STATEMENT OF HON. JAMES C. DAVIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA

The CHAIRMAN. The Chair notices another Member of the House present, Hon. James C. Davis, of Georgia.

Do you care to make a statement, Mr. Davis?

Mr. DAVIS. Yes, Mr. Chairman."

The CHAIRMAN. The committee will be glad to hear you at this time. Mr. DAVIS. Mr. Chairman and gentlemen of the committee, my name is James C. Davis and I am the Representative of the Fifth District of Georgia.

I appreciate and wish to thank you for the opportunity to appear before this honorable committee today and to testify in behalf of House bill, H. R. 4627.

The powerful influence of advertising on consumer demand is one of the most obvious and indisputable facts of our time. Its effect is much in evidence every day and to be cognizant of this fact no one need go further than to examine his own personal likes and dislikes relative to two products of equal value. The final choice of which product to buy is generally based on which one has been advertised in the most pleasing and useful manner.

When the power of advertising is harnessed to serve useful purposes then the public is served. However, when such advertising has the effect of converting a nonuser of alcoholic beverages into a user of alcoholic beverages the public has not been served. In fact, a grave injustice has been rendered against the public as well as against the individual affected.

It would be impossible to tabulate accurate statistical data to show the extent of harm done each year by intoxicants both directly and indirectly. The records of our divorce courts, our traffic courts, our hospitals, and our mental institutions are all available and to this extent the harm could be tabulated. However, as is often the case, liquor and its allied intoxicants have a more subtle effect, particularly on children in homes where intoxicating beverages are accepted. It generates tension and apprehension and often restrains the development of the child's personality.

Under the impact of advertising, which takes advantage of nearly every medium of communications, the child, and the adult also, are subjected to constant temptation directed by professional advertising men who know how to sell their product. The more attractive they make the advertisement the more effective it becomes and greater becomes the increased demand for the product advertised.

Many of the television and radio programs to which children and young people are normally attracted, such as baseball games and boxing matches, are sponsored by purveyors of alcoholic beverages. By the content of the advertisements used on many of these programs, the viewer or listener is made to believe that in order to be a social or athletic success he must subscribe to a particular brand of intoxicants. This can have a dangerous effect on the youthful mind if he is constantly exposed to it.

It is the advertising feature of the beer, wine, and liquor industry that this bill would restrain.

It is not a bill to stop or even slow down the manufacture or sale of intoxicants. Sellers of whisky and other alcoholic beverages may continue to sell and drinkers may continue to drink. This bill is in no way a prohibition against making or selling liquor and consequently is not subject to the criticism directed against the prohibition amendment or the Volstead Act. This bill, if passed, would only serve to protect the nondrinker from the effects of skillfully contrived advertisements designed to break down his resistance and convert him from a nondrinker to a drinker. It would protect our youth who are still in the impressionable age, and it would stop the objectionable intrusion into our homes via television, radio, newspapers, and magazines or attempts to induce us to become drinkers.

There are millions of parents who are nondrinkers. Conversely there are millions of parents that do drink. Even those who do drink, or those who merely drink occasionally, do not want the daily allurements to imbibe before the eyes and ears of their children.

The members of this committee and the Members of Congress have a responsibility to the people of our country. They are looking to this legislative body to give them this small assistance in their efforts to protect their children from the temptations of alcoholic beverages which present-day advertising keeps before them.

They depend on us to legislate wisely and always in their best interest. This bill serves the best interest of the people as a whole and I urge this committee to take favorable action on it.

This bill contains three quite distinct prohibitions.

Briefly, sections 1 to 3, prohibit distillers, publishers and common carriers from transporting or causing to be transported from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, any advertisement of alcoholic beverages.

Section 4 penalizes the broadcasting of any advertisement of alcoholic beverages by any radio or television station which is subject to Federal license.

Section 5 prohibits the mailing, carriage or delivery of advertisements of alcoholic beverages addressed to any place in any State where by local law such advertising is unlawful.

Now, somewhat different considerations apply in these different situations.

Section 4 of the bill is substantially identical with S. 2444 of the 82d Congress-substituting the broader language: "alcoholic beverage" for "distilled spirits for beverage purposes.

The Senate Committee on Interstate and Foreign Commerce held hearings on S. 2444, at which the constitutionality of the bill, in view of the 21st amendment, was discussed at great length.

A statement prepared in the American Law Division of Legislative Reference Service at that time was printed in the hearings at page 131, and I am sure this committee is familiar with that. The conclusion there reached was that, "Congress may, in the exercise of its constitutional power to regulate commerce and in harmony with the first amendment, prohibit advertising of distilled spirits for beverage purposes, or the solicitation of orders as provided in S. 2444."

