No. 501 December 5, 2003

Back Door to Prohibition The New War on Social Drinking by Radley Balko

Executive Summary

December 2003 marks the 70th anniversary still others by censoring alcohol advertisements. of the Twenty-First Amendment, which repealed State and federal government officials have also alcohol prohibition in the United States. The 13 sought to curb alcohol abuse from the demand years between the passage of the Eighteenth and side, but such efforts ultimately prove misguid- Twenty-First Amendments saw the alcohol trade ed. The 2000 federal law that encouraged local go underground, bringing with it all the ancillary officials to lower the legal threshold for drunken crime that comes with a black market. Alcohol driving, for example, will have little effect on abuse in the United States went up, not down, public safety. Instead, it shifts law enforcement and civil liberties and tax dollars were sacrificed resources away from catching heavily intoxicated to what amounted to a grand, failed experiment drunk drivers, who pose a risk, to harassing in state-enforced morality. responsible social drinkers, who don’t. One would think that, given the failure of Taken together, the well-organized efforts of Prohibition, Americans wouldn’t need to worry activists, law enforcement, and policymakers por- about its return. That may not be the case. A well- tend an approaching “back-door prohibition”—an funded movement of neoprohibitionists is afoot, effort to curb what some of them call the “envi- with advocates in media, academia, and govern- ronment of alcoholism”—instead of holding indi- ment. The movement sponsors a variety of vidual drinkers responsible for their actions. research organizations, which publish dozens of Policymakers should be wary of attempts to studies each year alleging the corruptive effects restrict choice when it comes to alcohol. Such of alcohol. Those studies are taken at face value policies place the external costs attributable to a by well-intentioned policymakers at the local, small number of alcohol abusers on the large per- state, and federal level. New laws are enacted that centage of people who consume alcohol responsi- curb Americans’ access to alcohol. bly. Those efforts didn’t work when enacted as a Some of those laws aim to make alcohol less wide-scale, federal prohibition, and they are also available through taxation schemes, others ineffective and counterproductive when imple- through strict licensing or zoning requirements, mented incrementally.

______Radley Balko is the editor of Cato.org and a columnist for FoxNews.com. Prohibitionist Introduction Temperance advocates also appealed to literature warned corporate America. Henry Ford signed on to From January 17, 1920, to December 5, the cause after drys convinced him that the that alcohol could 1933, America experimented with the prohibi- saloons were sapping his workers’ productiv- trigger every tion of alcohol. When the Eighteenth ity.8 The prohibitionists preached the evils of conceivable Amendment was ratified on January 16, 1920, alcohol from the pulpit, taught them in the it was the culmination of a well-funded, well- schoolhouse, and filibustered from the state- human malady, organized, multifaceted anti-alcohol effort house. When they needed a final push, some from dysentery to that was more than 100 years in the making. turned to ethnic demagoguery. The onset of Though the various organized temperance World War I provided ample opportunity for spontaneous movements date back to well before the Civil the drys to exploit stereotypes of hard-drink- combustion. War, the initial political success of prohibition ing Germans and Italians to garner support can largely be credited to the grassroots efforts for a constitutional amendment.9 of two organizations, the Women’s Christian Prohibition itself, of course, was a cata- Temperance Union and the Anti-Saloon strophic failure. It took about three years for League.1 Those two organizations and their a black market bootlegging industry to find supporters initially took their case for a dry its footing, but by the mid-1920s Americans society to state and local governments, were drinking as much alcohol as they were attempting to persuade cities, counties, and immediately before the ratification of the states to use more discretion in the licensing Eighteenth Amendment.10 More people were of saloons.2 Some of those advocates called for drinking and drinking more at each sitting, higher taxes on beer, wine, and liquor (others and they were drinking dangerous liquor didn’t, because they viewed excise taxes as state manufactured by amateurs who did not endorsement of alcohol).3 Others sought to always know what they were doing. ban alcohol near churches, schools, and public Corruption ran rampant, from the most buildings. That incremental approach to tem- provincial city and county law enforcement perance won converts city by city, county by officials all the way up to the U.S. House of county. Federal prohibition might never have Representatives, which housed its own stock happened without it. By 1900 a dry founda- of bootlegged liquor,11 and to the Department tion had been laid—nearly one in three of Justice, where President Warren Harding’s Americans lived in a jurisdiction that prohibit- attorney general, Harry Daugherty, became ed alcohol.4 By 1913 that number jumped by the administration’s corrupt point man for half; nine states were entirely dry, and an addi- bootleggers.12 Many politicians blatantly sup- tional 31 granted cities and counties the ported prohibitionist policies while regularly option of going dry on their own.5 imbibing themselves. The prohibition move- Those provincial legislative successes ment was well aware of the duplicity but was came only after concerted efforts to win willing to grant its most public supporters hearts and minds to the dry cause. Here, too, immunity in exchange for needed political the prohibitionists employed a multifront patronage.13 effort. They regularly invoked alcohol’s dev- Though temperance advocates often cited astating effects on children—one of the the plight of women and children in the cam- WCTU’s earliest victories was to compel pub- paign for the Eighteenth Amendment, its lic schools to teach the purportedly dire enactment had the effect of introducing an health consequences of regular alcohol con- entire generation of American women to alco- sumption.6 They used dubious science to hol. More women drank during the 1920s support their cause—prohibitionist literature than ever before, and both men and women warned that alcohol could trigger every con- began drinking at a younger age.14 By the mid- ceivable human malady, from dysentery to 1920s deaths, illnesses, and hospitalizations spontaneous combustion.7 due to drinking soared, as more potent, less

2 scrupulously brewed liquor flooded the black who threaten highway safety but at putting market.15 Some observers credited Prohibition the fear of a drunken driving arrest into social with the popularity of the cocktail, which drinkers, most of whom can responsibly mix a evolved as drinkers were forced to dilute harsh drink or two over dinner with the drive home. underground libations to make them palat- The aim of the neoprohibitionist movement able.16 seems to fall short of constitutionally man- The great journalist and humorist H. L. dated sobriety. Rather, the neoprohibitionists Mencken wrote in 1925: “Five years of seem more interested in inconveniencing Prohibition have had, at least, this one benign social drinkers, embarrassing them, and effect: they have completely disposed of all the threatening them with draconian drinking favorite arguments of the Prohibitionists. and driving laws to the point where consum- None of the great boons and usufructs that ing alcohol away from home just isn’t worth were to follow the passage of the Eighteenth the hassle. Amendment has come to pass. There is not In a RAND study that’s something of a less drunkenness in the Republic, but more. milestone for the modern temperance move- There is not less crime, but more. There is not ment, Deborah Cohen and others concluded less insanity, but more. The cost of govern- that the “magnitude of alcohol-related health ment is not smaller, but vastly greater. Respect problems in a population is directly related to Though a for law has not increased, but diminished.”17 per capita consumption.”18 Cohen and her return to formal Given that bitter 13-year experience, one coauthors recommended “controlling access prohibition would think that America had learned its les- to alcohol, penalties for violations of liquor son: that the grand jazz-age experiment in laws, stricter licensing requirements and ran- seems farfetched, social engineering had failed so miserably dom sobriety checkpoints.”19 Those policy a slightly and completely that policymakers would prescriptions succinctly summarize the goals modified, never be inclined to attempt it again. of the neoprohibitionists: control the environ- Unfortunately, that’s not the case. There’s a ment of alcohol and alcoholism and shift the “back-door” new anti-alcohol fervor afoot. It began with a focus away from alcohol abusers themselves. prohibition is laudable 20-year nationwide campaign If enough restrictions are placed on access to against drunken driving that has since gone alcohol, the thinking goes, society at large will certainly feasible awry. State legislatures, municipalities, and free itself from the external costs of drunken- and probably some segments of the federal government ness. Indeed, Cohen told the Dallas Morning already within have rediscovered a strong distaste for alco- News, “It’s easier to control the providers than hol. Like its early 20th-century forebears, it is the consumers.”20 reach. today’s anti-alcohol movement, or neoprohi- The success of the new temperance move- bitionism, is well funded, nonpartisan, and ment is all the more remarkable considering well versed in public relations. the panoply of medical studies released over It’s also been fairly successful. Though a the past several years touting the health bene- return to formal prohibition seems farfetched, fits of moderate alcohol consumption.21 In a a slightly modified, “back-door” prohibition is December 2002 article in the New York Times, certainly feasible and probably already within reporter Abigail Zuger summarized dozens of reach. The new temperance movement has studies on alcohol and human health, includ- pushed for—and won—a wide range of anti- ing large population studies of 80,000 alcohol initiatives across the country, includ- American women, thousands of Danish men, ing higher taxes on alcohol; zoning laws that and more than 100,000 adults in California. restrict taverns and bars or limit their concen- Zuger writes: “A drink or two a day of wine, tration in certain areas; bans and severe restric- beer, or liquor is, experts say, often the single tions on alcohol advertising; and aggressive best nonprescription way to prevent heart drinking and driving laws that are aimed not attacks—better than a low-fat diet or weight at rounding up seriously inebriated drivers loss, better even than vigorous exercise.

3 Moderate drinking can help prevent strokes, tant instruments for preventing underage amputated limbs and dementia.”22 According drinking and its harmful consequences.”34 to Dr. Curtis Ellison, a professor of medicine The report further recommends a special fed- and public health at the Boston University eral task force on underage drinking that will School of Medicine, “The science supporting identify trends and loyalties toward favored the protective role of alcohol is indisputable; brands and varieties of alcohol among under- no one questions it anymore. . . . There have age drinkers, brands that will then presumably been hundreds of studies, all consistent.”23 be subject to further federal penalties, includ- Other studies have shown that moderate ing additional taxation.35 alcohol consumption reduces the risk of Type For years activist and advocacy groups 2 diabetes24 and stiffening of the arteries25 and such as the Center on Addiction and that wine reduces the risk of prostate cancer,26 Substance Abuse, Mothers Against Drunk pulmonary events,27 second heart attacks,28 Driving, the Center for Alcohol Marketing to skin cancer,29 and even the common cold.30 In Youth, and the Center for Science and the 1994 the Journal of the American Medical Public Interest have called for increasing Association estimated that as many as 80,000 taxes on liquor at the local, state, and federal American deaths could be prevented each year level. In a down economy, when state legisla- by moderate alcohol consumption.31 tures and local governments are looking for Yet even with all of this heartening new new revenue streams to close budget gaps, research, a handful of organizations are still higher taxes on liquor are apparently per- pushing the ideas (also contrary to available ceived to be politically painless. evidence) that too many Americans are drink- ing too much, that the alcohol industry is tar- • In Indiana the state legislature is consid- geting binge drinkers and underage con- ering raising alcohol taxes by 50 per- sumers, and that all of this has heavy costs for cent.36 the U.S. economy. As we mark 70 years since • The mayor of Pittsburgh, Pennsylvania, the repeal of Prohibition in America, perhaps has proposed a 10 percent city tax on it is time to survey how policymakers are using alcohol, a move supported by the state’s taxation, censorship, zoning restrictions, and governor, Ed Rendell, who pushed a As we mark 70 other police powers to curb freedom and similar proposal while he was mayor of years since “engineer” America’s alcohol behavior. Philadelphia. Rendell also proposed 37 the repeal of tripling the state tax on beer. • In Nevada the legislature has considered Prohibition, Taxation doubling alcohol taxes. State Assembly policymakers are Minority Leader Lynn Hendrick said of using taxation, In September 2003 a panel of the National the proposal: “This will be easy. Nobody Academy of Sciences’ Institute on Medicine has a problem with sin taxes.” Gov. censorship, released a report titled Reducing Underage Kenny Guinn signed a bill increasing zoning Drinking: A Collective Responsibility.32 Congress alcohol taxes 75 percent.38 commissioned the report at a cost of • In 2002 Alaska, Tennessee, and Puerto restrictions, and $500,000.33 Rico all increased their excise taxes on other police The report concludes that underage drink- beer, wine, or alcohol.39 powers to curb ing is a devastating problem, costing the U.S. • In 2003 Arkansas, Idaho, Nebraska, economy some $51 billion per year. It urges Nevada, Washington, and Utah increased freedom and policymakers to increase taxes on alcohol their excise taxes on liquor as well.40 “engineer” products, including tripling the taxes on beer, • Additional alcohol tax legislation is cur- because “beer is the most popular form of rently pending in Alabama, Arkansas, America’s alcohol alcoholic beverage by a large margin. . . . [S]tate Connecticut, Georgia, Idaho, Indiana, behavior. and federal excise taxes are potentially impor- Kansas, Massachusetts, Michigan, Mis-

