dissenting.
I am unable to join the majority in upholding a judgment of the Superior Court enjoining a newspaper from publishing liquor advertisements of a Massachusetts retailer of alcoholic beverages whose place of business is located in Millville, Massachusetts, and not within the State of Rhode Island.
The majority cites in a peripheral comment Queensgate Investment Co. v. Liquor Control Commission, 69 Ohio St.2d 361, 433 N.E.2d 138, appeal dismissed, 459 U.S. 807, 103 S.Ct. 31, 74 L.Ed.2d 45 (1982). It could be argued that the dismissal of the appeal by the Supreme Court of the United States for lack of a substantial federal question forecloses further inquiry because of the similarity of issues between that case and the case at bar. Although the majority does not analyze Queensgate to any extent, I feel it necessary to point out in some detail that it is not controlling in the instant case. At the threshold it is appropriate to point out that there is a significant difference between Queensgate and the instant case. In Queensgate the Ohio Liquor Control Commission brought action against a liquor licensee who sought to declare unconstitutional as violative of the First Amendment an Ohio statute prohibiting liquor-price advertising in that state. It is notable that the issue in *339Queensgate was the right of a licensed liquor dealer to advertise by means of its own newsletter the prices of alcoholic drinks to be sold to customers within that state. The issue in the case at bar is the right of a newspaper to publish an advertisement from an out-of-state liquor dealer which includes the prices of alcoholic beverages to be sold within the Commonwealth of Massachusetts. I consider these issues to be very different indeed.
The Supreme Court has sent a number of messages to state courts and lower federal tribunals concerning the precedential authority of cases dismissed for want of a substantial federal question. In Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), the Court stated that such a dismissal constitutes a decision on the merits. We recognized and applied this doctrine in Loiselle v. City of East Providence, 116 R.I. 585, 588, 359 A.2d 345, 347 (1976). However, the Supreme Court has also noted that blind application of its rule in Hicks is to be avoided. In Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977), the Court held, per cu-riam, that such summary dispositions extended only to “the precise issues presented and necessarily decided by those actions.” Id. at 176, 97 S.Ct. at 2240, 53 L.Ed.2d at 205. In his concurring opinion in Mandel, Justice Brennan extended the analysis even further by noting that,
“the federal and state courts should give ‘appropriate, but not necessarily conclusive, weight to our summary dispositions,’ * * *. [Moreover, a] detailed analysis * * * is essential before a decision can be made whether it is appropriate to accord a particular summary disposition precedential effect. After today, judges of the state and federal systems are on notice that, before deciding a case on the authority of a summary disposition by this Court in another case, they must (a) examine the jurisdictional statement in the earlier case to be certain that the constitutional questions presented were the same and, if they were, (b) determine that the judgment in fact rests upon decision of those questions and not even arguably upon some alternative nonconstitutional ground. The judgment should not be interpreted as deciding the constitutional questions unless no other construction of the disposition is plausible. In other words, after today, ‘appropriate, but not necessarily conclusive, weight’ is to be given this Court’s summary dispositions.” Mandel, 432 U.S. at 179-80, 97 S.Ct. at 2242, 53 L.Ed.2d at 207 (quoting Colorado Springs Amusements, Ltd. v. Rizzo, 428 U.S. 913, 923, 96 S.Ct. 3228, 3233, 49 L.Ed.2d 1222, 1226 (1976)).
In subsequent decisions since Mandel, the Court has continued to urge caution in order to avoid too broad an application of the rule announced in Hicks, supra. See Anderson v. Celebrezze, 460 U.S. 780, 784 n. 5, 103 S.Ct. 1564, 1567 n. 5, 75 L.Ed.2d 547, 555 n. 5 (1983); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 499-500, 101 S.Ct. 2882, 2888-89, 69 L.Ed.2d 800, 810 (1981); see also Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 476 n. 20, 99 S.Ct. 740, 749 n. 20, 58 L.Ed.2d 740, 753 n. 20, reh. denied, 440 U.S. 940, 99 S.Ct. 1290, 59 L.Ed.2d 500 (1979). In Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 182-83, 99 S.Ct. 983, 989, 59 L.Ed.2d 230, 240 (1979), the Supreme Court noted that “[a] summary disposition affirms only the judgment of the court below * * * and no more may be read into our action than was essential to sustain that judgment. * * * Questions which ‘merely lurk in the record,’ * * * are not resolved, and no resolution of them may be inferred.”