Now, as to sections 1 to 3, interstate transportation of advertisements, there is no statement of findings or policy of this bill, but on

its face it appears to be an exercise of the commerce power of the Congress with a view to restricting a practice—the advertising of alcoholic beverages-considered to be a social evil. The question is whether the commerce power can constitutionally be carried this far; where does regulation of commerce stop and regulation of community drinking habits begin?

To go back a little and discuss this question, in 1918, the Supreme Court took the position in Hammer v. Bagenhart, (247 U. S. 251), that Congress could not under the authority of the commerce clause forbid interstate transportation of merchandise merely because it was manufactured with the aid of child labor. It held that the evil there aimed at-child labor-was not a part of interstate commerce, and the act was an invasion of the reserved powers of the States. Subsequently, however, a different attitude has prevailed.

In 1925, Chief Justice Taft said in upholding the National Motor Vehicle Theft Act (Brooks v. U. S., 267 U. S. 432):

Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other States from the State of origin.

And by 1941, in the case of United States v. Darby (312 U. S. 100), the Court was ready to overrule, did overrule the Hammer case, and upheld a child-labor provision of the Fair Labor Standards Act.

Today, apparently the Court would be very liberal in upholding legislation based upon the commerce power.

Now, as to section 5, which deals with mail:

The proposal in section 5 is to close the facilities of the mailsUnited States monopoly under article I, section 8, clause 7 of the Constitution to close advertisements destined for States whereby local or such advertising is illegal.

Early decisions of the Supreme Court used broad language as to the power of Congress over the mails. In the case of Public Playing House v. Coyne (194 U. S. 497), back in 1904, the Court stated that:

The legislative body in thus establishing a postal service, may annex such conditions to it as it chooses.

Now, considering the matter realistically, I believe it is worthwhile to go ahead and pass this bill and leave the question of constitutionality for definition by the courts.

Now, I believe that under the briefs which were prepared and submitted in connection with the hearings on S. 2444, that the weight of authority is with the contention that this bill is constitutional and I would like to quote just two short paragraphs from that brief, which is carried in these hearings. On page 133 it is said in that brief:

With respect to the 21st amendment, while it renders to each State the power to prohibit or condition importations. of intoxicating liquor in interstate commerce into the State, it does not surrender power of the Congress to regulate transportation of intoxicating liquor in interstate commerce.

and cites the case of Old Monastery Company v. U. S. ((1945) 147 F. 2d 905), in which the certiorari was denied in 1947 by the Supreme Court, in 326 United States 734.

Now, the concluding paragraph of this brief says:

From the foregoing it appears that Congress may, in the exercise of its con-stitutional power to regulate commerce and in harmony with the first amend

ment, prohibit advertising of distilled spirits for beverage purposes or the solicitation of orders as provided in S. 2444.

Upon my request, Miss Mary Louise Ramsey, American Law Section, Legislative Reference Service, Library of Congress, has prepared a brief with respect to the constitutionality of this bill. The brief is as follows:

DRAFT OF STATEMENT SUPPORTING CONSTITUTIONALITY OF H. R. 4627

H. R. 4627 represents a valid exercise of the constitutional authority of Congress to regulate interstate commerce and prescribe rules for the operation of the postal system.

The power to exclude liquor advertising from the mails is fully sustained by the reasoning in the leading case of In re Rapier (1892), 143 United States 110. There the Supreme Court upheld an act of Congress which excluded from the mails, newspapers containing lottery advertisements. It rejected the contention that such a law was an invasion of the police power of the State as well as the argument that it was an abridgement of freedom of the press.

With respect to the first objection, it had this to say:

"The States before the Union was formed could establish post offices and post roads, and in doing so could bring into play the police power in the protection of their citizens from the use of the means so provided for purposes supposed to exert a demoralizing influence upon the people. When the power to establish post offices and post roads was surrendered to the Congress it was as a complete power, and the grant carried with it the right to exercise all the powers which made that power effective. It is not necessary that Congress should have the power to deal with crime or immorality within the States in order to maintain that it possesses the power to forbid the use of the mails in aid of the perpetration of crime or immorality.

"The argument that there is a distinction between mala prohibita and mala in se, and that Congress might forbid the use of the mails in promotion of such acts as are universally regarded as mala in se, including all such crimes as murder, arson, burglary, etc., and the offense of circulating obscene books and papers, but cannot do so in respect of other matters which it might regard as criminal or immoral, but which it has no power itself to prohibit, involves a concession which is fatal to the contention of petitioners, since it would be for Congress to determine what are within and what without the rule; but we think there is no room for such a disinction here, and that it must be left to Congress in the exercise of a sound discretion to determine in what manner it will exercise the power it undoubtedly possesses."

