Wednesday Writs: 21st Amendment Gets Liquored Up Edition

Photo by © O’Dea at Wikimedia Commons, CC BY-SA 4.0, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons

[WW1] Case of the Week: The 21st Amendment in 44 Liquormart v Rhode Island

Have you ever been in Rhode Island and seen an ad for some liquor for sale cheap and decided it was high time you became an alcoholic? Well, blame the Supreme Court for that. Rhode Island tried to save you from that fate.

Back in the olden days of the early 90s, there existed in our tiniest state a law prohibiting ads for alcohol that included prices. The way the RI legislature figured it, once folks learned just how cheaply one could purchase some grape flavored Mad Dog 20/20, there was no stopping that steep and treacherous slide into full-blown drunkard territory. Sure, one could find this information by a stroll down the liquor aisle of their closest alcohol retailer, that can’t be helped, but what we cannot have are billboards, weekly circulars, or store marquees informing one of the possibilities of cheap booze.

In fact, one could not even hint at it.

So it was that an establishment known as 44 Liquormart found itself at odds with the law. The business put out an ad which showed snacks and mixers, alongside pictures of booze. For these cocktail accoutrements, the ad showed actual sale prices; next to the liquor, the ad simply read “WOW”. For this innuendo, the business was fined $400.

The fine and the law, which dated back to 1956, became our case of the week, 44 Liquormart, Inc., v Rhode Island. The company paid the fine, but then sought a declaratory judgment against the RI Liquor Control Administrator. The plaintiff asked the Federal District Court to find that the underlying statutes and regulations violated the First Amendment of the Constitution, among other things. The argument by the state was that they had a substantial and legitimate interest in promoting temperance, and that promoting cheap alcohol would result in increases sales and more drunkards. Expert testimony at the District Court level did not bear this out, however, and the court ruled the law did not directly advance a compelling state interest and was thus unconstitutional.

The First Circuit Court of Appeals reversed, finding “inherent merit” in the state’s assumption that advertisement of sale prices would cause more alcohol sales. Further, the Appeals Court agreed with the state’s other argument: that the 21st Amendment gave their statute an “added presumption of validity.”

The 21st Amendment is well known for ending the long national nightmare that was prohibition when it was ratified in 1933. But in addition to repealing the 18th amendment, the 21st Amendment also contains this line in Section 2:

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

This provision has been construed as giving states complete control over alcohol laws within their borders, and in fact several states remained “dry” long after the end of prohibition. In subsequent cases involving the 21st Amendment, the Supreme Court favored interpretations of Section 2 of the 21st Amendment which overrode other constitutional provisions. For example, the Court upheld state laws which imposed fees upon anyone who wished to import alcohol from other states, even though doing so would have otherwise run afoul of the Commerce Clause.

The Supreme Court’s decision was unanimous, sort of. Justice Stevens wrote an 8-part decision, each part joined by at least two and as many as five other justices. Stevens cited Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., in which the Court ruled against a Virginia law prohibiting the advertisement of prescription drug prices and held that the First Amendment protected accurate information disseminated to the public. The Court differentiated between laws which prohibit false or deceptive advertising that could potentially harm consumers and truthful advertising that the state simply thought might lead citizens to bad decision making: “…[A] State’s paternalistic assumption that the public will use truthful, nonmisleading commercial information unwisely cannot justify a decision to suppress it.”

The Court also acknowledged the right of states to require the inclusion of warnings or other information in advertisement, such as that found in print cigarette ads or the litany of side effects rattled off in commercials for prescription drugs. This allows informed decision making, reasoned the Court, and is not the same thing state of Rhode Island is doing. Rather, it seemed the state was using a ban on speech to advance an underlying policy concern which would “not only hinder consumer choice, but also impede debate over central issues of public policy.” Wrote Stevens: “The First Amendment directs 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.”

The Court then addressed the state’s argument that, despite the foregoing, the curtailed speech was nevertheless valid because it advanced the state’s interest in “temperance.” The justices looked to the state to make a showing that their action materially furthered their stated interest, a tall order, “…given the drastic nature of its chosen means-the wholesale suppression of truthful, nonmisleading information. Accordingly, we must determine whether the State has shown that the price advertising ban will significantly reduce alcohol consumption.”

Reviewing the evidence presented at the lower court, the Supremes concluded that the state had not met their burden. The Court conceded that there was a modest effect on the alcohol consumption of “temperate drinkers of modest means”, i.e., poor people who don’t drink much. But to those who abuse alcohol, the price was of little concern: “…the true alcoholic may simply reduce his purchases of other necessities.” The Court was not willing to uphold a ban on speech based on what it termed “speculation or conjecture” about a possible deterrent effect.