An examination of the stipulated facts in the case at bar, as opposed to the facts set forth in 'Queensgate, will clearly indicate that the issues decided in the Ohio case are significantly different from the issues presented in the instant case. One of the salient differences is that the party defendant in this case is a newspaper as opposed to a licensed liquor dealer. Another signifi*340cant difference is that the price advertising in the case at bar involves a liquor establishment located in the Commonwealth of Massachusetts wherein such price advertising is not prohibited by statute.8 The advertising in Queensgate related to an Ohio licensee who distributed its message by newsletter. The case at bar differs in principle from that of Queensgate, supra. In Queensgate the party who asserted a First Amendment right was a liquor licensee as opposed to the publisher or editor of a newspaper. The Supreme Court noted in Bigelow v. Virginia, 421 U.S. 809, 828, 95 S.Ct. 2222, 2236, 44 L.Ed.2d 600, 615 (1975), that application of a statute prohibiting publication of commercial speech against a “publisher and editor of a newspaper, not against the advertiser or a referral agency or a practitioner * * * incurred more serious First Amendment overtones” than would otherwise be the case. In short, the prohibition against the publication of advertising by a newspaper involves far more serious issues than the inhibition of publication by an advertiser, particularly a liquor licensee. It has earlier been observed by the Supreme Court that licensees may be restricted in accordance with the license that gives rise to their business activity and which they freely accepted as a condition of doing business. Thus, a Fourth Amendment right may be restricted or limited in regard to a licensee of a pervasively regulated business. See Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (mine operator); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (licensee of firearm dealership).
Furthermore, it is the teaching of Bige-low that,
“[a] State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State. It may seek to disseminate information so as to enable its citizens to make better informed decisions when they leave. But it may not, under the guise of exercising internal police powers, bar a citizen of another State from disseminating information about an activity that is legal in that State.” Bigelow, 421 U.S. at 824-25, 95 S.Ct. at 2234, 44 L.Ed.2d at 613.
In the case at bar, the Rhode Island judiciary purports to enjoin a newspaper from disseminating advertising from Massachusetts liquor dealers (a practice valid in that state) under the guise of promoting temperance among its own citizens. The command of Bigelow would inhibit such an action and would render invalid such an application of G.L. 1956 (1976 Reenactment) § 3-8-8.1.
As a further reason for my dissent, I am of the opinion that the majority has misconceived the full thrust of the holding in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). In that case, as the majority also points out, a New York Public Service Commission regulation completely banned promotional advertising by an electric utility in order to dampen, on conservation grounds, the enhanced use of electricity. This regulation was declared to be in violation of the First Amendment protection granted to commercial speech because of overbreadth and insufficient direct relationship to the conservation of energy. Justice Powell, speaking for the majority, developed a four-part test in order to determine the validity of regulations inhibiting commercial speech or publication. This four-part test was as follows:
1. Does the speech concern lawful activity and is it not misleading in nature?
2. Is the governmental interest substantial?
3. If the foregoing questions are answered affirmatively, does the regulation directly advance the governmental interest asserted?
*3414. Is the regulation more extensive than is necessary to serve that interest?
Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351, 65 L.Ed.2d at 351. I agree completely with the majority that the crucial question in this case concerns the third inquiry. Does the regulation directly advance the governmental interest asserted?
