846 F.3d 295
8th Cir.2017Background
- Missouri enacted a statute and two administrative regulations restricting certain alcohol advertising: prohibitions on advertising discounts outside a retailer (Discount Advertising Prohibition), advertising prices below retailer cost (Below Cost Advertising Prohibition), and rules limiting how producers/wholesalers may list retailers in ads (Single Retailer Advertising Prohibition Statute, Mo. Rev. Stat. § 311.070.4(10)).
- Plaintiffs (a broadcaster group, radio company, winery, and a food/drink establishment) sued state liquor regulators and the attorney general, alleging the provisions violate the First Amendment by banning truthful, non-misleading commercial speech and by compelling speech/association.
- Defendants acknowledged the restrictions target truthful commercial speech and that Missouri’s interest in promoting responsible drinking is substantial; the dispute focused on the Central Hudson prongs about direct advancement and narrow tailoring.
- The district court initially denied defendants’ 12(b)(6) motion, later denied plaintiffs’ summary judgment, then sua sponte granted the 12(b)(6) dismissal without explanation. Plaintiffs appealed the dismissal.
- The Eighth Circuit reviewed the 12(b)(6) dismissal de novo, accepting plaintiffs’ factual allegations and reasonable inferences, and reversed, holding the amended complaint plausibly pleaded First Amendment violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the advertising restrictions directly advance Missouri’s substantial interests (promoting responsible drinking, orderly marketplace). | The provisions do not materially advance those interests because they allow many of the same promotions (e.g., in-store discounts, generic promo terms, rebates for some manufacturers), producing irrational inconsistencies. | Advertising increases demand; a commonsense link exists between restricting promotional advertising and reducing irresponsible consumption. | Reversed dismissal — plaintiffs plausibly alleged the restrictions do not directly advance the state’s interests given internal inconsistencies and exemptions. |
| Whether the regulations are no more extensive than necessary under Central Hudson (narrow tailoring). | Less speech-restrictive alternatives exist (taxes, regulation of purchase, education campaigns); the rules are overbroad relative to the asserted harms. | The regulations are reasonable methods to curb advertising-driven demand; government need not adopt absolutely least restrictive means. | Reversed dismissal — plaintiffs pleaded sufficient facts that the rules are more extensive than necessary. |
| Whether the Single Retailer Advertising Statute unconstitutionally compels speech/association. | Conditioning the ability to name a retailer on listing multiple unaffiliated retailers and making the listing inconspicuous compels association and speech (right to refrain from speaking/associating). | The statute is conditional and limited; it regulates commercial advertising format and prevents favoritism/entanglement. | Reversed dismissal — plaintiffs plausibly alleged compelled speech/association claims. |
| Appropriate standard of review for content/speaker-based commercial speech after Sorrell. | Sorrell signals heightened scrutiny for content/speaker-based burdens; plaintiffs argued strict scrutiny applies. | Central Hudson remains the applicable doctrinal framework; content/speaker-based commercial restrictions should be analyzed under Central Hudson. | Court applies Central Hudson (following Eighth Circuit precedent) and resolves the case under its four prongs. |
Key Cases Cited
- Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (defines four-part test for commercial speech restrictions)
- Rubin v. Coors Brewing Co., 514 U.S. 476 (invalidating inconsistent alcohol-labeling/advertising regulation; government must show regulations directly advance interest)
- Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (examines fit between speech restriction and asserted public-health interest)
- 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (recognizes less restrictive alternatives to blanket price advertising bans)
- Sorrell v. IMS Health, Inc., 564 U.S. 552 (addresses heightened scrutiny for content- and speaker-based commercial speech burdens)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard for plausibility under Rule 12(b)(6))