4 souri, Minnesota, Nebraska, Nevada, lic relations campaigns. Their conclusions are States such as New York, North Carolina, Oregon, too often accepted uncritically by media out- Florida and South Carolina, Utah, Vermont, and lets, opinion leaders, and policymakers West Virginia. Additional proposals were around the country. In a December 2002 edi- Alaska, which introduced in 12 states but either failed torial recommending the 50 percent hike in have the highest 41 or died before coming to a vote. Indiana’s alcohol taxes, for example, the excise taxes on Indianapolis Star wrote: “The biggest dividend Generally, those tax bills are sold on the would go to children. Research shows the beer, have shown idea that an increase in alcohol taxes will greatest impact from raising alcohol taxes is a no signs of a decrease consumption, particularly among reduction in alcohol consumed by minors.”48 underage drinkers, and thus cut down on the In truth, underage drinking has been corresponding external costs associated with alcohol abuse, falling since the early 1980s.49 According to decrease in just as the NAS study suggested. Newspaper the National Institute on Alcohol Abuse and underage editorials and legislators then cite the alarm- Addiction, the percentages of high school ing studies about underage and binge drink- students reporting they have had a drink in drinking. ing when advocating the tax hikes. their lifetimes, in the previous year, in the There are several reasons why the stated previous 30 days, and daily have all fallen sig- policy rationale for increased taxation should nificantly since 1980.50 The percentage be viewed with skepticism. First, the assertion reporting they have consumed five or more that underage and binge drinking are “on the drinks at one sitting in the previous two rise” is questionable. The premise usually rests weeks has also fallen steadily.51 The trend has on a series of reports published in the last sev- been similar among eighth graders and eral years by Columbia University’s Center on sophomores (though less significant among Addiction and Substance Abuse. One of the the latter) ever since NIAA began surveying reports, titled “Teen Tipplers,” claimed that the latter two groups in 1991.52 underage drinking was responsible for one- Intuition alone suggests that underage quarter of all alcohol consumption in the drinkers aren’t likely to be dissuaded by hikes United States.42 The study was later proven in the prices of beer or wine. As the NAS study faulty, as it was taken from a federal survey of notes, young people today prefer beer, but substance abuse habits that oversampled only because it is inexpensive. Increasing the teenagers. The actual number is closer to 11 price of beer will only steer young people percent.43 toward the next least expensive option. Another report from CASA claimed that Furthermore, the idea that teens and young half of alcohol sales are to youth and adults adults are cost conscious is dubious at best, who drink excessively.44 That study was later given the ample evidence of their preference criticized by the National Centers for Disease for brand names, trends, and peer acceptance. Control and Prevention, which said CASA had States such as Florida and Alaska, which have misinterpreted the results of a CDC survey of the highest excise taxes on beer, have shown high school drinking rates.45 Still another no signs of a corresponding decrease in under- CASA study, this one in 1994, declared that age drinking.53 One of the NAS study’s own college binge drinking had reached “epidemic panelists, Dr. Philip J. Cook of Duke proportions” and that binge drinking among University, wrote as recently as 1999 that “the college women had tripled in 10 years.46 Forbes scholarly consensus on the public-health ben- Media Critic criticized this study, too, finding efits of alcohol excise taxes appears to have that its conclusions were based on conjectures broken down in recent years.”54 offered by health educators at universities, not Indeed, a 1999 study by T. S. Dee in the on actual survey data.47 Journal of Public Economics found that beer Studies such as those published by CASA taxes have no statistically significant effect on are generally accompanied by aggressive pub- college and teen drinking.55 Dee’s methods

5 differed from those used in earlier research. addicts and alcoholics who contribute most Dee focused on in-state variations in beer to external costs are those least likely to quit taxes as opposed to cross-state variations, on the habit as a result of the imposition of an the theory that differences between the states excise tax. might be more attributable to cultural atti- Instead, the people most likely to change tudes toward alcohol than to the imposition their habits because of higher taxes are mod- of excise taxes. His results supported his theo- erate and social drinkers, a point the NAS ry. Beer tax rates within individual states had study concedes: “ [T]he most ‘cost-effective no significant effect on underage drinking. strategy to reduce underage drinking’ includes State and city governments have long policies that produce their main effects not on levied hefty taxes on tobacco products under underage drinking, but rather on the overall a similar theory—that decreasing the avail- level of drinking in the population.”59 ability of cigarettes will likewise decrease Excise taxes are being “sold” as a solution demand. There’s some evidence that that’s to a problem (surges in binge and underage the case, at least when cigarettes are taxed at drinking) that may not exist. Moreover, the very high rates, such as the $3 per pack tax in taxes are a remedy that probably won’t work, New York City. But, in order to have a signif- and they carry with them the added burdens The campaign icant impact, the tax hikes need to be steep, of penalizing lower-income workers and cre- against alcohol which then spawns black markets and the ating black markets. Unfortunately, budget seeks to expand ancillary crime that comes with illegal mar- woes in state and city government keep alco- kets. In New York City the bootleg cigarette hol taxes on the table. censorship market has thrived for decades, diverting mil- precedents that lions of dollars from lawful businesspeople 56 have already been and into the pockets of criminals. Censorship There are other negatives to excise taxes as established for well. Alcohol taxes are regressive, falling dis- The campaign against alcohol seeks to tobacco products. proportionately on the poor, who spend a expand censorship precedents that have greater percentage of their income on alco- already been established for tobacco products. hol. According to David Rehr, president of A September 2003 Christian Science Monitor edi- the National Beer Wholesalers Association, torial says: “Congress banned cigarette adver- half of all beer in the United States is sold to tising from television and radio altogether, people who make less than $45,000 per beginning in 1971. Doing the same with alco- year.57 The Congressional Budget Office hol would be a good start.”60 The editorial ran reports that tobacco excise taxes have actual- in response to a Federal Trade Commission ly become more regressive over time, as mid- report that an uncomfortable amount of alco- dle- and upper-income earners tend to quit hol advertising is reaching underage audi- smoking at a greater rate than do low-income ences.61 In response, the alcohol industry earners once tax hikes go into effect.58 agreed to limit its advertising to media for Excise taxes also unfairly force all drinkers which the underage audience is typically 30 to pay for the societal costs attributable to a percent or less of the total audience.62 small number of drinkers who abuse alcohol. The Christian Science Monitor isn’t alone. The taxes are often passed under the justifi- cation that they’ll offset the negative exter- • In a strategy conference hosted by the nalities caused by excessive alcohol consump- Educational Development Center in tion—health care costs, the costs of policing Boston this year, a bevy of anti-alcohol drunken drivers and treating their victims, advocacy organizations recommended the costs of domestic abuse and physical vio- banning all radio, television, and print lence caused by excessive drinking, and so alcohol advertising.63 forth. But common sense suggests that the • The CASA “Teen Tipplers” study men-

6 tioned earlier was released just as the authors seek to accomplish the same end NBC television network was considering indirectly by enforcing limits on billboard allowing liquor companies to run com- advertising of alcohol and banning alco- mercials during some of its program- hol ads “from the horizons of schools, ming. Rep. Frank Wolf (R-VA) and 12 churches, and public housing centers.”68 other members of Congress sent a letter to NBC promising regulatory retaliation In 1999 the Bureau of Alcohol, Tobacco if the network went through with its and Firearms approved a proposal from plans. “We would hate to see your net- winemakers to include “directional” health work become the object of a public back- statements on wine labels, which advised lash against network hard-liquor adver- consumers to contact their personal physi- tising or the reason that Congress steps cians or consult government agencies to in to protect the public interest and pub- learn more about recent research indicating lic airwaves by setting up a federal regu- the health benefits of moderate alcohol con- latory system for network advertising,” sumption. Two statements were allowed only the letter said.64 after a litany of negative warnings about alco- • After a study by the Center for Alcohol hol use and were hardly ringing endorse- Marketing to Youth criticized the alcohol ments. One said, “Alcoholic beverages have industry for targeting its advertising at been used to enhance the enjoyment of meals underage drinkers (including advertising by many societies throughout human histo- on television programs that air during ry,” and the other said, “Current evidence the school day and, in some cases, as late suggests that moderate drinking is associat- as 11 p.m. or midnight),65 Sens. Mike ed with a lower risk for coronary heart dis- DeWine (R-OH) and Christopher Dodd ease in some individuals.”69 Allowing the new (D-CT) issued a joint press release labels made sense because at the time, despite announcing their “intention to monitor recent research touting the health benefits of underage drinking trends and the extent wine, polls showed that most Americans were to which alcohol industry advertising is still unaware of them.70 reaching underage youth.” “We intend to But in 2003, after heavy lobbying from hold advertisers accountable,” Dodd said. anti-alcohol groups, the BATF successor “Our families and our children in agency in charge of alcohol, the Federal Tax Connecticut and Ohio and all across the and Trade Bureau, effectively negated BATF’s nation deserve better.”66 1999 ruling, decreeing that directional health • In their 1996 book Body Count, former statements could not be included on wine drug czar William J. Bennett, former labels without additional disclaimers about White House aide John J. DiIulio Jr., and the negative effects of alcohol consumption. current drug czar John P. Walters have a The Center for Science in the Public Interest section titled “Restricting Alcohol, hailed the ruling, writing in a press release, Cutting Crime.” In their proposal to limit “Although a blanket ban on all health claims the negative externalities of alcohol and health-related statements would have Bennett, DiIulio, abuse, the authors advocate making been preferable, we believe the regulations “strong efforts to limit alcoholic beverage effectively shut the door to industry efforts and Walters advertising.” They write, “The alcohol to promote the healthfulness of drinking.”71 advocate making industry seems perfectly well aware of the A 2003 poll by the Institute of Social relationship among alcohol, disorder and Research at the University of Michigan found “strong efforts to crime—and in some infamous cases, has that 80 percent of respondents thought the limit alcoholic been quick to exploit it for commercial health drawbacks of alcohol consumption beverage gain.”67 Instead of calling for an outright far outweighed the benefits, and 44 percent ban on billboards advertisements the thought the government was doing too little advertising.”