Additionally, the Court pointed out that the state could achieve its goal through means that did not suppress speech, such as through tax hikes, legislating purchase limits, or even educational campaigns. But the state had failed to convince the Court that there was a “reasonable fit” between its speech-suppressive statute and its stated goal of temperance.

The state next argued that because the evidence of effectiveness of their statute “could go both ways”, their “legislative judgment” should be given deference. Not only that, they threaten, but if they wanted to they could just ban the sale of alcohol completely. In advancing their “legislative judgment” argument, the state relied upon the case of Posadas de Puerto Rico Associates v. Tourism Co. of P. R, a 1986 decision which held that Puerto Rico was justified in using its “legislative judgment” in curtailing the advertisement of casinos. Justice Stevens’ opinion acknowledges Posadas supported Rhode Island here – then promptly overruled the previous decision.

The Court then discussed the 21st Amendment and its effect on other constitutional provisions. Rhode Island cited California v. LaRue, a 1972 case in which the Court ruled that a ban on alcohol sales in strip clubs was not an unconstitutional restraint on freedom of expression because the 21st Amendment gives states the power to regulate alcohol sales in its borders. Reflecting on LaRue, the Court concluded that case’s ruling did not rely on the 21st Amendment; the law at the center of the case prohibited nude dancing in places which sold alcohol, not necessarily the sale of alcohol at places that feature nude dancing. While this seems a distinction without a difference, the Court reasoned that LaRue should not have used the 21st Amendment as the crux of its analysis and “disavowed” the reasoning, if not the ultimate ruling in the case. Instead, the LaRue Court could have rested its conclusion on “the States’ inherent police powers … to restrict the kind of “bacchanalian revelries” described in the LaRue opinion regardless of whether alcoholic beverages are involved.” The state has the authority to prohibit the sale of alcohol in “inappropriate” places, even without the help of the 21st Amendment. There was no need to hinge the LaRue holding on the premise that a state may curtail free speech in service of the 21st. Therefore, concluded the Court, Rhode Island’s reliance on LaRue did not save them from the Court’s judgment: “…the Twenty-first Amendment does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment. The Twenty-first Amendment, therefore, cannot save Rhode Island’s ban on liquor price advertising.”

No Justice dissented from this ruling, but several wrote separately. Justice Scalia wrote that while he agreed with Stevens’ rejection of “paternalistic” government, he found it just as “paternalistic” for the Court to dictate to the states what laws its people may enact. Justice Thomas wrote to add that he found that in any case such as this, “in which the government’s asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace… such an “interest” is per se illegitimate and can no more justify regulation of “commercial” speech than it can justify regulation of “noncommercial” speech.” Justice O’Connor also concurred, but would have ruled on “narrower” grounds.

[WW2]
Speaking of amending the Constitution, keep in mind the (relatively) quick turnaround on the 21st Amendment was an exception,because it is really, really hard to do…purposefully so:

Article V of the Constitution lays out the ways it can be amended. There are two paths: one through Congress, and one through the states. In Congress, two-thirds of the Senate and two-thirds of the House of Representatives must vote to propose an amendment. Or, two-thirds of the states can petition the Congress to open a convention for proposing amendments. Any proposed amendment that comes out of it must then be approved by three-fourths of the states within a reasonable time. What makes for a “reasonable time” is not defined, but Congress has attached time limits, controversially, to some amendment proposals.

How hard is it to do all of that and actually amend the Constitution? Well, since the Bill of Rights was ratified in 1791, it’s only been accomplished 17 times.

[WW3]
Rep Matt Gaetz opposed a porn revenge law as a Florida legislator, because of course he did:

While serving in the Florida Legislature, U.S. Rep. Matt Gaetz opposed a bill meant to stop people from sharing sexually explicit images of their ex-lovers because Gaetz believed that recipients of those images had a right to share them, according to the sponsor of the legislation.

Former state Rep. Tom Goodson, a Republican from Brevard County, spent three years sponsoring legislation to outlaw nonconsensual pornography — sometimes called “revenge porn.”

And Goodson said Monday that Gaetz was the chief opponent to that legislation. Goodson said he remembered a meeting in which Gaetz said that if someone sends an intimate image to their romantic partner, then that image becomes the partner’s property to use however they want.

“Matt was absolutely against it. He thought the picture was his to do with what he wanted,” Goodson said. “He thought that any picture was his to use as he wanted to, as an expression of his rights.”

