Changes to the Illinois Liquor Control Act of 1934 will take effect on Jan. 1, changes aimed at curbing underage drinking by holding parents and guardians legally responsible for underage drinking that occurs on property under their control.
“By focusing our educational efforts on parents, we have the greatest chance of being successful at changing behavior,” writes the Illinois Liquor Control Commission in its Spring 2012 newsletter about House Bill 1554, which is now Public Act 097-1049. “Parents must be aware of the facts if we expect them to make responsible choices. The only way for them to know the facts is to engage them in the process and teach them the consequences of underage drinking.”
The new changes would make this law read as follows:
It is unlawful for any parent or guardian to knowingly permit his or her residence, or any other private property under his or her control, to be used by an invitee of the parent’s child or the guardian’s ward, if the invitee is under the age of 21, in a manner that constitutes a violation of this Section. A parent or guardian is deemed to have knowingly permitted his or her residence, or any other private property under his or her control, to be used in violation of this Section if he or she knowingly authorizes or permits consumption of alcoholic liquor by underage invitees.
The question is, What constitutes an “invitee”? Perhaps more to the point, When does a tweet or status update become an invitation under the amended law? See, the law as written is obviously designed to protect homeowners from kids who just barge in, uninvited. But if their son or daughter extends an invitation to underage people and those people drink, that’s a different situation under the law.
A scenario that might happen
Imagine this scenario at the end of December 2013: I receive a new bottle of wine from a friend for the holidays. My kid posts on Facebook and tweets, “Dad will be enjoying a bottle of wine he got from France tonight, my house, 8:00.”
Have any laws been broken? There’s a difference of opinion, at least between me and one blogger, about this. In saying that the new changes to the law will violate my kid’s First-Amendment rights in this scenario, the blogger cites a whole bunch of cases that have been decided in the Supreme Court of the United States, including one brought by the New York Times against the United States.
I, on the other hand, claim the First Amendment makes this a perfectly constitutional law, which needs to be fixed to protect certain “guardians” of students. Hmm. Let’s look at our arguments:
The case against the new changes to the law
Several universities say the law straps them with unfair liability because they own and control dormitories where underage drinking may occur at the invitation of student residents. The Chronicle of Higher Education, here (subscription only), wrote an article quoting several university officials who say directors of residence halls can’t possibly monitor all their residents, and status updates and tweets about parties are beyond their reasonable control.
There’s no language in the law that protects universities when one of their charges, a student, invites underage students to come over and drink alcoholic beverages. As the owner of the property, the university would be liable after the changes take effect. This may force universities to take steps, costing money, to avoid this liability. This money would not be spent for educational purposes but rather to protect the university from legal action when their students break the law. That level of liability is nearly unprecedented.
Some people oppose the law on free-speech grounds, specifically on the basis that it unlawfully restricts trade and advertising. Will we have to begin each Facebook post with a disclaimer? Try the following: “This post is intended solely for my friends who are of legal drinking age: #party on the ninth floor of #ISR >>>”
That might not do it, though. Since the poster knows some of his friends are underage, it could be argued that he has knowingly invited underage students to a party where he knows alcohol is being served. If one of those invitees then consumes alcohol, the university would ostensibly be liable under the current changes to the law.
The law also provides, however, that there are certain actions that might be taken by the university, its residence director, or some other person acting in an official capacity: they could call the police as soon as they become aware or suspect that underage students are consuming alcohol on property controlled by the university. This would, under the changed law, insulate the university from liability for any underage drinking that occurred at the party. Policies may need to be implemented that could further shield the university in such cases.
Another argument against the changes, based solely on free speech and advanced by the above-mentioned blogger in the Quincy Journal, is on shaky ground. It goes something like this: If I want to advertise a party on my floor, I can do so on my Facebook timeline, because the government—here, the Illinois legislature—cannot deny me the right to freedom of speech, even if my words may be offensive to some people in my potential audience.
As stated, that would probably hold up in court, except that there are too many unanswered questions about the words themselves. But the law doesn’t concern itself with the invitation, just the drinking by invited guests. I can invite all the underage people I want, through Facebook or otherwise, but if they drink, now my invitation gave them a different status. The invitation itself, though, isn’t against the new law; the drinking is (and always was), and now my invitation record on Facebook negates my defense that underage drinkers just “barged in uninvited.”
