Mix-and-match majority finds tobacco-ad rules too restrictive
By Tony Mauro
Special to freedomforum.org
When Supreme Court Justice Sandra Day O'Connor announced the court's decision on tobacco advertising and the First Amendment yesterday, she warned spectators in the court chamber that they would need a road map to figure out which justices agreed to which parts of the ruling.
But she did assure everyone that "there is a court for all parts of it," meaning that at least a majority of the nine justices signed on to every section of the 42-page decision in Lorillard Tobacco Co. v. Reilly. Four other justices wrote separately to indicate their disagreements with some parts of the decision.
At the end of the road that O'Connor led the court down, the court's mix-and-match majority struck down a range of Massachusetts restrictions on tobacco advertising, handing a substantial victory to the tobacco industry and to advertisers in general in their continuing battle for constitutional respect under the First Amendment. It was the latest in a string of decisions that have protected the free-speech rights of advertisers.
But the court stopped short of scrapping its traditional test for assessing the constitutionality of restrictions on commercial speech. Commercial-speech advocates had hoped the court would use the Lorillard case as a vehicle to abandon the so-called Central Hudson test, which a lower court had used to uphold the Massachusetts regulations.
"It's an excellent result," said P. Cameron DeVore, who wrote a brief in the case on behalf of advertisers. "The court clearly continued its well-established trend of supporting the First Amendment for even the most difficult products in society."
DeVore acknowledged that the court still embraces the Central Hudson test, which looks at whether the government's interest in restricting the advertising is substantial, and whether the regulations at issue advance the government interest and are no more extensive than necessary. But he was heartened that three justices Clarence Thomas, Anthony Kennedy and Antonin Scalia wrote in support of a strict-scrutiny standard that would likely strike down more advertising regulations than the Central Hudson test.
The court said the state of Massachusetts had met the "substantial government interest" part of the test because of the demonstrated harm to children posed by smoking. But the state failed the extensiveness test in the court's view, because its array of regulations swept too broadly. The regulations, enacted in 1998, including a sweeping ban on billboards and even store signs visible within 1,000 feet of schools and playgrounds. The court concluded that, taken together with other zoning regulations, the ban would preclude tobacco advertising in roughly 90 percent of Boston, Worcester and Springfield.
"The state's interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity," O'Connor wrote. "We must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products… . As the State protects children from tobacco advertisements, tobacco manufacturers and retailers and their adult consumers still have a protected interest in communication."
The ruling could jeopardize tobacco advertising restrictions enacted by many states and local jurisdictions in recent years, but probably will not disturb the 1998 agreement between the tobacco industry and 46 states, which included substantial limits on advertising.
Yesterday's decision could embolden the industry to mount a challenge to the congressional ban on television and radio advertising for tobacco, though there was no indication from tobacco companies that a challenge is being considered.
The tobacco industry also won on a non-speech issue. The court found that the state regulations, as they pertained to cigarette sales, were pre-empted by the 1969 federal law that required health warnings to be placed on cigarette packages The law also prohibited states from imposing regulations on cigarette advertising based on "smoking and health."
In acknowledging defeat in the case on yesterday, Massachusetts Attorney General Thomas Reilly called on Congress to change the law that pre-empts state action. The Associated Press reported after yesterday's ruling that Rep. Martin Meehan, D-Mass., said he would introduce legislation to overturn the 1969 federal law.
The court's conclusion on pre-emption might have ended the case altogether, except that the federal law cited by the justices affects only cigarette advertising. Manufacturers of cigars and smokeless tobacco mounted a separate First Amendment challenge to the Massachusetts restrictions, so the court had to deal with the issue and struck the regulations down as they pertain to those products as well.
The only regulations that survived yesterday related to the actual sale of tobacco products. To discourage easy access to tobacco by children, the state barred all self-serve displays, requiring that all tobacco products be placed out of reach to all customers and accessible only to salespeople. This regulation, the court concluded, is "unrelated to expression" and was left standing.
Thomas in his concurrence in Lorillard continued in his role as the most unabashed champion of commercial-speech rights. Upholding the Massachusetts regulations, he said, could lead to restrictions on the advertising of alcohol or fatty foods which also affect children.
"No legislature has ever sought to restrict speech about an activity it regarded as harmless and inoffensive," Thomas wrote.
"Calls for limits on expression always are made when the specter of some threatened harm is looming. The identity of the harm may vary. People will be inspired by totalitarian dogmas and subvert the Republic. They will be inflamed by racial demagoguery and embrace hatred and bigotry. Or they will be enticed by cigarette advertisements and choose to smoke, risking disease.
"It is therefore no answer for the State to say that the makers of cigarettes are doing harm: perhaps they are. But in that respect they are no different from the purveyors of other harmful products, or the advocates of harmful ideas. When the State seeks to silence them, they are all entitled to the protection of the First Amendment."
Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.
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