“As today’s decision confirms, the First Amendment cannot abide regulations that seek to keep people in the dark for what the State perceives to be their own good.”
—Cory Andrews, WLF Vice President of Litigation

WASHINGTON, DC—Earlier today, the U.S. Court of Appeals for the Eighth Circuit affirmed a district court ruling that—with benefit of a bench trial—invalidated on First Amendment grounds portions of a Missouri law that restricted truthful, non-misleading commercial speech. The decision was a victory for Washington Legal Foundation (WLF), which filed an amicus curiae brief in the case urging affirmance. WLF’s brief was joined by the Show-Me Institute, a Missouri free-market nonprofit.

The case arose from a constitutional challenge to Missouri’s “tied-house” law. Enacted in 1934 in the wake of the repeal of Prohibition, the law prohibits alcohol manufacturers and distributors from giving any advertising-related support to alcohol retailers. Repeating the now-familiar claim of government regulators everywhere, Missouri claimed on appeal that its tied-house law regulates conduct, not speech, and so is exempt from First Amendment scrutiny. But, as WLF’s brief showed and the appeals court held, even laws aimed at proper regulatory concerns can unduly burden free-speech rights under the First Amendment.

The appeals court agreed with WLF that Missouri could not satisfy even the intermediate scrutiny prescribed by Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York. Under that test, Missouri must present solid evidence that the law’s speech restrictions directly advance its policy aims “to a material degree” and is narrowly tailored and no more restrictive than necessary. The trial record in this case contained no such evidence.

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