7 Keeping the to regulate alcohol.72 Another poll by the • The city of San Diego passed a similar ordi- public ignorant American Beverage Institute taken in 1998 nance, removing over half of the city’s bill- found 55 percent of respondents agreeing board space from use by beer and alcohol of alcohol’s that the spirits industry is a “harm” or “great industry firms. health benefits harm” to society. Half thought the same of • Baltimore has banned the advertisement the beer industry.73 of alcohol or tobacco in any “publicly visi- obviously makes 77 By preventing the alcohol industry from ble location.” it easier to enact communicating the health benefits of its • Chicago, adopted an ordinance based on policies that products, anti-alcohol groups and govern- Baltimore’s model.78 ment agencies ensure that public debate about • Los Angeles, Washington, DC, Seattle, and restrict the alcohol and public health will be dominated Albuquerque are considering, but haven’t public’s access to by anti-alcohol groups and government agen- yet adopted, the Baltimore model.79 alcohol. cies. Keeping the public ignorant of alcohol’s health benefits obviously makes it easier to Just how those bans will hold up to First enact policies that restrict the public’s access Amendment scrutiny isn’t yet clear. The to alcohol. The point here is a very modest Baltimore ban was upheld by a federal appel- one: “Self-serving” statements from the liquor late court in 1994.80 In Anheuser-Busch v. industry are not automatically false. And state- Schmoke, the Fourth Circuit Court of Appeals ments from “public health” activists are not held that restrictions on commercial speech automatically true. were allowable under the First Amendment so There’s evidence that the strategy of sup- long as the restrictions were narrowly drawn pressing positive information does affect the to address a substantial government interest, political climate. A December 2002 survey by as outlined in the landmark commercial the Alcohol Epidemiology Program at the speech case Central Hudson Gas and Electric v. University of Minnesota, for example, found Public Service Commission.81 The court held that that 70 percent of respondents favor outright the city of Baltimore’s interest in minimizing bans on “youth-oriented” alcohol packaging, the external effects of alcohol was substantial 67 percent favor banning liquor commercials and that the restrictions banning certain sub- on television, 62 percent favor banning “alco- stances from billboard ads were narrow hol marketing with athletes,” and 61 percent enough to satisfy the First Amendment. The favor banning all billboard advertisements of U.S. Supreme Court declined to hear an alcohol.74 The billboard ban idea in particular appeal from Anheuser-Busch.82 has found resonance in cities across the coun- However, in the 1996 case 44 Liquormart, try and has been the subject of several court Inc. v. Rhode Island,83 the Supreme Court over- battles. On its website, the Alcohol Epide- turned a Rhode Island law banning offsite miology Program recommends that propo- advertising of alcohol prices. Rhode Island nents of billboard bans cite poll statistics to officials maintained that the ads would drive get around objections from detractors.75 down the price of alcohol and that there was a Not surprisingly, several cities have con- compelling state interest in preventing verted those recommendations and survey increased consumption. Hence, the state con- results into policy. ceded that the chief aim of the ad moratorium was not to address any “externality” related to • In 1998 the city of Oakland, California, alcohol abuse. Rather, the chief aim was to adopted an ordinance prohibiting alco- diminish the lawful consumption of alcohol. hol advertising within three blocks of The Supreme Court held that a state must any recreation center, church, or day care meet a heavy burden in prohibiting commer- facility. The ordinance left only 70 of the cial speech relating to a legal activity and that city’s 1,450 billboards available for alco- the state’s interest in limiting alcohol con- hol advertising.76 sumption wasn’t sufficient to justify an out-

8 right ban. In a concurring opinion, Justice drunk driving—or, more accurately now, Clarence Thomas went even further. Thomas drinking and driving. Since the early 1980s, wrote that Rhode Island’s “asserted interest organizations such as Mothers Against is to keep legal users of a product or service Drunk Driving have waged aggressive, high- ignorant in order to manipulate their choices profile, ubiquitous campaigns to raise public in the marketplace,” and that in such cases awareness of a formidable threat to public “such an ‘interest’ is per se illegitimate and safety that far too few people take seriously. can no more justify regulation of ‘commer- The campaign was enormously successful. cial’ speech than it can justify regulation of Alcohol-related traffic deaths have dropped ‘noncommercial’ speech.84 by 40 percent since 1982,87 even as non-alco- Most recently, in April 2003 the U.S. Court hol-related traffic fatalities have increased by of Appeals for the Sixth Circuit struck down a 39 percent.88 The total number of victims of Cleveland city ordinance that banned alcohol drunk drivers has stabilized since the mid- billboard advertisements in residential areas 1990s.89 The percentage of drivers who had and limited them to a few designated districts blood alcohol levels above the legal limit within the city.85 However the courts come dropped from 27 percent in 1991 to 21 per- down on the constitutionality of bans on alco- cent in 2001.90 Among underage drivers— hol advertising, civil libertarians ought to be often cited by temperance advocates as a rea- Sandy Golden, disturbed by the latest efforts to curb a legal son to restrict access to alcohol—there was a a spokesperson industry’s efforts to promote its product. The similar decrease. The number of drivers for the Campaign most prominent advocates of billboard bans involved in fatal accidents who were intoxi- and restrictions on alcohol advertising on TV cated dropped by 24 percent between 1991 for Alcohol-Free and radio and at sporting events have made no and 2001.91 Kids, has said, secret of their intent to follow the example set In short, attitudes have changed. Today’s “We’re 10 to 15 by similar bans on tobacco products. Sandy drunk driver is a pariah. It is no longer socially Golden, a spokesperson for the Campaign for acceptable to stagger out from a pub and slip years behind the Alcohol-Free Kids, has said, “We’re 10 to 15 behind the wheel. Chuck Hurley, a spokesman tobacco people, years behind the tobacco people, and we want for the National Safety Council—which advo- to close the gap.”86 cates tougher drinking and driving laws—has and we want to Rhode Island’s defense of its ban on alco- said: “We’ve already deterred virtually all of the close the gap.” hol advertising could not have been more social drinkers. We’re now down to the hard clear. The aim of measures enacted to limit the core of people who drink and drive in spite of scope and reach of alcohol advertising is, sim- public scorn.”92 Former MADD president ply, to depress the consumption of alcohol. In Katherine Prescott agreed, telling the New York a free society, politicians should not concern Times that the problem “has been reduced to a themselves with the diets of their constituents. hard core of alcoholics who do not respond to At most, the surgeon general might issue a public appeal.”93 Unfortunately, those conclu- report to prove that orange juice improves sions seem to run counter to the policies being health but that, say, chewing gum is detrimen- pushed by Hurley and Prescott’s organizations, tal to health. Ultimately, however, Americans as well as the other key players in the temper- ought to make up their own minds about ance movement. And, increasingly, those poli- what they eat and drink, without the social cies are finding warm receptions in state legis- engineering schemes of politicians. latures. In 2002 and 2003 alone, more than 100 new pieces of legislation further restricting Police Powers already stringent drinking and driving para- meters were introduced in 31 different Perhaps the boldest front on which the states.94 Some of those laws were reasonable, neoprohibition effort has been moving is of course—increasing fines for repeat offend-

9 ers, for example. But others attempted to strip reports, and dismissed NHTSA’s statistical drunk driving suspects of legitimate criminal modeling mechanism. Disallowing for the protections. One law introduced in Virginia myriad scenarios in which it couldn’t be con- attempted to do away with the practice of clusively proven that a drunk driver’s negli- making a blood sample available to the defen- gence was to blame, the Los Angeles Times dant for independent testing after a first sam- found that about 5,000 of those 17,448 traf- ple used by law enforcement revealed an ille- fic deaths in 2001 involved a sober person gal level of intoxication.95 Laws like these find killed by a drunk driver. The investigation support from the public because temperance detailed one accident in Aliceville, Alabama, advocates and their supporters in govern- where a state trooper merely suspected that a ment have been enormously successful in driver had been drinking. Though no alcohol propagating the idea that drunk driving still test was ever performed, and the family of the poses an increasing threat to public safety, victim later contended in a lawsuit that the despite the figures cited above. accident was the result of a rollover defect, One example of how those advocating the fatality was still attributed to alcohol by tougher drinking and driving laws have NHTSA.100 manipulated data is the touting of a figure Perhaps most revealing of the campaign they call “alcohol-related fatalities.” The against social drinking is the way the lan- National Traffic Highway Safety Admin- guage of public officials and anti-alcohol istration uses this number each year in its advocates has changed. “Drunks” have been Fatality Analysis Reporting System.96 The replaced by “drinkers,” “drunk driving” by problem with the term “alcohol-related,” “drinking and driving.” It’s a subtle change, however, is that it’s based on statistical mod- but a significant one. Attempting to demo- eling and creates an impression among the nize the mix of driving with any amount of public that’s at odds with what it actually alcohol consumption is a clear departure represents. Most hear “alcohol-related fatali- from a campaign focused on highway safety. ties” and assume “fatalities caused by drunk It is an effort to more generally change the drivers.” In truth, “alcohol-related” fatalities drinking behavior of Americans. No drinking include any accident in which alcohol was and driving means no beer or two at the ball- “Alcohol-related” even remotely involved. game before coming home, no after-dinner fatalities include “Alcohol-related” fatalities include acci- Irish coffee, no glass of wine with a dinner accidents in dents in which a drunk driver was killed by out. Consider: the negligence of a sober driver, a drunk pas- which a drunk senger was killed in a car driven by or hit by a • A series of taxpayer-funded radio ads in driver was killed sober driver, a drunk pedestrian was killed by Washington, DC, told motorists, “If by the negligence a sober driver, and even all of the previous you’re still drinking and driving, the new scenarios when the actors weren’t even legal- [lower blood-alcohol threshold] law is of a sober driver, ly drunk but had merely consumed any aimed right at you. Never drink and a drunk passen- amount of alcohol at all.97 The number can drive.”101 even include accidents in which there’s no • A joint campaign undertaken by MADD ger was killed in a evidence of alcohol but under circumstances and the U.S. Department of Transpor- car driven by or in which alcohol is commonly involved, such tation was titled “You Drink & Drive. You hit by a sober as a lone driver crashing his car in the early Lose.” U.S. Transportation Secretary hours of the morning.98 Norm Mineta said during the campaign: driver, or a drunk In 2001 NTHSA claimed 17,448 people “If you drink and drive, you lose. If we pedestrian was were killed in alcohol-related traffic acci- catch you drinking and driving, we will dents.99 A Los Angeles Times investigation con- arrest you and prosecute you.”102 killed by a sober ducted in December 2002 looked at that • At that same campaign kickoff, William driver. number, looked at a sampling of accident B. Berger, former president of the

10 International Association of Chiefs of put up a fight. Iowa State Senate Majority Ohio State Police, declared, “We will not allow a man Leader Steward Iverson called the federal .08 Senate President or woman to leave [a sobriety checkpoint] law “blackmail.” “Why is .08 the magic num- knowing they consumed alcohol.” Note ber? By lowering it to .08, we are going to catch Richard Fenan Berger’s choice of words—not that “they more of what I call the social drinkers. I had told the Los are drunk,” merely that “they consumed two friends killed by drunk drivers, but we 103 109 Angeles Times: alcohol.” have to be realistic.” Ohio State Senate • DOT also released to local law enforce- President Richard Fenan told the Los Angeles “The people who ment officials a kit of information on Times: “The people who have had a few beers have had a few how to initiate the details of the cam- or a glass of wine are not the problem. We call paign. “The campaign’s message is a sim- it prohibition drip by drip. It is prohibitionists beers or a glass of ple one,” the kit says, “don’t drive after who want this. Their goal is zero tolerance.”110 wine are not the 104 drinking alcohol. . . .” The most obvious objection to .08 per se is problem.” • The American Beverage Institute con- that it does little to improve highway safety. It ducted a survey of driver manuals at vari- will of course increase the number of “drunk” ous state departments of motor vehicles. driving arrests because it increases the pool of California, for example, scolds that “one “drunks” by redefining what it means to be drink can make you an unsafe driver.” drunk, but there’s no significant evidence to Kentucky and Massachusetts say that suggest that removing drivers who register “one drink will affect your driving.” between .08 and .10 will save lives. In fact, the Nevada warns, “There is no safe way to available evidence suggests otherwise: drive after drinking.” Oregon cautions, “ANY level of alcohol in your blood • California was one of the first states to impairs to some degree your ability to implement .08 per se, and a study con- drive.”105 ducted a year later by the state’s • The state of Virginia just approved Department of Motor Vehicles found $500,000 for a radio advertising cam- that the law’s “effect was primarily limit- paign to air 22,000 total ads on 52 sta- ed to individuals who generally restrict tions incorrectly telling listeners that their alcohol consumption before driv- “it’s illegal to drink and drive.”106 ing anyway.”111 • California’s alcohol-related fatality rates How Low Will It Go? Lowering the Blood did drop the first year .08 per se was Alcohol Concentration Level to .08 implemented, but at a rate (6.1 percent) The most prominent law that exemplifies that was lower than the national average the shift from “drunk driving” to “drinking (6.3 percent).112 and driving” was signed by President Clinton • Only 2 of the 10 states with the lowest in 2000.107 That federal law (frequently referred traffic fatality rates in 2000 had at that to as .08 per se) encouraged states to lower the time adopted .08 per se.113 legal blood alcohol concentration (BAC), mea- sured in percentages, from .10 to .08. That Traffic fatality statistics offer further evi- means that, as of October 2003, drivers with a dence of the futility of .08 per se: BAC of .08 or higher were automatically assumed to be intoxicated. Any state that does • Two-thirds of the drivers in alcohol- not make the policy change will lose federal related fatal accidents have a BAC of .14 highway funds. or higher. The average BAC in fatal acci- Since that law went into effect, all but six dents involving alcohol is .17.114 states—Minnesota, Colorado, New Jersey, • In the last 15 years, more drivers regis- Delaware, Nevada, and West Virginia—have tering BAC levels of .01 to .03 caused complied with the .08 mandate.108 A few states fatal accidents than did drivers with

