Tobacco ad case not likely to set First Amendment precedent

Thursday, April 26, 2001

The tobacco cases argued before the Supreme Court yesterday were billed in advance as major tests of the court’s thinking on commercial speech and how much First Amendment protection it deserves.

But it turned out that the First Amendment was far from the justices’ minds during most of the hourlong arguments in Lorillard Tobacco v. Reilly and Altadis USA Inc. v. Reilly. It seems unlikely that the court’s ruling will chart any new ground on commercial speech.

At issue in the cases are regulations promulgated by the Massachusetts attorney general that restrict tobacco advertising in ways that go beyond either previous federal regulations or the 1998 agreement between the states and the tobacco industry. The Massachusetts regulations forbid outdoor advertising within 1,000 feet of schools and playgrounds, as well as most kinds of indoor store advertising that might be visible to children.

The tobacco industry, asserting that the new rules would effectively ban advertising in more than 90% of the urban areas in the state where advertising would be possible, challenged the regulations as a violation of their First Amendment rights. They also said that the federal law that regulates cigarette labels and advertising preempts state regulations like those in Massachusetts.

It was that preemption issue that took up most of the argument time at the court yesterday. The justices focused on a provision of the federal law that forbids states from enacting tobacco-advertising restrictions “based on smoking and health.”

Acting Solicitor General Barbara Underwood, arguing in support of Massachusetts, said the phrase only forbids state regulation of assertions about the relationship between tobacco and health, but does not bar restrictions about the placement or type of advertising about tobacco in general.

Assistant Massachusetts Attorney General William Porter also said, “I think it would be a great stretch to infer… that Congress was invading the traditional authority of the states to regulate the location of advertising.”

But Jeffrey Sutton, arguing for the industry, said, “Of course [the restrictions are] based on smoking and health, as one look at Massachusetts’ First Amendment argument proves.”

Sutton was referring to the state’s defense of the regulations as a valid way to serve the compelling state interest in preventing underage smoking. “There’s ample evidence that advertising stimulates demand for the product, which is illegal for sale to children in all 50 states,” said Porter.

Porter also asserted that the state regulations “meet each requirement in the Central Hudson test,” referring to the high court’s 1980 decision in Central Hudson Gas & Electric Corp. v. Public Service Commission. That ruling established the current test for evaluating government restrictions on advertising. Under the test, commercial-speech restrictions are examined using an intermediate level of scrutiny that looks to several factors, including the importance of the government interest and the extensiveness of the regulation.

In the cases before the court, a federal appeals panel measured the Massachusetts regulations against the Central Hudson test and upheld them — leading the tobacco industry and First Amendment advocates to urge the court to discard or amend the test. They want the court to apply “strict scrutiny” to commercial-speech regulations — a level of scrutiny used on restrictions of core political speech, under which most regulations are struck down.

“The key problem with this particular law and why it gets strict scrutiny,” Sutton told the justices, “is the fact that it does suppress a substantial amount of speech directed to adults about a lawful product, and does so solely based on the message in the speech.”

Justice Anthony Kennedy replied to Sutton, “You don’t need to argue that in order to prevail, do you?” Kennedy suggested that as described by Sutton, the Massachusetts regulations are “more extensive than necessary” — one of the components of the Central Hudson test. In other words, Kennedy seemed to be saying that if the Massachusetts restriction can be struck down under the Central Hudson test, there is no need for the court to fashion a new test.

“You’re exactly right, Justice Kennedy,” said Sutton. “We do not need to have a strict scrutiny argument in order to win.”

In the brief time Porter had to defend the regulations on First Amendment grounds, he said the restrictions were “narrowly tailored” as required by Central Hudson. “It’s focused on the places that we know children will be day-in and day-out.”

Perhaps because so little time was spent on the First Amendment issue, toward the end of the hour Justice Clarence Thomas — the leading commercial-speech champion on the court — broke with his usual tradition of silence during oral arguments. He asked a question, only his second since the court’s term began last October.

“Let’s assume that it can be demonstrated that eating regularly at fast food joints, including McDonald’s, causes health problems throughout life for kids,” Thomas posited. “What would prevent the state from restricting McDonald’s ads aimed at children?”

Underwood began to answer the question, suggesting that tobacco addiction is a “health danger of unparalleled magnitude” unlike any other health risk, such as eating too much fast food. But in mid-sentence, her time before the court was up, and Thomas’s question went mostly unanswered.

A decision in the cases could come anytime before the court term ends in late June or early July.

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