Tobacco Ads vs. Free Speech

The Supreme Court agreed Monday to use a dispute over state limits on cigarette advertising to possibly consider giving commercial speech broader protection against government regulation.

The court said it will hear tobacco companies' argument that limits on cigarette and cigar advertising at retail stores in Massachusetts violate constitutional free-speech protections. In recent years, the justices have edged toward giving commercial speech the same constitutional protection as political or artistic expression.

The tobacco companies also say the limits are pre-empted by federal standards on cigarette ads.

In 1998, the tobacco industry agreed to pay the states almost $250 billion and to stop advertising on billboards or on signs posted in shopping malls, arenas and stadiums. The agreement allowed stores that sell cigarettes to display outdoor signs of no more than 14 square feet.

Last year the Massachusetts attorney general adopted a rule banning all outdoor advertising within 1,000 feet of any elementary or secondary school or public playground. Inside retail stores, cigarette ads must be placed higher than children's eye level at least 5 feet above the floor and tobacco products must be placed out of customers' reach.

A group of cigarette- and cigar-makers challenged the rules, saying they amounted to a virtual ban on outdoor advertising because most populated areas are within 1,000 feet of a school or playground.

The companies said the rules were pre-empted by the Federal Cigarette Labeling and Advertising Act, which sets uniform labeling requirements and bans broadcast advertising. And, they said the advertising limits violated the Constitution's First Amendment protection of free speech.

A federal judge upheld the outdoor advertising ban but threw out the limits on advertising inside retail stores.

The 1st U.S. Circuit Court of Appeals upheld all of the advertising limits. The federal cigarette advertising law does not prohibit local restrictions on the location of tobacco advertising, the court said. In addition, it said the state could try to reduce underage smoking by barring advertising in "areas where children are more likely to be."

The Supreme Court for two decades has allowed governments to limit truthful and nonmisleading commercial speech if such limits directly advance some asserted government interest and are no more extensive than necessary.

In the appeal acted on Monday, the tobacco companies said that standard does not provide enough protection for some commercial speech, contending it "permits a virtual ban on the advertising of any product, such as tobacco, that is lawful for adults but not for children."

The companies also said the federal tobacco-advertising law pre-empts limits such as those adopted in Massachusetts.

State Attorney General Thomas Reilly said the state rule was a "targeted restriction on commercial speec that leaves ample room for advertising to adults."

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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