11 BACs from .08 to .10.115 a new series of charts issued by MADD and • A National Highway Traffic Safety NHTSA after the federal .08 law passed Administration study of the first five changed the scale a bit. The new charts say a states to adopt .08 per se measured the 180-pound person needs five drinks to hit impact of the law in 30 different high- .08. But the new charts stretch the allotted way safety categories. States with .08 time for those five drinks from one hour to cumulatively got “safer” in 9 of the 30 three.123 Nevertheless, when trying to con- categories but were unchanged or “less vince a state legislator to lower BAC limits, safe” in the remaining 21.116 it’s more persuasive to say a that 180-pound • Looking abroad, Sweden has a BAC person needs five drinks to hit .08 than two threshold of .02, yet the average BAC in or three because it allays concerns about alcohol-related fatal accidents there is criminalizing moderate social drinking. still .15.117 The preponderance of the evidence, then, suggests that lowering the legal BAC thresh- To this day NHTSA claims that a nation- old from .10 to .08 does little to address the wide .08 per se rule would save 500 lives per primary alcohol-related threat to highway year, a number still cited by MADD118 and safety—the hard drinkers who cause most of Lowering the other anti-alcohol groups across the country. the accidents. It’s akin to lowering the speed legal BAC The Clinton administration cited that num- limit from 65 to 50 in order to catch people 119 threshold from ber when promoting the federal .08 law. who regularly drive 100 mph. The new “crim- Numerous state government agencies also inals” really aren’t the problem, and targeting .10 to .08 does cited that number in passing .08 laws before them diverts valuable law enforcement little to address the 2003 deadline. But the 500 number is resources from catching the people who are. the primary based on a study by longtime anti-alcohol In Minnesota lawmakers decided that the activist Ralph Hingson, a former vice presi- amount of money it would cost the state to alcohol-related dent of MADD.120 In 1999 the U.S. General prosecute drivers who weren’t a threat to threat to highway Accounting Office looked at Hingson’s public safety would exceed the amount of report and his “500 lives saved” conclusion federal funding the state would forego by not safety—the hard and declared it “unfounded.”121 adopting .08. State legislator Tom Rukavina drinkers who The GAO has looked at several studies told the Los Angeles Times that .08 per se cause most of the NHTSA has done on the effectiveness of .08 would result in about 6,000 new criminal per se and concluded that “the evidence does arrests at a cost of about $60 million to the accidents. not conclusively establish that .08 BAC laws by state.124 That was more than Minnesota themselves result in reductions in the number would give up from the federal government if and severity of crashes involving alcohol . . . it kept its .10 standard. Nevada legislators NHTSA’s position—that the evidence was con- voted down .08 for similar reasons.125 clusive—was overstated.”122 Yet NHTSA’s posi- Yet $40 million of NHTSA’s $225 million tion on .08 per se continues to be the official in highway traffic safety grants is specifically position of the federal government, and its earmarked for “Alcohol-Impaired Driving studies are still touted by state legislators, Countermeasures Incentive Grants designed activists, and editorial boards that support .08, to encourage states to pass strong anti-drunk- despite the GAO’s critical assessments. driving legislation.”126 An additional $41 mil- The National Motorists Association lion of its operations and research budget is reports another statistical fudge employed by designated for “impaired driving deter- MADD and NHTSA to promote .08 per se. rence.”127 That is in addition to whatever por- Previously, BAC charts issued by both organi- tions of other budgetary items find their way zations showed .08 as the reasonable BAC a to drunk driving deterrence programs. The normal person could expect to hit after two Los Angeles Times estimates that the agency or three drinks in an hour. NMA reports that spends as much as $300 million—more than

12 half its budget—on fighting drinking and dri- and anti-alcohol activists and some laws ving.128 Critics look at those numbers and already enacted suggest movement in that question why NHTSA devotes so much of its direction: budget to a problem that’s been on the decline for a quarter century, while sober-dri- • MADD Canada recently unveiled its ver highway fatalities far outnumber alcohol- campaign to initiate a .05 national stan- related fatalities and have increased by nearly dard. The organization conducted a poll 40 percent in the last 20 years. showing that 66 percent of Canadians The .08 per se laws grow more absurd support the idea.132 when one compares the amount of impair- • Minnesota DWI Task Force chairman ment that may be attributable to a .08 BAC Steve Simon said in 1997 that “ultimate- with that caused by other activities motorists ly, it [the BAC threshold] should be .02 routinely engage in while driving: percent.”133 • The state of Michigan has set a BAC • In 1997 the New England Journal of limit of .02 percent for any state officials Medicine published a study concluding on duty.134 that drivers using cellular phones experi- • In North Royalton, Ohio, police can cite enced the same amount of impairment motorists with a “physical control viola- as those with a BAC of .10.129 tion” for the mere smell of alcohol in a • A study by Britain’s Transport Research vehicle.135 Laboratory found that drivers using • Legislators in Arkansas and New Mexico handheld phones had reaction times 30 have proposed .07 and .06 limits, respec- percent slower than drivers impaired by a tively; and Delaware State Rep. William .08 BAC.130 And an American Automobile Oberle, when submitting his bill to Association study conducted in 2001 move the state to .08, expressed his found that cellular phone use was less of desire for “zero tolerance, like they have a distraction to drivers than, among other in Europe.” An advocacy group also things, having children in the back seat, points out that at least six other states eating while driving, or fumbling with a have considered legislation moving the CD or radio tuner.131 BAC threshold below .08.136 • An editorial in Utah’s Deseret News called Forty-five of the 50 states (plus the for the state—which was the first to An editorial in District of Columbia and Puerto Rico) have enact .08—to lower its BAC threshold to enacted laws requiring the suspension of dri- .02, not because it would make high- the Deseret News vers’ licenses and even jail time for motorists ways safer, but because it would effect a called for the who are no more impaired than most of us “cultural shift” in attitudes about alco- 137 state to lower its are on our commute to and from work, sim- hol. ply because the impairment happens to be • Former Illinois state senator Robert BAC threshold to induced by drinking instead of something Molaro says, “I think 40 years from now, .02, not because it less socially stigmatized. our grandchildren and our great-grand- And there’s little reason to think the effort children are going to say, ‘You mean we would make will stop at .08. Different people absorb alco- used to let people have a beer or two and highways safer, 138 hol into the bloodstream at different rates, go drive a car?’” but because it but by most estimates a 120-pound woman • California Sen. Barbara Boxer has said, “I can easily get to .08 by drinking two glasses of see this country going to zero tolerance, would effect a wine in two hours. If .08 doesn’t represent period.”139 “cultural shift” in significant driver impairment, it’s troubling to think that the threshold could fall even The Department of Transportation is attitudes about lower. But statements from public officials already working to build the case for zero tol- alcohol.

13 In Florida police erance. In a recent DOT report, “Driver admitting to having two glasses of wine with 146 officers are Characteristics and Impairment at Various dinner. He blew .03. Such arrests rarely BACs,” the agency concludes that “a majority achieve convictions after full-blown trials, but permitted to of the driving public is impaired in some even a simple arrest can seriously damage the arrest motorists important measures at BACs as low as .02 reputations of public figures or ruin the 140 they suspect are percent.” “Finally,” the report reads, “this careers of professionals such as teachers and laboratory study indicates that some impor- school principals. driving under the tant driving skills are impaired when there influence of has been use of even small amounts of alco- Sobriety Roadblocks and the hol.”141 MADD London has used the report Constitution alcohol, even if to call for a .05 BAC limit in England.142 The most vital component of NHTSA and the motorists Many jurisdictions have in fact already MADD’s 2002 joint “You Drink & Drive. You pass a breath enacted modified zero tolerance. For exam- Lose” campaign is the establishment of ple, merely registering a BAC below .08 does- “sobriety checkpoints”—a euphemism for test. n’t always get a motorist off the hook. In sev- roadblocks where police officers stop eral cities and counties across the country, motorists without probable cause and police officers have the discretion to arrest administer breath tests.147 Taken together drivers for “driving under the influence” if with .08 per se and the fact that some juris- the driver merely admits to having consumed dictions leave “driving under the influence” alcohol or any amount of alcohol is regis- (as opposed to “driving while intoxicated”) tered in a breath test. When that is combined completely to the discretion of law enforce- with random sobriety checkpoints on road- ment officials at the roadblocks, random ways (a topic that will be discussed in more sobriety roadblocks are perhaps the most detail below), a motorist could have a beer or potent and far-reaching victory of the neo- two, be well under .08, drive safely and prohibitionist movement. According to the responsibly, and still be subject to arrest for MADD website, 39 states plus the District of “driving under the influence” and all of the Columbia now employ sobriety roadblocks embarrassment, public disgrace, and damage in the ongoing campaign against drinking to reputation that come with a criminal and driving.148 charge of mixing alcohol with driving. By their very nature, sobriety roadblocks In Florida police officers are permitted to are designed to catch motorists who aren’t arrest motorists they suspect are driving under driving erratically enough to otherwise be the influence of alcohol, even if the motorists caught by law enforcement. And, as the stud- pass a breath test. In fact, even if a urine test ies mentioned above indicate, the odds are later proves negative, the State Attorney’s that if motorists are driving with BAC levels Office could still press charges, based solely on below .10, they aren’t impaired enough to be the observations of police officers administer- a significant threat to public safety, either. ing roadside sobriety tests.143 NHTSA instructs local police depart- Until 1994 in Washington, DC, blowing ments to publicize the fact the checkpoints .05 or lower was prima facie evidence that a will be in place, a curious undertaking if the motorist wasn’t driving under the influence of aim is to actually catch repeated hard-drink- alcohol. That law has since changed.144 Today, ing drivers, as opposed to merely discourag- any positive reading on a breath test is enough ing moderate drinkers from getting behind for a police officer to consider arrest—in effect the wheel.149 Indeed, the staunchest propo- making the nation’s capital a zero tolerance nents of sobriety roadblocks admit that their jurisdiction.145 In an op-ed, restaurant indus- intended and primary effect is to deter the try spokesman John Doyle writes about Willis social drinker, not to actually catch drunk Van Devanter, a 66-year-old man arrested at a drivers. In its instructions to local communi- sobriety checkpoint in Washington, DC, after ties, the DOT writes, “Because only a small

14 percentage of the driving population is rights of anyone with a driver’s license. In his affected, most people will only know about dissent, Justice John Paul Stevens pointed sobriety checkpoints through word-of- out that the net effect on highway safety of mouth or media reports.”150 sobriety checkpoints is “infinitesimal and The problem, once again, is that road- possibly negative.”155 Stevens also questioned blocks may indeed deter social drinkers, but the supposedly “slight” intrusion on social drinkers aren’t the primary threat to motorists indicated by Rehnquist, noting public safety. What’s worse, they occupy that “a Michigan officer who questions a police officers and law enforcement re- motorist at a sobriety checkpoint has virtual- sources that would be better spent pursuing ly unlimited discretion to detain the driver the real threats to public safety—people who on the basis of the slightest suspicion.”156 drive with BACs of .15 or higher and who are Justice Stevens was most penetrating, unlikely to be deterred by public relations however, when criticizing the majority’s dis- campaigns announcing the initiation of interest in acknowledging “the citizen’s inter- roadblocks. est in freedom from random, announced Some people might wonder how it is that investigatory seizures.”157 Noting that the police can stop a car without probable cause, real aim of checkpoints is to deter drinking force a breath test, and arrest a driver for by people who will never be stopped at them, Justice Stevens operating a car under the influence. The Stevens described the roadblocks as “elabo- described the answer: The U.S. Supreme Court has ruled rate, and disquieting, publicity stunts. The roadblocks as that motorists don’t have Fourth Amend- possibility that anybody, no matter how ment rights when it comes to sobriety road- innocent, may be stopped for police inspec- “elaborate, and blocks.151 In Michigan Department of State Police tion is nothing if not attention getting.”158 disquieting, v. Sitz, the Supreme Court overturned a After the Supreme Court’s ruling in Sitz, publicity stunts.” Michigan Court of Appeals ruling that road- the Michigan State Supreme Court took up blocks violate the Fourth Amendment rights the case and promptly found the same sobri- of motorists.152 Writing for the majority, ety roadblocks to be in violation of the state Chief Justice William Rehnquist reasoned constitution.159 Three other state supreme that the magnitude of the drunken driving courts have also found such roadblocks to be problem outweighed the “slight” intrusion inconsistent with their state constitutions.160 on motorists “briefly” stopped at sobriety Nevertheless, the Sitz precedent sanc- roadblocks.153 tioned roadblocks for any state interested in Part of the case Rehnquist made in deter- enacting them if the state supreme court mining the severity of the drunken driving would allow them. Interestingly, since Sitz, problem, however, was again predicated on the Supreme Court ruled in 2000 that similar “alcohol-related” traffic fatalities; Rehnquist roadblocks set up to check for illicit drugs are cited a claim that drunk drivers were respon- in violation of the Fourth Amendment.161 sible for more than 25,000 roadway deaths Interesting, but not altogether surprising. annually.154 As noted earlier, those numbers For 20 years the courts have been carving out grossly overestimate the actual number of exemptions from constitutional safeguards sober individuals killed by the negligence of when it comes to drinking and driving. As drunk drivers, meaning that in applying his noted, drunk driving suspects have virtually balancing test Rehnquist seriously overstated no Fourth Amendment rights. Here are some the severity of the threat drunk driving poses other rulings to note: to public safety. This is a clear example of how NHTSA’s • In 1983 the Supreme Court ruled that, fudging of numbers has had real-world poli- when it comes to DUI suspects, the Fifth cy implications. In the Sitz case, it played a Amendment right against self-incrimi- part in abrogating the Fourth Amendment nation needs to be relaxed.162

