Novel Judicial View: Parents, Not Advertisers, Must Mind Their Children

Earlier this month, the U.S. Court of Appeals for the Sixth Circuit dismissed a lawsuit filed by parents against manufacturers and importers of alcoholic beverages and the Beer Institute, that alleged advertising is responsible for the illegal purchase of alcoholic beverages by minor children. Although the suit had numerous technical flaws, the parents were suing to recover money their minor children spent on alcoholic beverages, and to enjoin advertising. While the first claim was economic, the second alleged injury to their “parental rights.” Although the court dismissed the suit for lack of jurisdiction, they cite prior decisions that clearly state there appears to be no legal authority to support the notion that expression of ideas by advertisers interferes with a parent’s right to make decisions regarding their children’s well-being or upbringing. To restrict advertising would be an inappropriate restriction on the advertisers’ rights to freedom of speech and expression.

The plaintiffs acknowledged that laws designed to protect against underage consumption of alcohol—laws which prohibit both the sale to and purchase of by a minor—lose their connection to the advertisers, since intervening criminal acts of third-party sellers and third-party underage purchasers are the direct cause of the illegal activity, not advertising. The court stated what many of us consider to be all too obvious: one must trace the injury or violation to actions of the defendant, not something that results from actions and activities of parties who aren’t even in court (i.e., merchants who sold the alcohol and minors who purchased it).

Perhaps the parents should bring an action against the merchants who sold the alcoholic beverages or even against their own children to recover money the children spent (“converted”) in their violation of laws prohibiting underage purchase of alcohol. The bottom line for this court is that if the First Amendment right to commercial speech (advertising) is to be outlawed, it is for the lawmakers or a constitutional amendment to do so, not the courts.