CA1: First Amendment rights of liquor store franchisors

Wine and Spirits Retailers v. State of Rhode Island, No. 05-1549, affirms the denial of a preliminary injunction against the state’s enforcement of two new statutes which: 1) prevents any franchisor or franchisee from holding a Class A retail liquor license; and 2) which prohibits any "chain store organization" from holding such a license, so that it explicitly encompasses package stores that engage in certain coordinated business activities.  See R.I. Gen. Laws §§ 3-5-11 and 3-5-11.1.  The This Department of Business Regulation had discretion to determine whether an entity fell into the "chain store" category.  After determining the standing issues, and reiterating the preliminary injunction standards (reviewed for abuse of discretion in the First), the court concludes that 1) it won’t reach the issue of whether provision of business advice from franchiser to franchisee for a fee is speech protected by the First Amendment, because the franchisors were not actually prevented from providing such advice and any burden on such speech is incidental; 2) there was no burden on freedom of expression or association by apparently restricting the use of a trade name by the franchisor because the “provision of advertising and licensing services is not speech that proposes a commercial transaction and therefore does not constitute commercial speech” and they don’t “fall into the broader category of expressive activity in which conduct itself can be said to convey a particularized message and, thus, be entitled to protection as symbolic speech.” ; 3) the right of freedom of assication was not burdened because, “***in the absence of anything uniquely expressive about the concerted commercial activity, no First Amendment exception to the enforcement of an otherwise valid antitrust law was warranted.”; and 4) there was no serious equal protection challenge because “legislation at issue is economic in nature. It neither utilizes suspect classifications nor trenches upon fundamental rights.”