One of the more interesing conflicts to emerge in the nation's re-awakened culture war over beverage alcohol is the recent and ongoing symbolic struggle over whether liquor ads should or should not appear on TV.

There is no law against TV liquor ads of course -- not to mention that the U.S. Constitution's 1st Amendment backs-up the spirits industry's right to the airwaves.

Neo-drys however contend that kids will be harmed by exposure to such ads.

Really?

Given what kids nowadays can be exposed to on TV/cable-TV, movies, CDs, radio, and the net/web--many Americans may find it hard to see such neo-dry anxieties as anything beyond merely quaint.

To my eye at least, the issue is more accurately viewed as part of a longstanding symbolic tug of war over alcohol's appropriate cultural definition in American society.

TV liquor ads in effect grant beverage alcohol in its most concentrated commerically available form a new modicum of symbolic domestication or legitimacy.

And it's that perceived threat, I would suggest (and not fears about the severe imperilment of the nation's youth), that provides the skirmish's important cultural subtext.

Reasonable people may disagree of course on whether national life is better served by relatively demonizing or relatively domesticating beverage alcohol.

What's intriguing about current developments in American sentiment is that beverage alcohol shows signs of (a) becoming increasingly domesticated in that part of the population that has declined to demonized it, while at the same time shows signs of (b) becoming increasingly demonized in another part of the population that has declined to domesticate it.

The resulting widening cultural fissure in turn occasions conflicts like the TV-liquor-ads issue.

And this one promises to be with us for a while--pitting the industry's (and the citizenry's) free-expression rights against an inflated vision of social control prerogatives maintained by corps of emergent neo-dry, moral entrepreneurs.

The skirmish began in early June of 1996 when Seagram started running ads for its Crown Royal Canadian whiskey on KRIS-TV, NBC's affiliate in Corpus Christi, Texas.¹

Airing the ads marked the end of an almost half-century-long, self-imposed ban on broadcast advertising by the spirits industry.

Both beer and wine, of course, advertise on TV and radio.

Fred Meister--President and CEO of DISCUS ("Distilled Spirits Council of the United States," the trade association representing producers and marketers of distilled spirits sold in the U.S.)--explained that [1] a shot of spirits, [2] a can of beer, and [3] a glass of wine all contained about the same amount of absolute alcohol ("the equivalency principle").^2,3

Why then, asked Meister, muffle the spirits industry vis-a-vis the other two beverage classes?

It's a good question.

But the neo-dry camp doesn't frame the issue in quite the same terms-- indeed, more than a few neo-drys would probably happily grant the equivalency principle to Meister--say, as part of an argument that drinking beer is at least as, or even more, harmful than drinking spirits.⁴ The equivalency principle is a double-edged rhetorical sword.

Instead, neo-drys prefer a hold-the-line rhetorical stance toward the liquor-ads issue--i.e., they regard any would-be wet-direction shift in alcohol's symbolic status quo in American culture as a call to arms.

And to arms they flocked!

It took less than a full month's time for the Center for Science in the Public Interest (CSPI)--one of the nation's most vocal neo-dry organizations--to orchestrate a full-page ad in the Northeast edition of The New York Times imploring Seagram to pull the commercials. According to CSPI's e-zine, Booze News, some 58 "health-advocacy and consumer organizations and individuals" participated in this symbolic event.⁵

The ad--which was framed as an open letter to Edgar Bronfman, Jr., Seagram's CEO--argued in part:

Instead of adding to the avalanche of beer advertising that now helps bury a tragic number of children, we ask you, in the name of true fairness, to exert responsible corporate leadership and immediately pull your TV spots off the air.


The ad's roster of supporting and contributing organizations apparently included the American Public Health Association, American Academy of Pediatrics, Students Against Drunk Driving, Community Anti-Drug Coalitions of America, Consumer Federation of America, Texans' War on Drugs, Texas PTA, the Christopher D. Smithers Foundation, the S.H. Cowell Foundation, the Marin Institute for the Prevention of Alcohol and Other Drug Problems, and the National Association for Public Health Policy. Co-signing individuals included Sen. Robert Byrd (D-WV), Rep. Joseph P. Kennedy II (D-MA), and 10 more members of Congress.

President Clinton had called for a reinstatement of the ban in his Saturday radio broadcast of 15 June 96, hardly two weeks after the ads first aired. By April of this year the President had asked Federal Communications Commission (FCC) chair, Reed Hundt, to explore ways to keep liquor ads off the airwaves.⁶

The issue reached a culmination of sorts at the FCC's meeting of 9 July 97, when the Commission's four-member panel voted 2-to-2 on a resolution calling for a "Notice of Inquiry" that would authorize a formal FCC investigation of the liquor ads issue.

