Smoking Ads: Free Speech?
An attorney for six big tobacco companies argued before the Supreme Court Wednesday that a Massachusetts restriction on cigarette advertising near schools and playgrounds violates the constitutional right to free speech.
The nation's biggest tobacco companies agreed to a deal with states three years ago that, among other things, forbade cigarette billboards and severely restricted other large-scale tobacco advertising.
While the billboards disappeared, large, colorful tobacco ads in convenience stores, at bus stops and elsewhere remained.
In response, Massachusetts passed regulations that would ban outdoor advertising of all tobacco products within 1,000 feet of schools and playgrounds, including ads outside stores and those inside stores that can been seen from outside.
The tobacco companies cried foul, and the Supreme Court agreed to hear the case.
The case, one of the last two the high court will hear this term, poses an opportunity for the justices to strengthen or weaken their previous stance that commercial speech may be regulated but not banned.
Attorney Jeffrey Sutton told the justices that the 2-year-old regulation amounts to a ban on tobacco advertising in 90 percent of the three biggest urban areas in the state.
Lawyers for Massachusetts and for the U.S. Justice Department said the regulations were aimed at keeping children from being exposed to ads for tobacco, in support of laws that make under-age smoking illegal.
"I'm concerned that we're dealing with a commodity that is like no other … highly addictive," Justice Ruth Bader Ginsburg told Sutton. "Can you make a distinction with respect to the danger of the product?"
"This is a product that is lawful in this country," Sutton replied, adding the Massachusetts law would keep the ads from reaching adults, who can legally use tobacco products.
At issue are store-front advertisements less than 14-square feet in size, which Sutton said were meant to build brand loyalty.
This prompted a question from Justice David Souter, who wondered whether this would allow ads with such messages as "Smart kids smoke" or "Wind in the Willows characters with cigarettes."
Massachusetts Assistant Attorney General William Porter argued against the tobacco companies' free speech complaint, saying the restrictions addressed the state's concerns about an addictive product.
"The same thing can be said of pornography," Justice Antonin Scalia said in response.
"These restrictions prohibit advertising that children will see every day unavoidably," Porter said.
In a rare interjection, Justice Clarence Thomas asked hypothetically whether Massachusetts could restrict advertising by McDonald's on grounds that children who eat fast food can develop health problems.
Brbara Underwood, acting solicitor general at the Justice Department, said the risks from cigarettes are greater in terms of addiction, and more focused in terms of the time in which children generally become addicted, a narrow window between the ages of 14-and-a-half and 18 years.
The regulations were to have gone into effect last February, but have been postponed by the tobacco companies' lawsuit.
The suit claims the Massachusetts rules amount to a virtual ban on all outdoor advertising because most populated areas are within 1,000 feet of a school or playground.
The 1st U.S. Circuit Court of Appeals upheld the advertising limits, saying the federal cigarette advertising law does not prohibit local restrictions on the location of tobacco advertising.
For the past two decades, the Supreme Court has allowed governments to limit truthful commercial speech if such limits directly advance a government interest and are no more extensive than necessary.
In recent years, however, the court has added to free-speech protections for advertising. Most notably, the court struck down Rhode Island's ban on liquor price ads in 1996. The law aimed to promote sobriety, but the justices said it violated free-speech rights.
The cigarette companies involved in the case are Lorillard Tobacco Co., Brown & Williamson Tobacco Corp., R.J. Reynolds Tobacco Co. and U.S. Tobacco Co.
The cases are Lorillard Tobacco v. Reilly, 00-596, and Altadis U.S.A. v. Reilly, 00-597.
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