15 • In 1989, although the Sixth Amendment available to suspects, it’s easy to see how these to the Constitution guarantees a jury trial laws, taken together, can affect the decision for “all criminal prosecutions,” the Court about having a drink on an evening out. The ruled that there is no constitutional right campaign against drunk driving is no longer to a jury trial in DUI cases, as long as the a campaign against drunk driving. It has mor- defendant isn’t subject to more than six phed into a campaign against drinking. months in jail.163 • In 2002 the Supreme Court of Wisconsin ruled that police officers can forcibly take Misplaced Zeal: “You Can’t blood samples from people who are sus- Be Drunk in a Bar” pected of driving under the influence. The court concluded that such warrant- In December 2002 police in Fairfax less blood draws from protesting, non- County, Virginia, initiated a series of “stings” consenting adults were justified because in bars and taverns in the jurisdictions of “the dissipation of alcohol in the blood Reston and Herndon.169 Eighteen tavern stream constituted an emergency.”164 In patrons were singled out, while still inside the 1998 a 33-year-old man by the name of tavern, and ordered to submit to alcohol Terry Jones died as a result of a struggle breath tests. Half of them were then arrested with police officers who were trying to for “public intoxication.” None of the patrons forcibly draw a blood sample.165 had made an attempt to get behind the wheel of a car. None had been a nuisance for bartenders As a result of those rulings, states have or caused any type of disturbance. Several of seized on the exemptions carved out for them the people arrested were actually accompa- by the courts at the urging of anti-alcohol nied by “designated drivers.” Police were also groups. Forty-one states now have “adminis- considering fining the bars where the intoxi- trative license revocation,” meaning DUI sus- cated patrons were arrested. pects can have their licenses rescinded before Police Chief J. Thomas Manger told the any trial has taken place.166 Thirty-seven Washington Post: “Public intoxication is against states have turned the Fifth Amendment safe- the law. You can’t be drunk in a bar.” When guard against compelled self-incrimination asked where someone could be drunk, he inside out and impose harsher criminal penal- replied: “At home. Or at someone else’s home, ties on those who refuse to take breath tests and stay there till you’re not drunk.”170 than on those who take them and fail.167 Despite the public outcry, Chief Manger got a Seventeen states have passed laws making it vote of public support from NHTSA. Spokes- In 2002 the tougher for DUI defendants to plea bargain man Chuck Hurley told the Post: “Nothing in than it is for other defendants.168 the Constitution says you’re entitled to be Supreme Court of What we have are legal trends that are intoxicated at these levels. These are some- Wisconsin ruled simultaneously pushing to apply drunk dri- what unusual tactics. But given the facts, I that police ving laws to lower and lower levels of intoxi- support law enforcement.”171 cation, fewer constitutional safeguards for In Waukesha County, Wisconsin, Prose- officers can drunk driving suspects, and stricter sentenc- cutor Paul Bucher authorized deputies to forcibly take ing. A DUI or DWI conviction in most states enter private residences without warrants, “by can mean fines of as much as $10,000, a six- force if necessary,” if they suspected minors blood samples 172 month driver’s license suspension, and even might be drinking inside. Such “innovative” from people who jail time for a first offense. When one consid- approaches to the underage drinking problem are suspected of ers that a few drinks can lead to the arrest of a won Bucher a place in the “Prosecutors as driver, the harsh penalties that follow a con- Partners” honor roll on the MADD website.173 driving under the viction, the looming presence of .08 per se, In September 2002, shortly after the influence. roadblocks, and the reduced protections Princeton Review named Indiana University

16 the top “party school” in the country, stu- how to train servers to undermine alco- In Body Count, dents there claimed that Bloomington police hol sales. Servers are encouraged, for authors Bennett, officers began arresting students for walking example, to decrease serving sizes of wine, home from bars while intoxicated.174 to serve a customer only one drink per DiIulio, and Students claimed to have been arrested while hour, and to make up for lost revenue in Walters recom- 178 walking through the parking lots of apart- alcohol sales by selling more food. mend new zoning ment complexes where they lived or while waiting curbside for sober rides home. The Another tactic used to restrict access to laws to “increase situation worsened to the point that the alcohol is to enact strict zoning and licensing the distance Indiana University Student Association sent laws to limit the concentration, and availabil- an official letter of complaint to the ity, of alcohol in certain communities. between liquor Bloomington Police Department. When Vallejo, California, requires at least 1,000 feet stores, reduce the asked by the Indiana Daily Student if he’d between liquor outlets. In addition, the city total number of rather of-age, drunk students drive them- has enacted a host of new laws that make it selves home instead of walking, Lt. Jerry extremely difficult for new establishments bars and/or Minger said: “Alcohol abuse is the problem, that sell alcohol to open. The city’s Alcohol liquor stores in not the issue of whether or not you are going Beverage Control requires servers to pay a fee to drive. Students should not be drinking to to be educated about the new laws.179 the city, and ban this excess.”175 In Body Count, authors Bennett, DiIulio, the sale of malt One of the key policy recommendations and Walters write: “The time has come to liquor to go.” found throughout neoprohibitionist litera- experiment with policies aimed at cutting ture calls for more stringent and more tight- crime and cutting alcohol availability and ly enforced “public nuisance” laws, which consumption. The place to begin the experi- would condone actions such as the public ment is in those poor, minority, high-crime intoxication “stings” in Fairfax County and neighborhoods where the density of liquor Bloomington. But public nuisance is only outlets far exceeds citywide averages.”180 one of a host of policy objectives aimed at In addition to banning alcohol billboards restricting access to alcohol that don’t involve from “the horizons of schools, churches and taxes, censorship, or the draconian drinking public housing centers,” the authors also rec- and driving laws discussed previously. For ommend new zoning laws to “increase the example: distance between liquor stores, reduce the total number of bars and/or liquor stores in • At least 44 states have enacted some sort the city, and ban the sale of malt liquor to of “dram shop” law, which holds bars, go.”181 They also recommend restricting the taverns, and restaurants civilly liable for hours liquor can sold or served.182 damages inflicted by intoxicated cus- There’s evidence that such recommenda- tomers, even after leaving. Another 31 tions are having real-world effects: states have “social host” laws, which apply the same liability to occupants of • Currently, sections of Tacoma, Washing- private residences. Those laws seek to ton, have banned the sale of malt liquor control the environment in which alco- and fortified wine. Community activists hol is consumed instead of focusing on in the Northeast quadrant of Washing- the conduct of irresponsible drinkers.176 ton, DC, are calling for similar mea- • Twenty-two states have put some sort of sures.183 restrictions on “happy hour” drink spe- • Newark, New Jersey, recently increased cials.177 the cost of an annual liquor license from • Orange County, California, pays for a $600 to $5,000 in order to fund a new series of training seminars for bar and beverage control program.184 restaurant managers that teaches them • In Chicago, a city that should know a

17 thing or two about the unintended con- bottles; sequences of prohibition, 400 of the • prohibiting the sale of “alcopops” and city’s 2,705 precincts have now gone dry. similar alcohol products that are sweet, At least one precinct in the city has packaged in bright colors, and might attempted to go dry in every city election appeal to youth; since 1970.185 • restricting alcohol service on airplanes • In West Virginia all people under the age and in airports; and of 18 are required to be accompanied by • imposing fees on establishments that a parent or guardian while inside any sell alcohol to cover the costs of enforc- establishment that serves wine or liquor. ing these policies.187 That includes restaurants and concert and sporting venues—even if no one in Many of those policies have already been the party intends to drink.186 enacted at the state or local level. Others are under consideration. In 2002 U.S. Sen. Other laws and policies suggested by the neo- Dianne Feinstein (D-CA) floated the idea of prohibition movement include limiting alcohol service on airplanes after fight attendant unions complained of Policymakers • limiting drink discounts and specials; increased occurrences of “air rage.”188 Given should not • requiring the alcohol industry to fund the success anti-alcohol advocates have had unleash the police anti-alcohol advertisements and com- thus far, it’s a safe bet that each of those rec- mercials; ommendations is likely to get a trial run at force to arrest • prohibiting any alcohol sales within a some level in the next few years. people who hold specified area around schools, churches, In a free society, temperance advocates can contrary views and community centers; raise money, run advertisements, and gener- • restricting concurrent sales of alcohol ally seek to persuade people that liquor con- and who choose and gasoline; sumption is a waste of money or even a char- to drink liquor • restricting total alcohol outlets on the acter defect. Policymakers, however, should basis of a population ratio; not unleash the police force to arrest people responsibly. • requiring food to be sold with alcohol; who hold contrary views and who choose to • limiting the square footage a retail out- drink liquor responsibly. let can devote to alcohol products; • restricting home delivery sales of alcohol; • requiring minimum lighting levels in The Neoprohibition bars and restaurants so staff can assess Movement the level of intoxication of customers; • requiring the employment of trained Just as the 20th-century prohibition security guards at establishments serv- movement didn’t suddenly appear out of ing alcohol; thin air, modern temperance advocates are • restricting alcohol advertising to the inte- well-organized and well-funded and mount rior of establishments that sell alcohol; sophisticated public relations campaigns • prohibiting the use of cartoon charac- with specific, clearly articulated objectives. ters or “child-oriented images” to sell At the heart of the modern movement is alcohol; the New Jersey–based Robert Wood Johnson • limiting the percentage of store window Foundation, a philanthropic research organi- space used for alcohol advertising; zation with about $8 billion in assets (as of • eliminating or restricting “single-can” 2001).189 Restaurant industry advocates and sales, as well as the sale of chilled malt others have long accused the foundation of a liquor and fortified wine; neoprohibitionist agenda, though the foun- • prohibiting the sale of screw-top wine dation denies the charge.190

