1. Majority Opinion
a. Yes. Upon reflection, Posadas is wrong because it allowed a
ban on ads that were truthful, non-misleading speech, and kept these
ads from reaching the public for fear that they would gamble more.
We conclude that a state legislature does not have the broad
discretion to suppress truthful, non-misleading info. for
paternalistic purposes that the Posadas majority was willing to
1. This sounds like Blackmun in his concurrence in Central
Hudson! Has the Court retreated from the majority approach of
Central Hudson? Dave says yes, to the extent that the Court allows
truthful, non-misleading info.
b. We abandon the “greater-includes-the-lesser” argument upheld
in Posadas because it is “inconsistent with both logic and
well-settled doctrine.” Specifically, we abandon this argument
because sometimes banning speech can be far more intrusive than
banning conduct. As a venerable proverb teaches, it may prove more
injurious to teach a man how to fish (speech) than to give a man a
c. Speech restrictions cannot be treated as simply another means
that the government may use to achieve prohibiting the conduct.
Thus, if a state does not want liquor, then it should ban liquor. It
should not prohibit commercial speech as an indirect means of
regulating liquor consumption. In other words, the state should
regulate the conduct if it has a problem with it, not the speech.
1. This is very important, Dave says. Applying this to the
Central Hudson case, one could argue that the legislature—instead of
banning the utilities’ commercial ads—should have set caps on the
amount of energy used by people (that way, the conduct—not the
speech—is being regulated, and the speech is not indirectly
regulating the conduct).
d. Finally, the state argues that it should be able to ban the
commercial speech because it pertains to a “vice” activity. But it
is too difficult to know what is and what is not a “vice.” Are
gasoline-fueled cars a vice? Is alcohol? Plus, states could just
label any commercial speech they desire as a “vice,” and regulate it.
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