. Second, if RTA wishes to avoid the appearance of endorsing alcohol consumption, it could solve that problem with more speech, either in the form of its own public-service announcements or by requiring a disclaimer on alcohol ads. The Content Policy already reserves the right to require a disclaimer that “such advertising is paid for by the advertiser” for any transit advertising, but that only further undermines the need to ban speech.
At bottom, RTA’s paternalism flouts the First Amendment. As the Supreme Court has repeatedly recognized, States can easily advance their interests in regulating alcohol sales without restricting speech. If the City wants to reduce harmful conduct it can regulate that conduct. But if the First Amendment means anything, it means that regulating speech must be a last—not first—resort. When it comes to truthful, non-misleading commercial speech, the Big Easy must laissez les bons temps rouler.
Also published by Forbes.com on WLF’s contributor page.