18 Robert Wood Johnson spokespeople have binge drinking studies were all pub- promoted the view that policymakers have been lished by CASA, an organization that too lax about “alcohol-related” problems. From received $33 million from Robert Wood 1997 to 2002, the foundation gave $265 million Johnson between 1991 and 2001.197 in grants for anti-alcohol initiatives, including • The public opinion survey conducted by grants to CASA, CAMY, CSPI, and other ven- the Alcohol Epidemiology Program at tures such as Join Together Online, and the the University of Minnesota was funded Pacific Institute for Research and Evaluation.191 by Robert Wood Johnson.198 In the early 1980s the foundation set aside • The server training program initiated by $73.6 million for a program called Fighting Orange County, California, was spon- Back, which aimed for “measurable reduction sored by Robert Wood Johnson.199 in the overall use of or demand for alcohol” in • The Center for Science in the Public 14 metropolitan areas.192 Among Fighting Interest got $1.21 million from the Back’s objectives: prohibiting public consump- foundation between 1996 and 2002.200 tion of alcohol, closing liquor outlets in risk • MADD got $3.39 million from 1996 to areas, banning liquor sales on Sunday, banning 2001.201 the sale of fortified wines and malt liquor in designated neighborhoods, and increasing Often, those organizations hitchhike on alcohol taxes.193 the attention the others generate with a Though largely a failure in the cities where study, paper, or press release. The Center for it was initially attempted, Fighting Back has Science in the Public Interest, for example, since focused on Vallejo, California, as its flag- sent out a press release shortly after the ship program.194 There, Fighting Back has per- CASA binge drinking studies, citing them as suaded the local Alcohol Beverage Control further reason to increase alcohol taxes.202 authorities to enact a host of Fighting Back The Robert Wood Johnson Foundation initiatives. In fact, the training (and fee) man- even has a formal advocate in the media. San dated by Vallejo’s ABC is administrated by Diego Union Tribune columnist Jim Gogek is an Fighting Back. One prospective store owner official Robert Wood Johnson Foundation fel- was harassed so mercilessly by ABC and low.203 His columns address alcohol policy Fighting Back that he agreed to shift his focus and regularly cite studies funded by the foun- from alcohol sales to groceries and changed dation, and he has published op-eds in, the name of his store from Val’s Liquor Store among other places, the New York Times.204 One prospective 195 to Val’s Heritage Market. Of course, there’s nothing wrong with a pri- store owner was Many of the anti-alcohol studies, pro- vate organization advocating public policy it grams, and initiatives mentioned above were believes is beneficial to public health. But the harassed so partially or fully funded by the Robert Wood Robert Wood Johnson Foundation bills itself, not mercilessly that Johnson Foundation or were published or as an advocacy organization, but as a public undertaken by organizations partially or fully health foundation. Its publications are received he agreed to shift funded by it. Robert Wood Johnson is not the by media outlets and legislators not as papers his focus from only organization interested in more strin- designed to further an agenda but as neutral, sci- alcohol sales to gent public policies, but its activities are the ence-based studies. But there’s reason to be skep- most hyped and have proven most influential tical about the supposedly scientifically based groceries and in persuading policymakers. Here are a few publications that are underwritten by the foun- changed the examples: dation. In 2000 the Robert Wood Johnson Foundation cosponsored a conference of anti- name of his store • The RAND study written by Deborah alcohol advocates in Washington, DC, “Alcohol from Val’s Liquor Cohen was funded with about $260,000 and Crime: Research and Practice for Prevention.” Store to Val’s from the foundation.196 Among the bullet-pointed “Key Learnings” to • The “Teen Tipplers,” “Revenues,” and emerge from the conference was this: “Research Heritage Market.

19 The state of and data from community partnerships and pro- unnerving. But MADD is an advocacy orga- Florida recently grams to reduce underage drinking should sup- nization, and it is becoming more apparent port the goals of the partnership/program fun- that not everyone agrees with the policies it considered a piece ders.”205 A remarkable statement, requiring that advocates. The idea that NHTSA and the of legislation that “research and data” collected from underage DOT are so closely aligned with a group that would have drinking programs should draw conclusions has a temperance agenda that they’re willing consistent with the anti-alcohol movement— to distribute its literature during police oper- increased traffic apparently even before the data are collected or ations ought to raise concerns with policy- violation fines by the research done! makers and citizens. Imagine the outcry, for More troubling, however, is the overlap example, if the Department of Labor were to $50. One dollar of between the Robert Wood Johnson Foun- hand out AFL-CIO literature at an official every fine would dation and the federal agencies charged with department event. have gone to carrying out the enforcement of federal alco- Yet the MADD-NHTSA relationship hol policy. The conference in Washington was endures. As noted previously, the organiza- MADD. cosponsored by the U.S. Department of tions shared in the launch of the “You Drink, Justice and the U.S. Department of Health You Drive, You Lose” campaign. NHTSA and Human Services.206 According to restau- administrator Jeffrey W. Runge stood along- rant advocates at the Center for Consumer side MADD officials at the press kickoff.210 Freedom, 8 of the 12 panelists for the Institute MADD’s ties to government don’t end of Medicine, which released the National there: Academy of Sciences report on underage drinking, have direct ties to the foundation or • Part of MADD’s eight-point plan to to organizations it funds.207 Robert Wood wage war on drinking and driving calls Johnson also provides supplemental funding for a $1 billion fund for sobriety check- to the U.S. Department of Education’s Higher points. That fund, of course, would be Education Center for Alcohol and Other Drug administered by NHTSA, presumably Prevention and to the Justice Department’s with MADD’s counsel.211 Office of Juvenile Justice and Delinquency • Former NHTSA chief of research and Prevention, both of which have embraced poli- evaluation James Fell now serves on cies that restrict consumer access to alcohol.208 MADD’s national board of directors.212 Even more troubling than Robert Wood • In 1997 NHTSA granted nearly a half Johnson’s ties to government are those of million dollars to MADD and other tem- MADD. MADD’s considerable lobbying perance groups for the purpose of power became apparent when the organiza- “impacting state legislative delibera- tion successfully moved Congress and tion”—that is, lobbying states for .08. Rep. President Clinton to enact .08 per se. Perhaps Billy Tauzin (R-LA) put language in less known, however, are MADD’s consider- NHTSA’s reauthorization bill preventing able ties to the federal agencies overseeing the the agency from engaging in third-party public policy areas MADD seeks to influence. lobbying.213 In October 2003 Roll Call reported that there • In 1981 NHTSA gave MADD a federal would be a sobriety roadblock at a Capitol grant for “chapter development.” Within Hill intersection in Washington, DC, from a year, MADD expanded from 11 chap- 10:30 p.m. to 3:30 a.m. “In addition to screen- ters to more than 70.214 ing drivers, police officers will distribute • The state of Florida recently considered information from the National Highway a piece of legislation that would have Traffic Safety Administration and Mothers increased traffic violation fines by $50. Against Drunk Driving,” the article said.209 One dollar of every fine would have gone Many people might not find the cozy rela- to MADD.215 tionship between MADD and NHTSA • MADD has persuaded several jurisdic-

20 tions to require DWI offenders to attend alcohol formally prohibited at the federal “Victim Impact Panels,” run by MADD, level, it isn’t difficult to imagine the day when at which offenders listen to victims of alcohol is prohibited in all but a few public drunken driving. Offenders pay costs, places and private residences. Lawmakers are and MADD has made as much as $2 increasingly lending an ear to the chorus of million annually from those panels, temperance advocates calling for alcohol to be despite growing evidence that they fail more highly priced, less available, less adver- to reduce recidivism.216 tised, more regulated, and its consumers more closely scrutinized by police. MADD is clearly wandering away from its The United States has a regrettable histo- original, admirable goal of preventing traffic ry of suspending civil liberties and the rule of fatalities caused by drunken drivers. Instead of law when it comes to controlled substances, declaring victory over drunken driving and be it loopholes in the Bill of Rights carved downsizing its operation, MADD has sought out in drunk driving laws outlined earlier in new battles to justify its staffing and budget. this paper, affirmative defense protections The main effort nowadays is to expand the def- denied to tobacco companies in civil cases,219 inition of “drunk” and to shift the focus of its or the plethora of civil liberties violations battles from irresponsible drinkers to the resulting from the country’s war on marijua- Even MADD’s “environment of alcoholism.” Charles Peña, na, steroids, and other drugs.220 We’ve seen founder has former executive director of MADD’s North- entire states bar the use of tobacco in public, expressed her ern Virginia chapter, not only parted ways with citing public health concerns. Ten years ago MADD but after his departure wrote a paper it would have been inconceivable to think regret about the that details the organization’s conversion from that a nicotine-fueled city like New York direction the public safety crusader to neoprohibitionist might one day go smoke free.221 217 group is taking: activities. Even MADD’s founder has ex- It’s not entirely unreasonable, then, to pressed her regret about the direction the think that we may one day again hear calls “I didn’t start group is taking. Candy Lightner has said of the for alcohol prohibition. In two roadblock MADD to deal organization she started: “[MADD has] cases, the Supreme Court has already deter- become far more neo-prohibitionist than I had mined that preventing drunken driving is a with alcohol. I ever wanted or envisioned. . . . I didn’t start more compelling state interest than illicit started MADD to MADD to deal with alcohol. I started MADD drugs—the Court relaxed the Fourth deal with the to deal with the issue of drunk driving.”218 Amendment for the former but enforced it on the latter. City officials and anti-alcohol issue of drunk activists are using the same public health driving.” Conclusion arguments they used against tobacco adver- tising in pushing for bans on alcohol adver- The word “neoprohibitionist” is strong. It tising. Underage drinking is used as a peg for conjures up images of 1920s’ gangsters, Eliot new legislation as often as underage smoking Ness, speakeasies, and the jazz age. It’s diffi- was. And whereas secondhand smoke pre- cult to imagine that the United States could sents unique reasons for prohibiting tobacco again make the colossal mistake of attempt- use in public that can’t be extended to alco- ing to legislate alcohol out of American life. hol, alcohol carries the unique drunk driving It’s difficult to imagine such an effort ever problem, which could be said to pose a more garnering public support. For those reasons, immediate and severe threat to public health some people wave off the neoprohibition than secondhand smoke. Many of the argu- label as overheated rhetoric. ments already used to justify the prohibition But restricting Americans’ access to alcohol of certain drugs and to prohibit public smok- needn’t come in the form of a constitutional ing in some areas, then, could just as easily be amendment. Although we may never again see applied to alcohol.

21 It is vitally important to recall that the dis- 19. Ibid., pp. 187–88. astrous era of Prohibition that ended 70 20. Quoted in Tony Hartzel and Roy Appleton, years ago began with incremental steps. “Dallas Leads U.S. in Alcohol Road Deaths,” Policymakers and citizens ignore that history Dallas Morning News, January 14, 2002, p. 11A. at our peril. 21. Important exceptions exist. For example, a pregnant woman can harm the fetus with even light alcohol consumption. See Linda Carroll, Notes “Fetal Brains Suffer Badly from Effects of Alcohol,” New York Times, November 4, 2003. 1. Richard F. Hamm, Shaping the Eighteenth Amend- ment: Temperance Reform, Legal Culture, and the Polity, 22. Abigail Zuger, “The Case for Drinking (All 1880–1920 (Chapel Hill: University of North Together Now: In Moderation!),” New York Times, Carolina Press, 1995), pp. 227, 234. December 31, 2002, p. F1.

2. See Edward Behr, Prohibition: The 13 Years That 23. Quoted in ibid. Changed America (London: BBC Books, 1997), p. 52. 24. “Light Drinking Cuts Diabetes Risk,” Associated 3. Hamm, p. 92. Press, June 9, 2003.

4. Jane Lang McGrew, The Report of the National 25. Reuven Zimlichman, M.D., “Effects of Modest Commission on Marihuana and Drug Abuse. Marihuana: Wine/Beer Drinking on Arterial Elasticity in A Signal of Misunderstanding, commissioned by Healthy European Population—The Seven President Richard M. Nixon, March 1972, part 3, European Sites Study (SESS),” paper presented at chap. 1, “History of Alcohol Prohibition,” www.drug the Annual Scientific Meeting of the American library.org/schaffer/Library/studies/nc/nc2a.htm. Society of Hypertension, New York, May 2003.

5. Ibid. 26. I. Romero et al., “Polyphenols in Red Wine Inhibit the Proliferation and Induce Apoptosis of 6. Behr, p. 46. LNCaP Cells,” BJU International 89 (2002): 950–54.

7. Ibid., pp. 30–31. 27. Holger J Schünemann et al., “Beverage Specific Alcohol Intake in a Population-Based Study: 8. Ibid., p. 151. Evidence for a Positive Association between Pulmonary Function and Wine Intake,” BMC 9. Ibid., p. 60 Pulmonary Medicine, May 8, 2002.

