44 LIQUORMART INC AND PEOPLES SUPER LIQUOR STORES INC Plaintiffs Appellees v STATE OF RHODE ISLAND Defendant Appellee RHODE ISLAND LIQUOR STORES ASSOCIATION Intervenor Appellant 44 LIQUORMART INC AND PEOPLES SUPER LIQUOR STORES INC Plaintiffs Appellees v STATE OF RHODE ISLAND Defendant Appellant No 93 1893 No 93 1927 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT 39 F 3d 5 1994 U S App LEXIS 29658 22 Media L Rep 2409 October 24 1994 Decided SUBSEQUENT HISTORY Certiorari Denied May 13 1996 Reported at 1996 U S LEXIS 3020 PRIOR HISTORY 1 APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND Hon Raymond J Pettine Senior U S District Judge COUNSEL Lauren E Jones with whom Caroline C Cornwell Jones Associates William P Gasbarro and Robert M Brady were on brief for Rhode Island Liquor Stores Association Rebecca Tedford Partington Special Assistant Attorney General with whom Jeffrey B Pine Attorney General was on brief for State of Rhode Island Evan T Lawson with whom Lawson Weitzen was on brief for plaintiffs appellees JUDGES Before Cyr Circuit Judge Aldrich Senior Circuit Judge and Stahl Circuit Judge OPINIONBY ALDRICH OPINION 5 ALDRICH Senior Circuit Judge The State of Rhode Island that did not ratify the Eighteenth Amendment and was among the earliest to ratify the Twenty First 6 that repealed it in 1956 adopted two statutes assertedly aimed at promoting temperance forbidding advertising the price of intoxicating liquor except at the place of sale if sold within the state The declared purpose is the promotion of temperance and for the reasonable control of the traffic in alcoholic beverages R I Gen Laws 3 1 5 R I Gen Laws 3 8 7 provides 2 3 8 7 Advertising price of malt beverages cordials wine or distilled liquor No manufacturer wholesaler or shipper from without this state and no holder of a license issued under the provisions of this title and chapter shall cause or permit the advertising in any manner whatsoever of the price of any malt beverage cordials wine or distilled liquor offered for sale in this state provided however that the provisions of this section shall not apply to price signs or tags attached to or placed on merchandise for sale within the licensed premises in accordance with rules and regulations of the department Section 3 8 8 1 post enlarges this language to forbidding making reference to the price of any alcoholic beverage n1 that defendant Rhode Island Liquor Control Administrator a strict enforcer construes as including remote references such as WOW Footnotes n1 See also Liquor Control Adm Reg 32 End Footnotes In this action plaintiffs 44 Liquormart Inc and Peoples Super Liquor Stores Inc having sufficient 3 standing to attack these statutes in every particular seek a declaration against the Administrator hereinafter the State of unconstitutionality as contravening the First Amendment Rhode Island Liquor Stores Association Association has intervened as a party defendant After a bench trial in an extensive opinion the court found for plaintiffs Defendants appeal They succeed with respect to limiting advertising by Rhode Island vendors The stage it set below is described by the State The advertising ban directly advanced the governmental interest by increasing the cost of alcoholic beverages thereby lowering the amount of alcohol consumption by residents of the State of Rhode Island The State s power to totally ban any advertising about alcoholic beverages necessarily included the lesser power to restrict price advertising Further the State contended that plaintiffs in order to rely on the First Amendment must prove that the four part Central Hudson test could not be met Association a group of small liquor stores whose intervention as a co defendant was not opposed by the State alleged as its ground for intervening that if advertising of prices 4 were to be allowed its members would be obliged to participate in the advertising arena and would be at a definite disadvantage when matched up against retailers who hold multiple licenses This complaint was later bolstered by adding that competitive price advertising would tend to lower prices and that a more competitive market for alcohol might be considered an undesirable goal We start with the four issues that Central Hudson raises when a state s interest conflicts with the rights of a would be commercial speaker At the outset we must determine whether the expression is protected by the First Amendment I For commercial speech to come within that provision it at least must concern lawful activity and not be misleading II Next we ask whether the asserted governmental interest is substantial If both inquiries yield positive answers we must determine III whether the regulation directly advances the governmental interest asserted and IV whether it is not more extensive than is necessary to serve that interest Central Hudson Gas Electric Corp v Public Service Commission of New York 447 U S 557 566 65 L Ed 2d 341 100 S Ct 2343 1980 5 The ultimate purpose is to weigh the expression and the governmental interests served by its regulation Id at 563 I In the present case the first test raises no question II For the second it was stipulated The State of Rhode Island 7 has a substantial interest in regulating the sale of alcoholic beverages Plaintiffs concede that promoting temperance is such an interest The dispute accordingly is whether forbidding price advertising directly advances temperance and is not more extensive than is necessary There is a further question with regard to local advertising by an out of state vendor III Directly advances We start with the burden of proof The burden is on the party seeking suppression here the State Edenfield v Fane 123 L Ed 2d 543 113 S Ct 1792 1800 1993 But to what extent The district court held that it was an issue for it to decide unfettered between competing witnesses and since on its weighing the evidence the court was not persuaded that the State was correct it failed We do not think the burden that strict It is not correctness it is reasonableness In the first place the 6 term directly advances is not absolute Edenfield 113 S Ct at 1800 alleviate to a material degree Trustees of the State University of New York v Fox 492 U S 469 480 106 L Ed 2d 388 109 S Ct 3028 1989 reasonable fit See also Posadas de Puerto Rico Assoc v Tourism Co 478 U S 328 342 92 L Ed 2d 266 106 S Ct 2968 1986 reasonable And while the state has the burden in California v
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