Also, as you should know—if you’re past eighth grade—you have the right to say or write anything you want, except you can’t yell “Fire” in a crowded theater, right? Unless there really is a fire. How does that apply? It means you can’t knowingly cause people to do something that will result in people being harmed unless there’s a compelling reason to do so.
Does underage drinking cause harm? Well, sure. And because of that, the Illinois Liquor Control Commission thinks it can restrict advertising that might subject American citizens to harm. The changes to the law, though, were based on a specific part of the law that created the ILCC known as the “of value” clause. The ILCC can recommend laws that enforce the illegality of sellers, distributors, and manufacturers of alcoholic beverages giving anything “of value” to their customers who purchase alcoholic products.
The ILCC says that sellers are providing you with something of value when you buy alcohol. And here’s the kicker: they say that thing of value is your Facebook status update, which acts like advertising to your friends, some of whom are probably underage.
By advertising for your party, you’re receiving something of value in exchange for your purchase of alcoholic beverages. Advertising on Facebook has value, and it’s against the law for a business or company that sells you alcohol to give you anything of value in return for your purchase. For example, a restaurant can’t give you a free appetizer only if you buy an alcoholic beverage. The restaurant can give you all the free appetizers they want, but if they do something like restricting free appetizers to people who buy an Orange Crush at the bar, that’s illegal.
In the case of Facebook, the ILCC considers the ability to invite people to your party to have a certain value to you. This invitation to your Facebook friends and the promotion of your awesome social skills is only possible because you purchased and are consuming alcohol at the party. So, the advertising is like the appetizer: The liquor store where you bought the alcohol is giving you something of value—the social media advertising of your awesomeness—in exchange for your purchase of alcoholic beverages. If you are receiving anything of value from the seller just because you purchased alcohol, that would be illegal, and if your words are inviting people to your place, owned by your parents or university, this is bad news all around.
This part requires further consideration. When you post on Facebook, yes, you’re promoting your social skill and connectedness, which has value to you, but it could be argued that you received that thing of value not from the store where you purchased the alcohol but rather from Facebook. Since Facebook was not strictly involved with the transaction between you and the liquor store, your status update could be considered, from a legal perspective, separate and apart from the purchase of alcohol. If it is a separate transaction and did not depend on your purchase of alcohol, this renders the First-Amendment argument moot.
But if that’s the case, since the ILCC based these changes on the “of value” clause in Illinois law, the law itself may be found illegal on the grounds that the ILCC exceeded its lawful authority in creating the new changes.
The argument for the new changes
Let’s say you legally buy the alcohol (because you’re 48 years old), throw a party in your house, and your kid posts on Facebook that there’s a party at your house for all his underage friends to see. Are you, as your kid’s legal guardian, guilty of a Class A misdemeanor yet? Not if there’s no underage consumption of alcohol and no person under 21 is ever in possession of alcohol in your house during the party. The law doesn’t make it illegal for underage individuals to be present on the property where alcohol is being served.
Therefore, technically speaking, the changes don’t prevent you or your children from writing or speaking anything. Now, it’s possible that a court, in reviewing the law, could conclude that causing words to pass in front of underage students on their Facebook newsfeed is the same thing as “permitting” or “allowing” them to drink, but I don’t think that’s the case. The law is fairly specific that an underage person has to be “in possession” of alcoholic beverages on the property controlled by the parent or guardian before any liability falls on the parent or guardian.
The First Amendment prevents the government from making any laws that restrict free speech unless the government has a compelling interest in doing so. In other words, if a greater good is served, the government can restrict free speech.
For example, the restriction that cigarette commercials not be shown on television was enacted because children watch television and smoking by young people would cause harm to Americans. Or, consider the restriction that commercials for alcoholic beverages are not allowed to show the actual consumption of those beverages. The actors can put the glass up to their mouth, but they can’t take a drink. In addition to tobacco and alcohol, the government can also restrict advertising when it comes to the promotion of explosives or firearms.
So the argument for the new changes can be viewed as having two prongs: (a) The new law doesn’t restrict speech at all, since all speech that was permitted before the changes is permitted after the changes. And (b), if the law should be found to restrict speech by a court of competent authority, the government has a compelling interest to restrict this speech, much as it restricts tobacco, alcohol, and explosives advertising.