From the Winter 2002 issue of The News Media & The Law, page 24.
With a sedate Smirnoff vodka ad extolling the importance of responsible drinking tucked amid the sketches of the Dec. 22 episode of “Saturday Night Live,” NBC rejected a voluntary ban and broadcast the first hard liquor advertising across the nation’s airwaves since almost the dawn of television.
But several members of Congress aren’t celebrating.
“We hope that Congress will not have to become involved in this matter, but Congress has a responsibility to protect the public interest and the public airwaves,” Reps. Frank Wolf (R-Va.) and Lucille Roybal-Allard (D-Calif.) wrote to NBC officials in a Dec. 20 letter.
“Therefore, we must be candid and let you know that we are prepared to hold extensive hearings on alcohol advertising on television and to introduce legislation to replace the system of self-regulation.”
The two representatives wrote further that the network’s decision smacks of profiteering in the face of concerns about underage drinking, drunk driving and other social problems.
But First Amendment experts say Congress faces an uphill trek in forcing the liquor industry and broadcast networks to adhere to the once-voluntary advertising ban.
“It’s always risky, and I’m not sure how wise it is to speculate what Congress will do or not do,” said Richard Kaplar, vice president of the Media Institute in Washington, D.C. “But given the current political climate and other priorities, I can’t imagine that’s a real front burner issue in the minds of Americans right now.”
For decades, the broadcast networks and the Distilled Spirits Council abided by a voluntary agreement dating back to 1948 to not air advertisements promoting liquor. Spurred partly by a U.S. Supreme Court decision, the council decided in 1996 that it would no longer subscribe to the ban.
The court decision, a 1996 ruling in 44 Liquormart Inc. v. State of Rhode Island, determined that government officials could not prohibit truthful, non-misleading advertising regarding alcoholic beverages without infringing upon the First Amendment. In this case, Rhode Island had been enforcing two 1956 statutes that forbade the advertising of prices of alcoholic beverages.
All nine of the justices agreed the statutes failed the court’s commercial speech test from the 1980 case of Central Hudson Gas & Electric Corp v. Public Service Commission of N.Y. That test granted government the ability to restrict such commercial speech provided it could show substantial interest in regulating the speech, that the statute advances such an interest and that the regulation is narrowly tailored.
But not all agreed that the Central Hudson test was appropriate. Four justices — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Anthony Kennedy — said commercial speech bans could not be approved unless the speech is misleading or related to an unlawful activity. Justice Clarence Thomas contended that commercial speech deserves no less protection than noncommercial speech.
David Hudson, a research attorney with the Freedom Forum’s First Amendment Center in Nashville, Tenn., said the Court since then has considered commercial speech regulation with greater scrutiny. But it hasn’t flat out granted commercial speech the greatest protection.
“Central Hudson is still there,” Hudson said. “It’s taking blows, but it’s still standing.”
But 44 Liquormart opened the floodgates for liquor advertising. Since 1996, the distilled spirits industry has run thousands of ads on more than 2,000 radio stations and cable television programs over the past four years.
Irked by the sudden appearance of hard liquor ads, two members of the Federal Communication Commission in July 1997 attempted to spark an inquiry into liquor advertising on television and the radio. But the measure failed by a 2-2 vote.
But Kaplar noted that the specific issue — liquor advertisements on television — has never reached the courts because of the longstanding ban on the part of the distilled spirits council not to advertise on that medium. “Until 1996, when Seagrams decided it would start advertising, it wasn’t an issue at all,” he said. “And because it started on cable channels, it was not directly under the purview of FCC the same way for broadcasting channels in terms of license renewals.”
And he doubts that little more than “some saber rattling” will occur now.
In the deal NBC made with Diageo PLC, a British spirits company that owns Smirnoff vodka and other liquor manufacturers, all liquor ads aired over the next four months would only include “socially responsible” messages warning against alcohol abuse. Every fifth ad after that must include such a message.
All of the ads would be aired after 9 p.m. Eastern time or during late-night programming, presumably when most children would not be watching television.
The American Medical Association lashed out at NBC, calling the liquor ad decision “shockingly irresponsible” and praised the other networks for adhering to the ban. AMA chair-elect J. Edward Hill called NBC’s guidelines “preposterous.”
“Does NBC honestly think its only viewers at that hour are of legal drinking age?” Hill said.
Kaplar said he doubts any effort from Congress to force NBC to honor a ban it once embraced could withstand First Amendment scrutiny. He said the guidelines don’t market liquor to children and it’s not marketing an illegal product.
“The ads are limited to adult viewing times. What is the government’s substantial interest in preventing that?” — PT