Freedom of the press was not infringed because, in the words of Mr. Chief Justice Fuller:

***The circulation of newspapers is not prohibited, but the Government declines itself to become an agent in the circulation of printed matter which it regards as injurious to the people."

That Congress can exercise the police power within the field of interstate commerce to protect the public welfare is well settled. The Supreme Court has said that "Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other States from the State of origin," Brooks v. United States ((1925, 267 U. S. 432, 436). It is no objection to a congressional assertion of power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of a state's police power. United States v. Darby ((1941), 312 U. S. 100).

Disseminaion of advertising across State lines is a part of interstate commerce. An earlier decision which raised doubts on this point was explained and qualified in the recent case of Lorain Journal v. United States ((1951), 342 U. S. 143, 151). Congress, therefore, has the same power to regulate advertising in interstate commerce as a State has to regulate local advertisements within its borders. It has been urged that this bill would be invalid on several grounds:

(1) that it would abridge the freedom of speech guaranteed by the first amendment.

(2) that it would constitute a deprivation of liberty or property without due process of law; and

(3) that it would invade the alleged exclusive authority over intoxicating liquors granted to the States by the 21st amendment.

These objections are all untenable.

To the argument that this bill would abridge freedom of speech, the short answer is that commercial advertising is not protected by the first amendment.. This was made clear in Valentine v. Chrestensen ((1942), 316 U. S. 52). In that case a municipal ordinance forbidding distribution in the streets of printed handbills bearing commercial advertising matter was held constitutional. Speaking for unanimous court, Mr. Justice Roberts said:

"This Court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that, though the States and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares. We are equally clear that the Constitution imposes no such restraint on Government as respects purely commercial advertising."

That the due-process objection is lacking in merit is clearly shown by the decision in Packer Corporation v. Utah ((1932), 285 U. S. 105), that a State law restricting cigarette advertising did not deprive advertisers of liberty or property without due process of law. Surely liquor advertising stands in no better position than cigarette advertising so far as the due process clause is concerned. A twofold answer can be made to the argument based on the 21st amendment. In the first place, since the interstate distribution of advertising is itself interstate commerce, it can be regulated as such, without reference to the power to regulate the commodity advertised. But, secondly, it is an error to say that the 21st amendment deprived Congress of its power to regulate interstate commerce in intoxicating liquors. Shortly after that amendment was adopted, Congress enacted the Federal Alcohol Administration Act, 49 Stat. 977, 27 United States Code 201 et seq. This law imposed extensive regulations on interstate and foreign commerce in alcoholic liquors. Among other things, it forbade dissemination of any advertisement, except in conformity with regulations prescribed by the Secretary of the Treasury to prevent deception of consumers, disparagement of competitor's products, etc. It was held constitutional in Arrow Distilleries Inc. v. Alexander ((1940), 109 F. 2d 397), in the face of a vigorous argument that the 21st amendment transferred to the States complete and exclusive control over commerce in intoxicating beverages, unlimited by the commerce clause, and deprived Congress of its power to enact the Alcohol Administration Act as a regulation of interstate commerce. The Court held that:

"Section 2 of the 21st amendment gives effect to any and all State laws prohibiting the transportation or importation of intoxicating liquors into a State in violation of the laws thereof. But there is no provision in the amendment which purports to restrict the power of Congress over commerce in intoxicating liquors when such commerce is carried on without the violation of State laws, or to deny to Congress the power to legislate in aid of the State prohibitions." The Supreme Court dismissed a similar argument as lacking in substance, in a case involving the application of this act to the importation of whisky alleged to be improperly labeled Jameson & Co. v. Morgenthau ((1939) 307 U. S. 171). Mr. DAVIS. Now that, Mr. Chairman and gentlemen, constitutes the statement which I am prepared to make this morning.

This committee has moved along so fast with its hearings this year that I have not prepared a statement in full which I wish to present and I would like to ask the permission of the committee to revise this statement and extend it, and give it to the reporter to be included in the record.

The CHAIRMAN. Without objection, you have that permission, Mr. Davis.

I just want to ask you a question and it is a question for me, largely. In referring to section 5, the postal section of this bill, you made reference to States in which it is illegal to transport alcoholic beverages.

Do you know offhand how many States, by statute, forbid the advertising of alcoholic beverages?