[WW4]
Originalism is basically racist, according to Calvin TerBeek:

At least five justices on the Supreme Court identify as originalists, meaning they believe judges must interpret the Constitution as it was understood when ratified. Originalism is ascendant everywhere: on SCOTUS, on the lower courts stacked with Donald Trump’s nominees, in law schools and Congress and state legislatures. The Republican Party endorses originalism in its platform every four years. GOP politicians wield the doctrine to justify their own policies to attack those favored by Democrats. Progressive lawyers may fight, and Democrats may gripe about it, but originalism is clearly here to stay.

All of which raises an important question: Where, exactly, did originalism come from? Its proponents frequently assert that it is a reaction to freewheeling liberal judicial activists imposing their own views on the Constitution through an approach often called “living constitutionalism.” In a groundbreaking article published in American Political Science Review, however, University of Chicago Ph.D. candidate Calvin TerBeek argues that modern originalism arose out of the backlash to Brown v. Board of Education, the landmark 1954 Supreme Court decision prohibiting public school segregation. TerBeek’s research—which spanned 14 archival collections, thousands of newspapers and magazines, and interviews with key players—all points in one direction: Originalism has fundamentally racist roots.

[WW5]
Wisconsin sends Sidney Powell the bill for her failed post-election lawsuits:

Wisconsin Gov. Tony Evers asked a federal court Wednesday to force far-right attorney Sidney Powell and her client and co-counsel to be sanctioned and pay more than $100,000 in legal fees over a failed lawsuit that sought to overturn the state’s presidential results, as Powell and other lawyers who led failed post-election cases now face blowback and potential consequences across the country.

Evers asked for the La Crosse County Republican Party chairman who brought the case, as well as Powell and other attorneys, to pay $106,780 in attorney’s fees the state incurred while defending themselves against the lawsuit, which failed in both a lower court and at the U.S. Supreme Court.

In an email to Forbes, Powell said Evers’ request was “baseless, improper, and out of time,” adding, “The case is closed.”

In addition to the attorney’s fees, Evers also asked the court to sanction the plaintiffs and counsel, which he asked to be through paying a fine either to the court or to a voting rights organization in Wisconsin.

The lawsuit was filed “without the support of credible, relevant, or remotely admissible evidence,” Evers’ attorneys wrote, and was “based entirely upon inadmissible, outlandish, and speculative testimony” that alleged widespread voter fraud but “obviously lacked any plausible or factual basis.”

[WW6]
The Ever Given might be unstuck from the Suez, but the legal claims are stacking up as the ship still isn’t anywhere near delivering it’s load of cargo.

The British International Freight Association (BIFA) has urged forwarders with cargo on board the Ever Given to begin General Average (GA) procedures with their shippers. The vessel’s owner declared GA last Thursday. Robert Keen, director general of BIFA, said: “When our members receive notification that a General Average has been declared for a vessel, whatever the position, their first action must be to give the importer immediate notice.

“The appointed average adjusters will need to be in possession of completed guarantees and bond forms, or a cash deposit, before release of cargo, so it is vital that the importer takes immediate action. “Our advice to members is that, with General Average being declared, any standard marine policy will include General Average losses, so if the goods have been insured the importer should obtain a General Average guarantee from the insurers. “If no insurance has been organised, then a cash deposit will be needed,” he reminded BIFA members.

BIFA also reminded members that General Average was covered in its standard T&Cs – providing forwarders have incorporated these T&Cs in their contracts with clients. Clause 20D notes an “indemnity concerning General Average costs”, while Clause 22 states: “Where liability arises in respect of claims of a General Average nature in connection with the goods, the customer shall promptly provide security to the company, or to any other party designated by the company, in a form acceptable to the company.”

Ever Given remains at anchor in the Bitter Lakes area of the Suez Canal, where inspections have reportedly discovered damage to its bow, which needs to be repaired before it can continue its voyage to North Europe.

“These repairs are not, however, thought to be significant,” a casualty update from marine claims consultancy WK Webster said.

It has also emerged that, shortly after owner Shoe Kisen declared General Average, London law firm HFW filed an ADMA1 limitation of liability claim in the Admiralty Court, on behalf of the vessel owner, against Evergreen and “all other persons claiming or being entitled to claim damages by reason of the grounding of the M/V Ever Given along the Suez Canal”. The law firm declined to comment further.

However, the claim came amid reports that the Suez Canal Authority expected to file a damage claim for up $1bn.

“While this looks to be a highly overstated figure, it may serve to create further delay to the vessel’s departure from Suez, and possibly also to increase significantly the total amount sought to be adjusted in General Average,” added WK Webster.