Walter Olson has brought my attention to this recent article on alcohol promotion lawsuits; the article is by Doug Bandow of the Cato Institute and it appears in The American Spectator. I share many of the concerns about the lawsuits, but the claims that advertising has no effect on overall drinking or on problem drinking seem overstated to me. For instance, here?s the abstract of a recent working paper that suggests that higher alcohol advertising is associated with higher youth consumption (even though the advertising is not targeted at kids). One of the co-authors of that paper earlier found, in a cross-country study (abstract here — oops, and another one here), evidence that total alcohol consumption decreases following a ban on alcohol advertising.

Bandow makes another argument about the Constitutional protection of commercial speech: “The Constitution protects freedom of speech, and that includes commercial speech by alcohol producers. We punish brewers and distillers for selling their legal products at our peril, since there’s no reason to assume that the regulatory paternalists won’t soon find another unpopular vice to penalize.” Again, I share the concern that it shouldn’t be the case that simply by labeling an activity a vice, the government gains carte blanche to control advertising of that activity. But imagine and compare three broad alternatives in regulating vice: (1) laissez faire: the vice is legal and advertising is legal; (2) the vice is legal and advertising is controlled or banned; (3) the vice, and its advertising, is illegal.

I generally prefer option (2), to be honest, but my point here is that those of you who prefer option (1) might not want to push too hard against option (2) ? or you might end up with option (3). (Now, I don?t believe that the government actually has the right to ban adult vice consumption, but when we are arresting 1.5 million people per year on drug offenses and another 90,000 or so on prostitution-related charges, what I believe is not all that important.) I think that the history of vice regulation suggests that vice is legally tolerated only when it is made palatable to the non-customers, and in-your-face vice advertising has a way of getting folks riled up. And for those of you who now think that I am a hopeless statist, let me mention that John Stuart Mill, who would have no truck with making prostitution or alcohol or drugs illegal, did not view advertising restrictions as manifestly unjust infringements upon personal liberty — for him, it was a close call, as he makes clear in Chapter V of On Liberty.

Vice Squad has struggled with advertising controls in the past, including on November 19, 2003 and (briefly) on April 9, 2004.