In my opinion it does not accomplish such a result. In the case at bar, it is almost obvious beyond question that not only is the attempted control of purchasing decisions made by Rhode Island residents in the State of Massachusetts beyond the power of this state to control, as pointed out in Bigelow, supra, but also it could scarcely be suggested that it has the desired effect of promoting the elusive concept of temperance. Even applying an intermediate level of judicial scrutiny to this state’s restriction upon advertising as applied in this case could scarcely support the requirement that the state interest is directly advanced. Under the Rhode Island statute, restrictions on price advertising are the only means by which the state allegedly supports its interest in promoting temperance. Rhode Island does not purport to prevent pervasive advertising via newspaper, radio, billboard, and other publication forms extolling the virtues of various brands of beer, wine, and “ardent spirits.” The suggestion of the pleasures to be derived from the consumption of such nec-tars proceeds uninhibited by any countervailing state interest in the promotion of temperance. At most, it might be argued that price advertising, even by Rhode Island dealers, affects the choice of the place where the consumer decides to purchase liquor and not the basic decision whether to purchase.
It should also be noted that in Central Hudson, Justice Blackmun in his concurring opinion made an exceedingly pertinent observation in respect to price information when he stated:
“I seriously doubt whether suppression of information concerning the availability and price of a legally offered product is ever a permissible way for the State to ‘dampen’ demand for or use of the product. Even though ‘commercial’ speech is involved, such a regulatory measure strikes at the heart of the First Amendment. This is because it is a covert attempt by the State to manipulate the choices of its citizens, not by persuasion or direct regulation, but by depriving the public of the information needed to make a free choice.” Central Hudson, 447 U.S. at 574-75, 100 S.Ct. at 2356, 65 L.Ed.2d at 356 (Blackmun, J., concurring).
I believe that this observation by Justice Blackmun points up quite eloquently the difference between this case and the case of Dunagin v. City of Oxford, Mississippi, 718 F.2d 738 (5th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 3553, 82 L.Ed.2d 855 (1984), in which the United States Court of Appeals for the Fifth Circuit found valid a Mississippi regulation that imposed a ban on liquor advertising save for limited on-premises identification of the place of business and its purpose. The crucial difference between the restrictions found in Dunagin and those contained in the Rhode Island statute is that when a virtually total prohibition of alcohol advertising is imposed, a much closer nexus must exist between such a prohibition and a state’s interest in promoting temperance.
The majority suggests that a statute is presumed to be constitutional and the burden of persuasion rests upon those who would challenge its validity.9 It is further *342true that in Boucher v. Sayeed, — R.I. —, 459 A.2d 87 (1983), we pointed out the distinction between the taking of judicial notice of adjudicative facts and that of legislative facts. Therein we declared that legislative facts are “the social, economic, political, and scientific facts that simply supply premises to guide judges in the process of their legal reasoning. In particular, judicial notice of such facts may occur when a judge decides upon the constitutionality of a statute.” Id. at —, 459 A.2d at 92.
I feel constrained to note, however, that legislative facts are generally applied as a matter of intuitive judgment even though it may be that there is an absence of specific statistical data to prove or disprove a given proposition. For example, in Boucher no statistical or other factual information was supplied to support the finding that the medical malpractice crisis had passed. Even reams of statistics, like beauty, depend upon the eye of the beholder. Other than the application of intuitive judgment, I do not believe that the effect upon temperance of price advertising is susceptible of “proof” in the ordinary sense of that term. In my judgment the enforced silence regarding price serves to dampen legitimate competition rather than the thirst of potential consumers.
For the foregoing reasons, I must respectfully dissent from the opinion of the majority. I would hold without equivocation that the application of the Rhode Island statute to the defendant Evening Call Publishing Company under the circumstances of this case is a violation of the First Amendment protection accorded commercial speech.
. See stipulation of fact, No. 13.
. Although this is a familiar principle in Rhode Island constitutional adjudication, language in some recent cases indicates that the United States Supreme Court may place the burden of establishing the need for restricting a First Amendment right in order to achieve a substantial governmental interest upon the proponents rather than the opponents of the legislation. See Bolder v. Youngs Drug Products Corp., 463 U.S. 60, 71 n. 20, 103 S.Ct. 2875, 2882 n. 20, 77 L.Ed.2d 469, 480 n. 20 (1983); Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 570, 100 S.Ct. 2343, 2353, 65 L.Ed.2d 341, 353 (1980); Linmark Asso*342ciates, Inc. v. Willingboro, 431 U.S. 85, 95, 97 S.Ct. 1614, 1619, 52 L.Ed.2d 155, 163 (1977).