10. Mark Thornton, “Alcohol Prohibition Was a 28. Michael de Lorgeril et al., “Wine Drinking and Failure,” Cato Institute Policy Analysis no. 157, Risks of Cardiovascular Complications after July 17, 1991. Recent Acute Myocardial Infarction,” Circulation, September 2002. 11. Behr, p. 166. 29. Richard M. Niles, “The Use of Retinoids in 12. Ibid., p. 109. the Prevention and Treatment of Skin Cancer,” Expert Opinion, Pharmacother 3 (2002): 1–5. 13. Ibid. 30. Bahi Takkouche et al., “Intake of Wine, Beer, 14. McGrew. Spirits and the Risk of Common Cold,” American Journal of Epidemiology 155, no. 9 (2002): 853–58. 15. Ibid. 31. Thomas A. Pearson and P. Terry, “What to 16. Behr, p. 94. Advise Patients about Drinking Alcohol,” Journal of 17. H. L. Mencken, American Mercury, editorial, the American Medical Association 272 (1994): 967–68. December 1924, p. 420. 32. Richard J. Bonnie and Mary Ellen O’Connell, eds., 18. Deborah Cohen, K. Mason, and R. Scribner, Reducing Underage Drinking: A Collective Responsibility, “The Population Consumption Model, Alcohol National Research Council, Board on Children, Youth, Control Practices and Alcohol-Related Traffic and Families, Committee on Developing a Strategy to Fatalities,” Preventive Medicine 34, no. 2 (February Reduce and Prevent Underage Drinking (Washington: 2002): 187–97. National Academy Press, 2003).

22 33. David K. Rehr, “Underage Drinking,” Washing- rial, Indianapolis Star, December 2, 2002, p. 10A. ton Times, September 26, 2003, http://washington times.com/op-ed/20030925-080359-8947r.htm. 49. National Institute on Alcohol and Alcoholism, “Trends in the Prevalence of Alcohol Use among 34. Bonnie and O’Connell, p. 246. High School Seniors: Monitoring the Future Study, 1975–2001,” updated February 2002, 35. Pearson and Terry, executive summary. www.niaaa.nih.gov/databases/dkpat10.htm.

36. Kevin Corcoran, “Groups Seek 50 Percent 50. Ibid. Alcohol Tax Hike,” Indianapolis Star, January 19, 2003, p. 1A. 51. Ibid.

37. Timothy McNulty, “Rendell Urges Tripling of 52. Ibid. Excise Tax on Beer,” Pittsburgh Post-Gazette, March 26, 2003, p. A-5. 53. Rehr.

38. Sean Whaley and Jane Ann Morri, “Guinn 54. Quoted in Steven Milloy, “Prohibitionists Write Signs Record Tax Increase,” Las Vegas Review- Federal Alcohol Report,” FoxNews.com, September Journal, July 23, 2003, p. 1A. 26, 2003, www.foxnews.com/story/0,2933,98339, 00.html. 39. Center for Science in the Public Interest, Alcohol Policy Project, “States That Increased 55. T. S. Dee, “State Alcohol Policies, Teen Drink Taxes: 2002–2003 Map,” www.cspinet.org/booze/ ing and Traffic Accidents,” Journal of Public taxguide/TaxMap.htm (accessed September 15, Economics 72, no. 2 (1999): 289–315. 2003). 56. Patrick Fleenor, “Cigarette Taxes, Black Markets, 40. Ibid. and Crime: Lessons from New York’s 50-Year Losing Battle,” Cato Institute Policy Analysis no. 468, 41. Center for Science in the Public Interest, Alcohol February 6, 2003. Policy Project, “State Tax Information: Proposed Increases in State and Local Taxes and Fees,” 57. Rehr. www.cspinet.org/booze/taxguide/TaxStateUpdate. htm (accessed September 15, 2003). 58. “Index Tobacco and Alcohol Rates for Inflation,” in Congressional Budget Office, 2001 42. Columbia University, Center on Addiction and Budget Options, February 2001, www.cbo.gov/bo20 Substance Abuse, “Teen Tipplers: America’s 01/bo2001_showhit1.cfm?index=REV-49. Underage Drinking Epidemic,” February 26, 2002. 59. Bonnie and O’Connell, p. 101. 43. Tamar Lewin, “Teenage Drinking a Problem, But Not in the Way Study Found,” New York 60. “Booze and Advertising,” editorial, Christian Times, February 27, 2002, p. A19. Science Monitor, September 12, 2003, www.csmon itor.com/2003/0912/p10s01-comv.html. 44. Susan Foster, “Alcohol Consumption and Expenditures for Underage Drinking and Adult 61. U.S. Federal Trade Commission, “Alcohol Excessive Drinking,” Journal of the American Medical Marketing and Advertising: A Report to Congress,” Association 289 (2003): 989–95. September 2003, www.ftc.gov/opa/2003/09/alco hol.htm. 45. Donald G. McNeil Jr., “Liquor Industry and Scientists at Odds over Alcohol Study,” New York 62. “Alcohol Industry Changes Ad Guidelines and Times, February 26, 2003, p. A16. Receives Positive Report on Self-Regulation from FTC,” ADLAW Online, September 22, 2003, www. 46. Columbia University, Center on Addiction and adlawbyrequest.com/regulators/alcohol092203.s Substance Abuse, “Rethinking Rites of Passage: html. Substance Abuse on America’s Campuses,” June 1, 1994. 63. 13th Alcohol Policy Conference, Preventing Alcohol Problems among Youth: Policy Approaches, 47. Doug Bandow, “Junk Science, Redux,” Copley sponsored by the Educational Development Center, News Service, March 13, 2002, www.townhall. “Advisor Notes,” www2.edc.org/alcoholpolicy13/ad com/columnists/dougbandow/printdb2002 vnotes-040401.htm. 0313.shtml. 64. Quoted in Wayne Friedman and Hillary Chura, 48. “The One Tax That Should Be Raised,” edito- “NBC Stiffens Liquor Stance,” Advertising Age,

23 March 4, 2002. Chicago,” Center for Science in the Public Interest, Alcohol Policies Project, www.cspinet.org/booze/ 65. Center for Alcohol Marketing to Youth, chicago.htm (accessed September 12, 2003). “Television: Alcohol’s Vast Adland,” December 18, 2002, http://camy.org/research/files/television12 80. Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 02.pdf. 1314 (4th Cir. 1995).

66. Office of Sen. Christopher Dodd, “DeWine, 81. Central Hudson Gas and Electric v. Public Service Dodd to Monitor Marketing of Alcohol to Youth,” Commission, 447 U.S. 557 (1980). press release, April 2, 2003, http://dodd.senate. gov/press/Releases/03/0402.htm. 82. Anheuser-Busch, Inc. v. Schmoke, 520 U.S. 1204 (1997). 67. William J. Bennett, John J. DiIulio Jr., and John P. Walters, Body Count: Moral Poverty . . . and How to 83. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 Win America’s War against Crime and Drugs (New (1996). York: Simon & Schuster, 1996), p. 75. 84. Ibid. at 518 (Thomas, J., concurring). 68. Ibid., p. 76 (emphasis added). 85. Eller Media Co. v. City of Cleveland, 161 F. Supp. 69. Quoted in Jacob Sullum, “Bottle Battle,” 2d 796 (N.D. Ohio 2001). Creators Syndicate, February 10, 1999, http://rea son.com/sullum/021099.shtml. 86. Quoted in Jason Brooks, “Toasting Tobacco,” Reason Online, November 1998, http://reason.com/ 70. Ben Lieberman, “The Power of Positive 9811/ci.jb.toasting.shtml. Drinking,” CEI Update, November 1, 1996, www.cei. org/gencon/005,01321.cfm. 87. U.S. Department of Transportation, National Highway Traffic Safety Administration, “Traffic 71. Center for Science in the Public Interest, Safety Facts 2000,” DOT HS 809 337. Alcohol Policies Project, “TTB’s New Guidelines Doom Health Claims for Labels and Advertising,” 88. Ibid. press release, March 3, 2003, www.cspinet.org/ booze/TTBHealthLabel.htm. 89. Matthew L. Wald, “Deaths Mounting Again in War on Drunk Driving,” New York Times, 72. University of Michigan, Institute for Social October 23, 2002, p. G22. Research, Survey Research Center, “Monitoring the Future,” http://monitoringthefuture.org. 90. U.S. Department of Transportation, National Highway Traffic Safety Administration, “Traffic 73. Opinion Research Corporation and DYG, Safety Facts 2001,” DOT HS 809 483. Inc., surveys for the American Beverage Institute, 1995 (updated 1998). 91. Ibid.

74. “Youth Access to Alcohol Survey: Summary 92. Quoted in “Deaths Tied to Drunken Drivers Report,” prepared for Robert Wood Johnson Rise,” Associated Press, September 24, 2001. Foundation by University of Minnesota, Alcohol Epidemiology Program, December 2002. 93. Quoted in Matthew L. Wald, “A Fading Drumbeat against Drunken Driving,” New York 75. “Alcohol Advertising Restrictions,” University Times, December 15, 1996. of Minnesota, Alcohol Epidemiology Program, www.epi.umn.edu/alcohol/policy/adrstrct.html. 94. U.S. Department of Transportation, National Highway Traffic Safety Administration, 76. Ibid. Legislative Tracking Database, www.nhtsa.dot. gov/ncsl/Index.cfm. 77. “Facts for Action: Alcohol Billboards,” Scenic America Online, www.scenic.org/fact11.htm (ac- 95. Ibid. cessed September 13, 2003). 96. U.S. Department of Transportation, National 78. Jon Marshall, “Windy City’s Battle of the Highway Traffic Safety Administration, “Fatality Billboards,” Christian Science Monitor, March 20, 1998, Analysis Reporting System,” www-nrd.nhtsa.dot. http://search.csmonitor.com/durable/1998/03/20/ gov/departments/nrd-30/ncsa/fars.html. us/us.1.html. 97. Ralph Vartabedian, “A Spirited Debate over DUI 79. “Action Alert: Alcohol Billboards Banned in Laws,” Los Angeles Times, December 30, 2002, p. A1.

24 98. Ibid. 112. “The .08 Debate: What’s the Harm?” American Beverage Institute, 1999. 99. U.S. Department of Transportation, National Highway Traffic Safety Administration, “Traffic 113. U.S. Department of Transportation, National Safety Facts 2002,” DOT HS 809 607. Highway Traffic Safety Administration, “Alcohol Traffic Safety Facts: Fatalities by the Highest BAC 100. Vartabedian. in the Crash by State,” FARS data, 1996.

101. NHTSA also provided grants to the Virginia 114. U.S. Department of Transportation, Department of Motor Vehicles and the Maryland National Highway Traffic Safety Administration, Highway Safety Office. Those departments, in “1996 Drivers of Vehicles in Transport with turn, provided grants to the Washington Known Alcohol-Test Results,” FARS data, online Regional Alcohol Program, which sponsored the database and CD-ROM, 1996. ads, www.wrap.org/checkpoint_press.html. 115. Ibid. 102. U.S. Department of Transportation, “U.S. Transportation Secretary Mineta Unveils $11 116. Delmas Johnson and James Fell, “The Million Campaign to Reduce Drinking and Impact of Lowering the Illegal BAC Limit to .08 in Driving,” press release, June 19, 2003, www. Five States in the U.S.,” National Highway Traffic madd.org/news/0,1056,6807,00.html. See also Safety Administration, October 1995. National Highway Traffic Safety Administration, “Historic Impaired Driving Crackdown Is 117. Hans Laurel, “Effects of Lower BAC Limits in Launched; NHTSA Releases State-by-State Report,” Sweden,” Swedish National Road Administration, press release, December 18, 2002, www.madd.org/ paper presented at the Annual Transportation news/0,1056,5665,00.html. Research Board Conference, Session 390, Sheraton Washington Hotel, Wednesday, January 14, 1998, 103. Ibid. reported in American Beverage Institute, “The .08 Debate: What’s the Harm?” 104. U.S. Department of Transportation, “You Drink & Drive. You Lose: A Guide for Building a 118. “.08 BAC: The Facts,” MADD website, Comprehensive Impaired Driving Program,” www.madd.org/stats/0,1056,4588,00.html. DOT HS 808 896, 2002. 119. “Statement by the President,” Office of the 105. “States Sound Strangely Similar,” American Press Secretary, the White House, September 19, Beverage Institute Online, April 12, 2002, 2000, www.dot.gov/affairs/nhtsa4000.htm. www.abionline.org/news_article.cfm?ID=3. 120. “Ralph Hingson,” ActivistCash.com, www.con- 106. “Just Imagine,” American Beverage Institute sumerfreedom.com/activistcash/bio_detail.cfm? Online, October 23, 2003, www.abionline.org/news BIO_ID=1383. _article.cfm?ID=87. 121. “Highway Safety: Effectiveness of State .08 107. Making Appropriations for the Department Blood Alcohol Laws,” General Accounting Office of Transportation and Related Agencies for the Report to Congressional Committees, GAO/RC Fiscal Year Ending September 30, 2001, and for ED-99-179, June 1999, p. 17. Related Purposes, Pub. L. No. 106-346 (2002). 122. Ibid., p. 25. 108. Mothers Against Drunk Driving (MADD), Statistics and Resources, “Alcohol Related Laws: 123. “MADD Continues to Deceive,” National Full Reports by Law,” http://www3.madd.org/ Motorists Association News 3, no. 1, www.motorists. laws/fulllaw.cfm (accessed September 27, 2003). org/issues/dwi/more_deception.html.