The tie-vote, of course, meant the proposal was defeated.

Nay-voting Commissioner, Rachelle Chong, offered a clearsighted statement⁷ on the issue, highlighting the difference between the FCC's regulatory authority, on the one hand, and, on the other, the legislative agenda that the proposed inquiry implied.

It was Congress's role and not the FCC's, Chong explained, to seek such an investigation should one be desired.

As it happened, the FCC's decision came less than two months after the U.S. Supreme Court voted unanimously to strike down a Rhode Island law prohibiting the advertisment of price schedules at low-cost Liquormart outlets. Rhode Island justified its statute on grounds of the promotion of temperate alcohol use.⁸

Taken together, the FCC's no-study vote and the Supreme Court's Rhode Island decision offered favorable indications the U.S. Constitution's 1st Amendment was in good working order respecting beverage alcohol.

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But neo-drys have by no means given up the ship on this one!

When the FCC voted down the "Notice of Inquiry," George Hacker, Jr., director of CSPI's Alcohol Policies Project, promptly issued a statement charging nay-voting FCC Commissioners James Quello and Rachelle Chong with making "...a mockery of the Commission's responsibility to require that broadcasters serve the public interest."

Hacker cited his back-up support:

In their votes against the Notice of Inquiry, Commissioners Quello and Chong have ignored the wisdom of President Clinton, Attorney General Janet Reno, thirteen state attorneys general, two governors, the Chairman, and hundreds of public interest organizations. They have listened only to the voices of big liquor and big advertisers.

And he closed his statement by calling upon President Clinton to appoint new FCC Commissioners "more sensitive to the rights of children."

Hacker had a strategic point.

By the July 9th vote, three of the four sitting FCC Commissioners were already scheduled for replacement--and a fifth seat was vacant as well.

Senate Commerce Committee confirmation hearings for the President's nominee for the FCC chair (William Kennard) are scheduled for 30 September and 1 October 97.⁹

Only yea-voting Commissioner Susan Ness will survive the changeover.

The current issue of CSPI's Booze News (Vol. 9, No. 1, Summer 1997) reports that the group is in the process of surveying the four Commissioner-designates regarding their dispositions toward the liquor ads issue.

We can be pretty confident that CSPI & its neo-dry consortium will be bringing pressure on the new FCC panel once the appointments process is completed.

Booze News latest issue also reports with favor:

• that Rep. Joseph Kennedy has introduced a House Resolution calling for the FCC to commence an investigation of the liquor ads issue¹⁰ and

• that the U.S. Supreme Court decided in April 97 not to review--and therefore to let stand--a U.S. 4th Circuit Court decision upholding a 1994 Baltimore ordinance banning alcohol & tobacco billboards in some parts of the city.

Kennedy's measure (which one RANES' source, incidentally, has described as unlikely to pass) speaks to Commissioner Chong's point that a Congressional mandate is necessary for such an enterprise.

The Baltimore decision, in turn, shows that the court is willing to countenance at least limited restrictions on free speech--defined in this case by selective city geography.¹¹

Just today (9/17/97), moreover, CSPI's webpage posted a proud announcement that Chicago has banned all alcohol and tobacco advertising on the city's 4,278 authorized billboards. According to the CSPI post, "Mayor Richard Daley personally lobbied city aldermen to support the ban that passed 47-1."

If, as the CSPI report has it, the Chicago ban is city-wide and covers all billboards, then its measure may push the envelope defined by the Baltimore case's Court tolerance of a nonuniversal proscription.

All of which would seem to suggest that though Round 1 of the liquor-ads issue may be over, the bell for Round 2 is probably just about to ring.

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FOOTNOTES:

¹ See CSPI, press release, "New York Times Ad Urges Seagram To Stop TV Liquor Commercials," 2 August 1996.

² See DISCUS, press release, "Distillers Change Advertising Code to Advance Equal Treatment," 7 November 96.

³ Re the equivalency principle, see DISCUS, fact sheet, "Beverage Alcohol Equivalence," 1 November 96.

⁴ For instance, Alan Moseley's article on the liquor-ads debate (see "Trading in the First Amendment: Clinton's Policy on Liquor Ads and Why His Law Degree Doesn't Show," The Media Institute, April 97) reports that Karolyn Nunnallee, president elect of Mothers Against Drunk Driving, surprised reporters by criticizing the reaction against the liquor ads. Moseley quotes Nunnallee's statement to the Associated Press to the effect that:

When beer is the No. 1 alcoholic beverage of choice among our youth, it just doesn't make sense that these beer ads would not be targeted also.


