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to them. Yet, while they may enjoy the commercials and may sing them, they have no interest whatsoever in the products.

There is no clearly defined advertising which appeals exclusively to adults. Children and adults are both human beings and therefore, generally speaking, a commercial, especially a musical commercial, which is appealing to adults may also have an appeal to children.

It probably happens that some teen-agers stay up at night in order to see baseball and football games and other programs on television, but that is a matter for the parents. If the parents do not want them to see a program, they can send the teen-agers to bed or turn off the television just like the Supreme Court has said, and just like Methodist Bishop Gerald Kennedy of Los Angeles observed in the December issue of the Christian Century.

"Firm decisions about programs for children must begin at home. When you get down to the basic issues, this is a problem for parents," correctly states the May 1, 1954, issue of Presbyterian Life, the official organ of the Presbyterian Church in the United States.

During the past several years, we have traveled extensively throughout the United States, meeting and addressing brewers in national conventions, regional and State meetings and many meetings of the board of directors of the United States Brewers Foundation. The members of the foundation's board, incidentally, represent the brewers of the United States on a geographical basis. In all of these meetings, a special effort has been made to call to the attention of brewers suggestions of this committee and other Members of Congress for improving their advertising. They have been urged to review their commercials and all other advertising constantly and to maintain them in good taste. Brewers throughout the United States have cooperated wholeheartedly.

In addition, the foundation has a highly experienced and efficient field staff throughout the United States. The members of the staff have not only been alerted but have been directed to listen to radio and to view all television commercials, as well as newspaper and magazine advertising, and to report any advertisements which do not appear to be in good taste. The work of the field staff of the foundation has been instrumental in improving the standard of advertising in the industry.

Brewers have always recognized that they have a social responsibility in the advertising of their products and have diligently sought to maintain the highest standards of ethics and good taste in their advertising. Quite naturally, therefore, they have given serious consideration to the suggestions of this committee and individual Members of Congress, and have taken corrective steps.

The United States Brewers Foundation many years ago recognized that honest differences of opinion may arise among brewers and advertising agencies as to exactly what constitutes good taste in beer advertising. With this in mind, the foundation prepared for members of the industry a guidebook called "The ABC of Beer Advertising." Recently, the foundation published a revised edition including a new chapter on television advertising.

The foundation has always had the benefit of the advice and counsel of one of the largest and most experienced advertising agencies in the United States in both advertising and public relations. The brewers of the United States, individually, have likewise always maintained very reputable and experienced advertising and public relations counsel.

In a further effort to cooperate with Members of the Congress, the foundation within the past year established an advertising review panel. This panel is composed of five distinguished citizens, all of whom are experts on public opinion and are entirely independent of the brewing industry. These include Dean Carl W. Ackerman, of the Graduate School of Journalism at Columbia University; Neil H. Borden, professor of advertising at the Harvard School of Business Administration; Ralph Starr Butler, consultant on advertising and public relations, and formerly vice president of General Foods. In addition to these three men, Glenn Saxon, professor of economics at Yale University, and Daniel Starch, consultant on advertising research, make up this panel.

The purpose of the panel is to help the industry by criticizing advertising which is not in good taste. In this highly competitive industry, any brewer is privileged to complain to the panel about the advertising of his competitor or any other member of the industry. Thereafter, the panel studies the complaint and advises the complainant as well as the brewer complained against, of the findings of the panel. The very establishment of this panel has had a salutary effect upon advertising in the brewing industry.

Today, as a result of constructive congressional suggestions and the wholehearted cooperation of the industry, beer advertising is in good taste, is no longer irritating, consumes less time, is better spaced and, generally speaking, does not interfere with the program. Drinking scenes have been eliminated entirely from beer commercials.

The United States Brewers Foundation's "Home Life in America" series of advertisements appears in five of the leading magazines in the United States: Life, Look, Colliers, McCalls, and the Woman's Home Companion. These magazines have a combined circulation of more than 20 million and a total readership of upward of 80 million. About 25 percent of the subscribers to these magazines live in rural areas where prohibition sentiment is strongest. Yet today these magazines receive an infinitesimal number of complaints against beer advertising. The prohibitionists look at beer advertising through colored glasses and thus see it in a distorted light; the light in which they wish to see it in order to assist them in accomplishing their objectives. They have attempted to convince the Senate Judiciary Subcommittee studying juvenile delinquency that there is a relationship between beer advertising and juvenile delinquency. Nevertheless, that committee, after holding 20 hearings over the past several years in different cities of the United States, and after issuing 6 separate reports, has not found anything to criticize in beer advertising.

