The Fifth Circuit, on the other hand, has reached the opposite conclusion. In all likelihood,the Supreme Court will address this split of opinion, and its decision will have a great impact on the ability of advertisers to freely communicate information about legal activity. Perhaps one could come up with distinctions between hard liquor on the one hand and beer and wine on the other, but that is a hard distinction to make, especially for purposes of the Constitution. Others have suggested that something less than a blanket prohibition might be constitutional, but that would surely be an uphill legal battle. In addition to the constitutional issues, protecting advertising and direct marketing is just plain good policy.
Direct marketing plays a critical role in our free enterprise system.
Information is what makes consumer choice real. Attacks of advertising and direct marketing not only offend the First Amendment, they also offend our national sense of equality and opportunity. Restricting commercial and other speech implicitly leaves the status quo in place. It harms newcomers who seek to enter the market. It harms incumbents who seek to strengthen their position in the market.