109. Quoted in Vartabedian. 124. Vartabedian.

110. Quoted in ibid. 125. Ibid.

111. California Department of Motor Vehicles, 126. National Highway Traffic Safety Administra- Division of Program and Policy Administration, tion, “Budget in Brief: FY 2003,” 2003, www.nhtsa. Research and Development Section, “The dot.gov/nhtsa/whatis/bb/2003/. General Deterrent Impact of California’s .08 per- cent Blood Alcohol Concentration Limit and 127. Ibid. Administrative per se License Suspension Laws,” September 1995. 128. Vartabedian.

25 129. Donald A. Redelmeier and Robert J. Tibshriani, Institute, July 29, 2003. “Association between Cellular-Telephone Calls and Motor Vehicle Collisions,” New England Journal of 145. Ibid. Medicine 336, no. 7 (February 1997). 146. Ibid. 130. P. C Burns et al., “How Dangerous Is Driving with a Mobile Phone? Benchmarking the 147. “President of MADD Says, ‘You Drink & Impairment to Alcohol,” Transport Research Drive. You Lose’ Campaign Hits the Mark: Drunk Laboratory Report, 2002, p. 547. Drivers,” MADD, press release, June 19, 2003, www. madd.org/news/0,1056,6810,00.html. 131. Jane C. Stutts et al., “The Role of Driver Distraction in Traffic Crashes,” American Automobile 148. MADD, “Alcohol Related Laws.” Association Foundation for Traffic Safety, May 2001. 149. U.S. Department of Transportation, “You 132. “A .05 BAC Review—‘Overdue! It’s Time,’” Drink & Drive. You Lose.” MADD Canada, press release, January 24, 2003, www.madd.ca/news/pr/p030124.htm. 150. U.S. Department of Transportation, “Saturation Patrols & Sobriety Checkpoints Guide,” 133. Quoted in Jim Hauser, “MADDness in the October 2002, p. 12, www.nhtsa.dot.gov/people/ Methodology,” GOPUSA.com, November 25, injury/alcohol/saturation_patrols/satpats2002.pdf. 2002, www.gopusa.com/mississippi/commen tary/maddness_methodologyp.shtml. 151. See Nadine Strossen, “Michigan Department of State Police v. Sitz: A Roadblock to Meaningful 134. “Law to Target Drug Using Workers,” Enforcement of Constitutional Rights,” Hastings Associated Press, September 29, 1998. Law Journal 42 (1991): 285.

135. “Ohio Now Has DWS: Driving While Stinky,” 152. Michigan Dept. of State Police v. Sitz, 496 U.S. American Beverage Institute Online, July 30, 2003, 444 (1990). www.abionline.org/news_article.cfm?ID= 79. 153. Ibid. at 455. 136. “The Latest from the States,” American Beverage Institute Online, February 10, 2003, 154. Ibid. at 451. www.abionline.org/news_article.cfm?ID=44. 155. Ibid. at 460 (Stevens, J., dissenting). 137. “Get Tough on DUI in Utah,” editorial, Deseret News, October 23, 2001, p. A12. 156. Ibid. at 464–65.

138. Center for Consumer Freedom, “Quotes from 157. Ibid. at 462. the Anti-Alcohol Movement,” October 1, 2000, www.consumerfreedom.com/article_detail.cfm?A 158. Ibid. at 475. RTICLE_ID=3. 159. Sitz v. Michigan Dept. of State Police, 506 N.W. 139. Quoted in ibid. 2d 209 (1993).

140. U.S. Department of Transportation, National 160. State v. Henderson, 756 P.2d 1057 (Idaho 1988); Highway Traffic Safety Administration, “Driver Ascher v. Commr. of Public Safety, 519 N.W. 2d. 183 Impairment at Various BACs,” DOT HS 809 075, (Minn. 1994); and Pimental v. Dept. of Transportation, August 2000. 561 A. 2d. 1348 (R.I. 1989).

141. Ibid. 161. Indianapolis v. Edmond, 531 U.S. 32 (2000).

142. Erika Chamberlain and Robert Solomon, 162. South Dakota v. Neville, 459 U.S. 553 (1983). “The Case for a .05 percent Criminal Code BAC Limit,” MADD London, November 2001, www. 163. Blanton v. City of North Las Vegas, 489 U.S. 538 maddlondon.com/point5limit.PDF. (1989). But see Timothy Lynch, “Rethinking the Petty Offense Doctrine,” Kansas Journal of Law and 143. Brendan Smith, “Woman Sues after Arrest Public Policy 4 (1994): 1. Despite Passing DUI test,” Daytona Beach News- Journal, August 1997. 164. See Wisconsin v. Krajewski, 648 N.W.2d 385 (2002). 144. John Doyle, “Checkpoints Will Intimidate Many Modern Drinkers,” American Beverage 165. See J. M. Kalil, “Police Officer Violated

26 Policy,” Las Vegas Review-Journal, July 4, 2003. 186. “Rated R for Alcoholic Content,” American Beverage Institute Online, May 10, 2002, www.abion 166. MADD, “Alcohol Related Laws.” line.org/news_article.cfm?ID=17.

167. Ibid. 187. Mindus, pp. 9–13.

168. Ibid. 188. Thurston Hatcher, “Senator Wants Two- Drink Limit on Planes,” CNN.com, July 27, 2001, 169. Carol Morello, “Bar Raids Irritate Owners, www.cnn.com/2001/TRAVEL/NEWS/07/25/infli Drinkers,” Washington Post, January 8, 2003, p. B1. ght.drinking/.

170. Quoted in ibid. 189. Robert Wood Johnson Foundation, “Grant Resources Database,” www.rwjf.org/search/search. 171. Quoted in ibid. jsp?searchchoice=3.

172. Mike Johnson and Linda Spice, “Bucher Takes 190. Mindus. David J. Morse, vice president for Hard Line on Teen Parties,” Milwaukee Journal communications for the Robert Wood Johnson Sentinel, October 7, 1999, p. 1. Foundation, has written: “We have no interest in returning to the prohibition days of the 173. Pam Rogers, “Prosecutors as Partners,” Eighteenth Amendment. Our work is focused on MADDvocate, Summer, 2001, www.madd.org/ reducing underage drinking and the many health news/0,1056,3688,00.html. and social problems cause by the illegal use and abuse of alcohol by youth.” David J. Morse, “What 174. Corinne Reynolds, “BPD Still Waiting for Have They Been Drinking?” letter to the editor, Letter; Students Want Answers,” Indiana Daily Washington Times, October 10, 2003, p. A20. Student, September 9, 2002. 191. Mindus, pp. 1, 21–22. 175. Quoted in ibid. 192. Ibid., p. 12. 176. MADD, “Alcohol Related Laws.” 193. Ibid. 177. Ibid. 194. Ibid., p. 14. 178. Dan Mindus, “Beyond the Neo-Prohibition Campaign: The Robert Wood Johnson Foun- 195. Ibid. dation,” Center for Consumer Freedom, April 10, 2003, p. 8, www.consumerfreedom.com/report_ 196. “States and Cities Can Take Immediate Steps rwjf.cfm. to Lower Alcohol-Related Traffic Deaths,” Robert Wood Johnson Foundation, press release, January 179. Ibid., p. 14. 14, 2002, www.rwjf.org/news/releaseDetail.jsp?id- 1010187104849&contentGroup=rwjfrelease. 180. Bennett, DiIulio, and Walters, p. 76. 197. Mindus, p. 22. 181. Ibid., pp. 74–75. 198. “Youth Access to Alcohol Survey.” 182. Ibid., p. 75. 199. Mindus, p. 8. 183. “Liquor Board Allows Tacoma to Ban Sales of Fortified Beer, Wine,” Associated Press, 200. Ibid., pp. 14–15. December 14, 2001. See also Craig Timberg, “Neighbors Fight Single-Beer Sales; H Street 201. Ibid., p. 22. Merchants Decry Effort as an Attack on Northeast Businesses, Poor,” Washington Post, 202. “CSPI on JAMA Article on Underage & August 31, 2003, p. C1. Excessive Drinking,” Center for Science in the Public Interest, press release, February 25, 2003, 184. “Neighborhood Watch,” American Beverage www.cspinet.org/new/200302251.html. Institute Online, November 26, 2002, www.abion line.org/news_article.cfm?ID=32. 203. “Jim Gogek,” SignOnSanDiego.com, www. signonsandiego.com/news/op-ed/gogek.html. 185. “Prohibition on the Ballot,” American Beverage Institute Online, November 15, 2002, www.abion 204. Jim Gogek, “Taxing the Binge,” New York line.org/news_article.cfm?id=26. Times, March 13, 2003, p. A27.

27 205. “Key Learnings and Recommendations,” Century, Pub. L. No. 105-178, Title VII, Subtitle A, Conference on Alcohol Policy XII, Alcohol and Section 7104 (a), June 9, 1998. Crime: Research and Practice for Crime Prevention, sponsored by National Crime Prevention Council, 214. Charles V. Peña, in “The Anti–Drunk Driving June 11–14, 2000, Washington. Campaign: A Covert War against Drinking,” un- published white paper, www.motorists.org/issues 206. Ibid. /dwi/pena.html.

207. Center for Consumer Freedom, “Anti-Alcohol 215. Florida Senate Bill 1456 and Florida House Foundation Is a Duck,” September 9, 2003, www. Bill 189, www.flsenate.gov/session/index.cfm? consumerfreedom.com/headline_detail.cfm?HEA BI_Mode=ViewBillInfo&Mode=Bills&SubMenu= DLINE_ID=2111. 1&Year=2003&billnum=1456.

208. Mindus, p. 2. 216. MADD, Tax Form #990, 2001, www.madd. org/docs/form990_2001.pdf. 209. Jennifer Yachnin, “Police Setting Up DUI Checkpoint Saturday,” Roll Call, October 10, 217. Peña. 2003. 218. Quoted in Sam Bresnahan, “MADD Struggles 210. “President of MADD Says, ‘You Drink & to Remain Relevant,” Washington Times, August 6, Drive. You Lose’ Campaign Hits the Mark: Drunk 2002, p. B1. Drivers.” 219. See Robert Levy, “Tobacco and the Rule of 211. “It’s Time to Get MADD All Over Again: Law,” in The Cato Handbook for Congress, the 106th Resuscitating the Nation’s Efforts to Prevent Congress (Washington: Cato Institute, January Impaired Driving, A Report from the MADD 2000), chap. 22. Impaired Driving Summit,” MADD, June 2002, p. 19, www.madd.org/docs/policy_summit_book 220. See Timothy Lynch, ed., After Prohibition: An let.pdf. Adult Approach to Drug Policies in the 21st Century (Washington: Cato Institute, 2000), pp. 41–60. 212. “Bio Info: James Fell,” ActivistCash.com, www. consumerfreedom.com/activistcash/bio_detail.cf 221. See “City and County Officials Discuss Curbs m?BIO_ID=1959. on Smoking,” New York Times, August 29, 2002. Note also Marc Kaufman, “Surgeon General Favors 213. Transportation Equity Act of the 21st Tobacco Ban,” Washington Post, June 4, 2003, p. A1.

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