If you deny to us the right to use in our advertising the techniques developed in the art and science of advertising to sell the product advertised, you deny to us the right to advertise. In so doing, you not only impose prohibition upon us in violation of the 21st amendment, but you discriminate against our industry in violation of the due process clause of the fifth amendment which prohibits discrimination among industries. You would also deny to us the free speech and free press guaranties of the first amendment.

Gentlemen, the prohibitionists could not find in the length and the breadth of this great country of ours a reputable and experienced lawyer who could come in here and take the position that such discrimination against the brewing industry would be constitutional. This, gentlemen, is the heart of the controversy. This brings us to our extended legal opinion which we desire to submit for the record as a part of our testimony.

Before concluding, however, we should like to read to you from pages 8, 9, and 12 of our legal opinion some additional and enlightening information as to the origin and purpose of the 21st amendment. We should also like to read from pages 18 and 19 Mr. Eisenhower's views on the scope of the 21st amendment. This concludes my testimony. I wish to thank you and the members of the committee for your time and attention.

THE SILER BILL (H. R. 4627) IS UNCONSTITUTIONAL

In our opinion, this bill is clearly unconstitutional for three principal reasons, among others. First, it would constitute an abridgement of the freedom of speech and press guaranteed by the first amendment to the Constitution.

Second, it would violate the due process guaranty of the fifth amendment to the Constitution.

Third, it involves an attempt by the Congress to exercise a jurisdiction of which the Federal Government was deprived by the 21st amendment to the Constitution. The fact that Congress was divested by the 21st amendment of authority to regulate the manufacture and sale of alcoholic beverages under the commerce clause is confirmed by the legislative history of the amendment, and by the construction placed on it by the Congress contemporary with and subsequent to its ratification.

In considering the question of whether this bill abridges the constitutional guaranties of freedom of speech and freedom of the press, it is necessary to reflect for a moment on the far-reaching, insidious implications of this bill. The Surpeme Court has stated that freedom of speech and press are not absolutes in other words, a statute must be considered in the light of all legitimate considerations in order to reach a determination of whether it abridges free speech and free press.

With this in mind we pass to a consideration of this proposed statute and its ramifications.

This bill is directed at the one industry in this country which has had the honor of being expressly legitimatized by the American people, a people tired

and sick of the prohibition which the proponents of this bill are devoting their lives to foist again upon our country. It would deny this legitimate industry, now one of the 10 largest in the country, the right to advertise its products. With one stroke, this bill would deprive the American people of the entertainment and education they receive from brewer sponsored radio and television programs. It would deprive the magazines and newspapers, and the radio and television industries, of a portion of the advertising revenue which they must have if they are to fulfill their mission of keeping the people informed.

If this bill, despite the implications outlined above, does not violate freedom of speech and the press, then it is logically indisputable that Congress can validly legislate to prohibit advertising of any product which is unpopular with some persons, like tobacco, or which is subject to misuse, such as tobacco, automobiles, razors and razor blades, food (obesity is medically recognized as the number one threat to our Nation's health), aspirin, matches, and most other commodities. (It should be noted that as a matter of Federal constitutional policy the alcoholic beverage industry enjoys a position of equality with other industries. As Justice Oliver Wendell Holmes pointed out in Knickerbocker Ice Co. v Stewart (253 U. S. 149, 169: "I cannot for a moment believe that apart from the 18th amendment [now, of course, repealed] special constitutional principles exist against strong drink. The Fathers of the Constitution so far as I know approved it." More recently, Justice Frankfurter, in Carter v. Virginia (321 U. S. 131, 138), characterized the alcoholic beverage industry as being legitimate as the "cabbage and candlestick" industry.)

Whether Congress would ever exercise its power to prohibit advertising of these other commodities is immaterial. The point is that if Congress has power under the first amendment to outlaw alcoholic beverage advertising, it has the power to prohibit advertising of these other commodities. Congress therefore has power, if this is true, to completely stifle the media-radio, TV, newspapers and magazines-through which freedom of speech and the press are largely achieved, by drying up the source of revenue by which they exist. Viewed from another angle, under this absurd postulate, Congress has power to say to virtually all American industries, You can sell your products but you can't advertise them.

Is it conceivable that the United States Supreme Court would place its stamp of approval on a statute denying the ninth largest industry of this country the right to tell the public the truth about its product? That is exactly what this bill accomplishes.

