Hardly a week passes without a reminder that the state tobacco lawsuits have had an enduring and corrupting effect on the rule of law. The legal travesty du jour involves yet another “sin” industry. This time the trial lawyers are hounding the purveyors of alcoholic beverages because of ads ostensibly targeted, “deliberately and recklessly,” at underage consumers.
Here’s the cast of characters: The plaintiffs are a class of parents and guardians of kids too young to drink but exposed to the ads. Representing the class are a pair of law firms: one headed by David Boies, the eminent litigator hired by the Justice Department to go after Microsoft; and a second headed by his son, David Boies III. The defendants include the Beer Institute and a number of large distillers and brewers such as Coors, Heineken, and Brown‐Forman. Interestingly, the two largest domestic beer producers, Anheuser‐Busch and Miller, a client of Boies senior, are not among the defendants.
Supposedly, the offending companies advertise in magazines “disproportionately read” by young people, place their products in movies seen by teens, make their Web sites accessible to minors, allude to college activities like “spring break,” and use cartoon characters — probably the same way that MetLife uses Snoopy to hoodwink all those gullible adolescents into buying insurance policies.
Never mind that our drinking laws are absurd. An 18‐year‐old is presumably mature enough to sign contracts, get married, have an abortion, go to war, and decide who is going to run the country. But he’s three years away from coping with the weighty implications of consuming a can of beer. Nor can a person of age 20, according to the Boies team, possibly resist the allure of a movie star enjoying a brew in a PG-13 film. In the end, how does a brewer or distiller, or a jury for that matter, distinguish an ad that would be suitable for a 21‐year‐old from an ad that might be construed as impermissibly “targeted” at a 20‐year‐old?
It’s not as if this issue has escaped scrutiny. The Federal Trade Commission’s 2003 Report on Alcohol Marketing and Advertising, approved by the commission without dissent, looked at nine major companies and analyzed their ads, marketing plans, and consumer research. The Report “found no evidence of targeting underage consumers” in the increasingly popular market for flavored malt beverages, which combine beer and distilled spirits. Moreover, studies from other sources have concluded that liquor advertising doesn’t affect aggregate consumption. The purpose of ads for alcoholic beverages, like ads for automobiles, is to encourage brand shifting, not to convert non‐drinkers into drinkers.
There’s another key concern when courts are asked to enjoin private companies from exercising their commercial speech rights. In a 1983 case, Bolger v. Youngs Drug Prods. Corp., the Supreme Court remarked that government must not “reduce the adult population … to reading only what is fit for children.” Then, 13 years later, the Court held that even “vice” products like alcoholic beverages are entitled to commercial speech protection (44 Liquormart, Inc. v. Rhode Island). Indeed, our Constitution protects Ku Klux Klan speech, flag burning, and gangsta rap, which is targeted directly at teenagers. Yet if Coors wants to advertise Keystone Light in Sports Illustrated, Mr. Boies and his team of lawyers would bring the boot of government down hard on the company’s neck.
Ads are not the problem and their prohibition is not the solution to teenage drinking. The sale of alcoholic beverages to minors is illegal in every state. Those laws should be vigorously enforced. Retailers found to have violated the law should be prosecuted. But ultimately the responsibility rests with the family. Parenting is, after all, the job of mothers and fathers, not distillers and brewers. However serious the problem of underage consumption of beer and liquor, and however heartrending that youngsters may injure themselves and others while driving under the influence of alcohol, there are countervailing values that are implicated when speech restrictions are proposed.
The choice between preserving core First Amendment values and regulating ads for alcoholic beverages is a particularly easy one when there is little evidence of any connection between those ads and underage drinking. We need not sacrifice commercial free speech to reduce alcohol consumption by minors. Nor should we sit back and allow the trial lawyers to add one more notch to their expanding tobacco belt. Their message is simple: The doctrine of personal accountability is out the window. In its place is the insidious notion that you can engage in risky behavior, then force someone else to pay for your mistakes. That message is far more pernicious than any beer or liquor commercial.