Josh Hawley, champion of obscure laws violating the First Amendment.
In June, the Missouri Broadcasters Association won a legal ruling allowing bars and alcohol distributors to advertise their prices
— a surprisingly hard-fought victory for something that sounds so simple. U.S. District Judge Douglas Harpool's verdict followed more than five years of legal wrangling, an appeals court decision and a trial. It also seemed to follow simple common sense.
Yet last week, the broadcasters association got some bad news: The office of Missouri Attorney General Josh Hawley filed notice that it would appeal. The fight will continue.
Mark Gordon, CEO of the broadcasters association, says that the organization is "disappointed but not surprised."
Says Gordon, "Continuing this litigation is not right and makes no sense. There was overwhelming evidence that the state had no viable justification to ban truthful advertising. In the end it is going to result in more legal fees for Missouri businesses and the state and it will not change the outcome of what has already been decided by two federal Courts. Business and consumers are entitled to a free and truthful marketplace."
Maybe not, however, in Missouri.
For decades, the state has engaged in the kind of bizarre rule-making that you'd associate with Soviet Europe (or maybe just an American state in the years after Prohibition, which is where Missouri's laws have their origin). It has long been illegal for retailers in Missouri to advertise what they're charging for booze if the state deems it too cheap
. A store can tell you they have, say, Smirnoff on sale. It can even put Smirnoff on sale. But if they've paid their distributor $19.99 per bottle, they can't tell you in an ad or a mailer that it's selling for $18.99 — even if it is. Missouri's laws required them to zip their lips.
Not only are those laws not on the books in the many states we neighbor (and which Missouri TV and radio stations must compete against), but those laws were enforced. Gordon says that, while local broadcasters had long chafed under the Byzantine rules, it wasn't until the state's bizarre decision to use its muscle to investigate a Springfield radio station's promotion, subpoenaing no less than sixteen businesses, that the broadcasters decided they had no choice but to fight back.
The association made its case to the state's alcohol control board and Attorney General's Office that the rules were needlessly prohibitive and should go without enforcement. But those state agencies declined.
The state argued that it had an interest in curtailing overconsumption and underage drinking. But it's never shown how alcohol pricing information might be responsible for doing that.
In fact, after a trial in federal court in St. Louis earlier this year, Judge Harpool found the attorney general's arguments weak at best. He concluded that the broadcasters association had shown "credible and substantial evidence" that there was no demonstrative relationship between advertising and consumption rates.
"The State failed to present any evidence contradicting the testimony, empirical studies, and statistical analysis relied on by Plaintiffs’ expert," he wrotes. "... [T]he Court finds the State has provided no evidence
that the challenged regulations significantly advance a substantial State interest" [emphasis added].
Yet still the attorney general's office is appealing.
Asked to explain the reason for the appeal, Mary Compton, a spokeswoman for Attorney General Josh Hawley, says, “It is the Attorney General’s responsibility to defend the constitutionality of state statutes. We will continue to defend the validity of this statute on appeal.”
In other words: Because the law said so. Never mind if there's any purpose to the law, or if it makes sense to keep using taxpayer money to advance an argument that doesn't serve the taxpayers.
This is Missouri. And so the broadcasters' fight continues.
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