Recent cases decided by State and Federal courts have unquestionably recognized that the protection of the first amendment extends to commercial advertising which embodies a message involving public affairs. Hoffman v. Perucci (222 F. 2d 709 (C. A. 3, 1955)); United States v. American Machinery Co. (116 F. Supp. 160 (D. C. E. D. Wash., 1953)); People ex rel. Barton v. American Automobile Insurance Co. (282 P. 2d 559 (1955)). In our opinion, these cases, on their facts, invalidate this bill insofar as it relates to the institutional advertising of the brewing industry. And the judicial reasoning which they exemplify leaves no doubt in our minds that the proposed legislation in its entirety contravenes freedom of speech and of the press.

It is to be noted that the Supreme Court, in an earlier case, Valentine v. Chrestensen (62 S. Ct. 920, 921) made a sweeping statement to the effect that purely commercial advertising is not within the protection of the first amendment. This statement was not necessary to the decision, since on its facts the Valentine case merely involved a reasonable police regulation concerning the distribution of advertising circulars on city streets. Prospective advertisers affected by the ordinance had a multitude of other avenues of approach to the public left open to them. The Valentine decision has been limited by Martin v. City of Struthers (63 S. Ct. 862), and we are confident it would not be held to authorize a statute which completely banned a legitimate industry from advertising its products, such as the bill you now have under consideration.

(It is unnecessary for us to treat in detail of two cases Williamson v. Lee Optical of Oklahoma (75 S. Ct. 461), and Semler v. Oregon Board of Dental Examiners (55 S. Ct. 570), cited by Mr. Dunford, counsel for the prohibitionists, as sustaining the proposition that a bill outlawing alcoholic beverage advertising would not constitute a denial of freedom of speech and press. These cases involved State regulations of the medical and dental professions which, among other things, prohibited certain advertising by members of these professions. Freedom of speech and press were not even raised by counsel or the Court in these cases. As the Court pointed out in the Semler case (p. 572) these regu

lations applied to professions concerned with treating bodily ills. The ethics of these professions have for centuries banned advertising by their members. For these and other reasons these cases involved no question of freedom of speech or press. They are obviously inapplicable here.)

In order to avoid holding the Federal Corrupt Practices Act unconstitutional as violative of the freedoms of speech and press, the Supreme Court has recently construed it as permitting a labor union (and likewise, presumably, a corporation) to support or oppose, in its own publications, the election of candidates for Federal office. United States v. C. I. O. (335 U. S. 106). Following this decision, the United States Court of Appeals for the Second Circuit also "read out" of the Corrupt Practices Act, payment by a labor union to a newspaper of general circulation for advertisements supporting or opposing election of congressional candidates. United States v. Painters Local Union No. 481 (172 F. 2d 854 (C. A. 2, 1949)). The decisions of both the Supreme Court and the court of appeals were based upon the ground that, if the act were construed to prohibit these activities, it would violate freedom of speech and press. If the first amendment, as construed by these decisions, guarantees the right of a labor union or corporation to promote its welfare through advocating election of public officials sympathetic to its cause, then is it not eminently reasonable to conclude that this amendment guarantees the right of a business to maintain its existence by telling the public the truth about its product?

This bill, if enacted, would also contravene the due process of law guaranty of the fifth amendment to the Constitution. It is settled law that a statute cannot survive if it amounts to a deprivation of due process of law through being arbitrary and oppressive and unduly restrictive of the right to engage in a useful business.

For example, in Adams v. Tanner (37 S. Ct. 662), the Supreme Court struck down a law of the State of Washington which made it a criminal offense for an employment agency to collect a fee from a worker for furnishing him information leading to employment, on the ground that the statute was “arbitrary and oppressive."

In New York State Ice Co. v. Liebmann (52 S. Ct. 371), the Court struck down an Oklahoma statute requiring a license for the operation of an ice business and providing that such license could be denied an applicant if State officials determined that existing facilities for supplying ice in the area proposed to be served by the applicant were sufficient.

The Court emphasized (p. 374) that "Plainly, a regulation which has the effect of denying or unreasonably curtailing the common right to engage in a lawful private business *** cannot be upheld consistent with the 14th amendment." The same limitation applies against the Federal Government under the fifth amendment.