⁵ The ad appeared on 2 August 1996--see CSPI press release, "New York Times Ad Urges Seagram To Stop TV Liquor Commercials," 2 August 1996.

⁶ Moseley, Ibid., writes:

...on Tuesday April 1st President Clinton demanded that the liquor industry reimpose the ban. Wielding a not-so-veiled threat of direct government censorship of liquor advertising, Clinton made it clear that,for a variety of vaguely "pro-family" reasons, he would do everything in his considerable power to prevent liquor ads from appearing in the broadcast media. Urging the FCC and its chairman Reed Hundt to "consider any and all actions" to prevent advertising of distilled spirits on TV and radio, Clinton laid bare his constitutional position: when it comes to liquor ads, the First Amendment will not apply.


⁷ See Chong, "Comments of Commissioner Rachelle Chong at FCC Agenda Meeting," 9 July 1997.

⁸ Though their vote was unanimous in 44 Liquormart v. Rhode Island (116 S. Ct. 1495), the Court's Justices arrived at their decisions via different paths--as legal analyst Tony Mauro's summary account explains:

Justices John Paul Stevens, Anthony Kennedy, David Souter and Ruth Bader Ginsburg appeared to adopt a stricter standard for reviewing regulation of commercial speech than the so-called "Central Hudson test" adopted in 1980, which takes into account whether the government's interest is substantial, the regulation is limited, and the advertising is lawful and not misleading. Justices Sandra Day O'Connor, Stephen Breyer and Chief Justice William Rehnquist appeared content to apply Central Hudson to strike down the law. Justice Antonin Scalia said he didn't much like Central Hudson but agreed with the judgment. And Justice Clarence Thomas said Central Hudson doesn't protect commercial speech enough. (SOURCE: Supreme Court Review 95-96 Term, First Amendment Center, Supreme Court Files)


⁹ Should the Senate Commerce Committee confirm them, Chair Reed Hundt (who has stepped down a year early) will be replaced by current FCC General Counsel, Kennard; nay-voting Commissioners Rachelle Chong and James Quello will be replaced, respectively, by Michael Powell and Gloria Tristani. By law, FCC Presidential appointments must go to two Republicans and two Democrats--Harold Furtchgott- Roth, a House economist, is slated to fill the remaining Republican seat. President Clinton has reappointed Commissioner Susan Ness to a new five-year term.

¹⁰ The Booze News account gave me the impression that Kennedy's measure had been introcuced this past summer. It appears on further checkeing, however, that it was introduced in summer, 1996.

¹¹ One Court-watching source summarized the Court's action on the Baltimore case as follows:

The United States Supreme Court declined Monday, April 28, [1997] to review a decision by a federal appeals court upholding a Baltimore ban on billboard advertising for tobacco and alcohol. In 1995, the U.S. Court of Appeals for the 4th Circuit ruled that two Baltimore ordinances banning alcohol and tobacco advertising on billboards in certain locations did not violate the First Amendment.

On appeal, the U.S. Supreme Court ordered the 4th Circuit to review its decision in light of the Court's recent decision in 44 Liquormart, Inc. v. Rhode Island, 116 S.Ct. 1495 (1996). In 44 Liquormart, the Court held that a blanket ban on liquor-price advertisements violated the First Amendment.

In November of 1996, the 4th Circuit reanalyzed the Baltimore ordinances and again found them constitutional. The appeals court distinguished the 44 Liquormart decision on two grounds: First, the Rhode Island ban was total, while the Baltimore ban was a more limited "time, place, and manner" restriction. Second, the purpose of the Rhode Island law, according to the 4th Circuit, was to promote adult temperance, while the purpose of the Baltimore law was to prevent under-age consumption of harmful products.

The protection-of-minors rationale behind the Baltimore ordinance appeared to convince the 4th Circuit of the law's constitutionality. As New York University law professor Burt Neuborne has observed, "When you inject children into the picture, the First Amendment dissolves."

Neuborne, who is currently serving as legal counsel to the Association of National Advertisers, speculated that the decision not to review the Baltimore case indicated that the Court didn't want to stick itself into the middle of the tobacco issue while the situation is working itself out politically.

Cases: Anheuser-Busch, Inc. v. Schmoke (96-1428); Penn Advertising of Baltimore, Inc. v. Schmoke (96-1429).

For a summary of the 4th Circuit's most recent opinion upholding the Baltimore ordinances, see Vol. I, No. 52 of the Legal Watch.

SOURCE: "U.S. Supreme Court Refuses to Hear Baltimore Billboard-Banning Case," Legal Watch (Vol. II, No. 18), published by the Legal Department of THE FREEDOM FORUM FIRST AMENDMENT CENTER AT VANDERBILT UNIVERSITY.