The death of Posadas and the birth of change in commercial speech doctrine: Implications of 44 Liquormart

For roughly two decades, the Supreme Court has held that commercial speech receives an intermediate level of First amendment protection but not the ''full'' protection extended to noncommercial speech, In Posadas de Puerto Rico Associates v. Tourism Co., a 1986 decision, the Court professed adherence to the notion that commercial speech merits First Amendment protection, Posadas, however, suggested modes of analysis that threatened to undermine the intermediate level of protection and leave it with in-name-only significance, The Court did not explicitly adopt the Posadas modes of analysis in succeeding years. Neither, however, did the Court disavow the decision. Posadas thus loomed as a continuing threat to the viability of First Amendment protection for commercial speech, In 44 Liquormart, Inc. v. Rhode Island, a 1996 decision, the Court extinguished this threat by thoroughly discrediting Posadas. That alone would make 44 Liquormart noteworthy, Other aspects of 44 Liquormart help make it the most significant of several commercial speech decisions by the Court since Posadas, The various opinions of the justices reveal the probability of future changes in commercial speech jupisprudence. Besides extending greater protection to certain commercial speech than present law allows, these probable changes would involve a partial blurring of the longstanding boundary between commercial speech and fully protected noncommercial expression.