It is doubtful whether, in the farthest flights of the imagination, one could dream of a bill more harshly oppressive of a legitimate industry than is this bill. The Court could not overlook the fact that, in our present-day economy, advertising is the lifeblood of selling. To deny an industry the right to advertise is in effect to partially deny its right to exist. The American people in adopting that 21st amendment have made the sale of alcoholic beverages a matter of constitutional policy. If this policy is to be reversed, the reversal must come from the people in the form of an amendment to the Constitution. For it is logical that a constitutional policy in favor of the sale of alcohlic beverages can only be reversed by those who established that policy in the first place: namely, the people, exercising their sovereign right to amend the Constitution. Viewed thus in its proper perspective, the conclusion is inescapable that Congress, in enacting any measure to partially prohibit the sale of alcoholic beverages, is denying due process of law to the industry as well as violating the policy of the 21st amendment.

If this bill does not constitute a deprivation of due process, the fifth amendment is absolutely void of meaning as respects economic activity. The amendment cannot be so void of meaning. The Supreme Court has recently stated concerning the fifth amendment's guaranty of due process:

"Liberty under law extends to the full range of conduct which the individual is free to pursue ***" Bolling v. Sharpe (347 U. S. 497, 499).

Turning now to a consideration of the effect of the 21st amendment to the Constitution, we wish to note that we have left our discussion of this amendment to last because we have previously discussed it with this committee.

Section 1 of the 21st amendment repeals the 18th amendment. Section 2 provides that:

"The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

The joint resolution which became the 21st amendment contained, as reported by the Senate Judiciary Committee, a third section which conferred upon the Federal Government concurrent jurisdiction with the States to regulate the manufacture and sale of intoxicating liquors. This section was eliminated on the Senate floor. The debates in the Senate on the elimination of this section clearly indicate that those members of the Senate who were in charge of the joint resolution on the floor of the Senate were of the opinion that the elimination of this section permitted the Federal Government to withdraw entirely from the regulation of the manufacture and sale of alcoholic beverages and thus made it possible to vest jurisdiction over this subject matter exclusively in the States.

The 21st amendment is, as a matter of fact, a mere restatement of a plank in the Democratic platform of 1932, which advocated placing the alcoholic beverage business "under complete supervision and control by the States." The Democratic platform recognized that under such a system the Federal Government would retain power to “enable the States to protect themselves against importation of intoxicating liquors in violation of their laws.”

The Republican plank, on the other hand, which was adopted after vigorous debate and near repudiation at the convention of 1932, argued that "We do not favor a submission (to the people) limited to the issue of retention or repeal *** The Republicans advocated retaining power in the Federal Government to "protect those States where prohibition may exist and safeguard our citizens everywhere from the return of the saloon and attendant abuses." Thus, the Republican platform advocated authority in the Federal Government, not only to protect dry States from the importation of liquors, but also to exercise concurrent jurisdiction with the States in dealing with local problems.

Section 3 of the joint resolution, which would have vested in the Federal Government concurrent jurisdiction with the States, was designed to implement the Republican platform.

The joint resolution, as actually passed by the Congress minus section 3, carried into effect the Democratic recommendation that the control of the alcoholic beverage industry be placed under the "complete supervision and control of the States."

It will be recalled that during the short session of Congress at which this joint resolution was considered and adopted, the Senate was Republican by a narrow margin, and the House Democratic. Section 3 was reported to the Senate, as a part of the joint resolution, by the Republican controlled Judiciary Committee, but it was eliminated by the Senate.

As explained by Senator Wagner (Democrat, New York), who led the battle for elimination of section 3, that section would have failed to "restore to the States responsibility for their local liquor problems” and did not "withdraw the Federal Government from the field of local police regulaitons into which it has trespassed." Senator Wagner feared that section 3 would require the Federal Government to establish an agency to enforce the Federal liquor laws which this section would authorize enactment of. He explained:

“Any realistic calculation will reveal that the agency will be larger, more expensive, and more subject to abuse and corruption than the Bureau of Prohibition. The kind of regulation which may be fairly anticipated under section 3 cannot possibly be administered except by a genuine police force of thousands upon thousands of officers. The Federal Government has never been equipped with such a force, and it cannot be so equipped unless we alter the nature of our Government beyond recognition.

“We know perfectly well that the grant of the power 'to regulate or prohibit' as defined in section 3 will lead inevitably to State reliance upon the Federal Government to enforce the local laws of the dry communities" (Congressional Record, vol. 76, pt. IV, p. 4146).

After deletion of section 3, the joint resolution was composed of a section 1, which repealed the 18th (prohibition) amendment, and a section 2.

In the words of Senator Blaine, who was in charge of the joint resolution on the Senate floor, "the purpose of section 2 is to restore to the States by constitutional amendment absolute control in effect over interstate commerce affecting

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