44 LIQUORMART, INC. AND PEOPLES SUPER LIQUOR STORES, INC., Plaintiffs,Appellees, v. STATE OF RHODE ISLAND, Defendant, Appellee, RHODE ISLANDLIQUOR STORES ASSOCIATION, Intervenor, Appellant. 44 LIQUORMART, INC. ANDPEOPLES SUPER LIQUOR STORES, INC., Plaintiffs, Appellees, v. STATE OF RHODEISLAND, 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Island, that did not ratify the Eighteenth Amendment, and was among the earliest to ratify the Twenty-First [*6] that repealed it, in 1956 adopted two statutes, assertedly aimed at promoting temperance, forbidding advertising the price of intoxicating liquor, except at the place of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 anyalcoholic 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 tototally 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 wouldtend 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 therights 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 yieldpositive 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 notmore extensive than is necessary." There is a further question with regard to local advertising byan 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
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