WASHINGTON -- The Supreme Court agreed Monday to review state restrictions on tobacco advertising, in a case that could give the court an opportunity to limit government regulation of truthful commercial speech.
Some Supreme Court justices and lower court judges in recent years have suggested that truthful advertising should get greater protection under the 1st Amendment, but the high court has been unable to come up with a new standard.
In taking the tobacco case from Massachusetts, the justices may get another chance to decide whether truthful advertising should be treated more like non-commercial speech and largely be exempt from government regulation.
The case originated in 1999, when Massachusetts enacted regulations that banned tobacco advertising on billboards near schools and playgrounds, and restricted the placement of ads in retail stores that children might frequent. Major tobacco companies immediately sued to block the regulations, arguing that they were pre-empted by federal law and violated their commercial speech rights under the 1st Amendment.
A federal appeals court in Boston ruled against the companies in July, holding that the regulations did not conflict with federal law and were permissible under the 1st Amendment. The appeals court said the regulations advanced a legitimate state interest in protecting children from tobacco's harmful effects.
To reach its decision on the 1st Amendment issue, the appeals court applied a 1980 test that the Supreme Court adopted for determining the constitutionality of government restrictions on commercial speech. That test permits government regulation of truthful advertising if it furthers a substantial government interest and is no broader than necessary to serve that interest.
The appeals court noted that some--including Supreme Court justices--have called for an overhaul of that test, but said that job was for the Supreme Court.
Richard Samp, chief counsel for the Washington Legal Foundation, said the Supreme Court might be ready to do so, noting that in a 1996 case several justices indicated the old test should be reworked. The legal foundation has filed a brief in the tobacco case urging the court to give truthful, non-misleading commercial speech greater protection.
"The court, I'm sure, will be looking at this case from the broader perspective of all commercial speech regulations," Samp said.
Samp suggested the court's decision to address the 1st Amendment issue--instead of focusing merely on whether federal law pre-empts the regulations--suggests "the court is ready to rethink" the 1980 test.
The issue has divided lower courts. The federal appeals court in Boston agreed with appeals courts in Chicago and New York that such regulations were not pre-empted by federal standards on cigarette advertising and promotions.
The U.S. Court of Appeals for the 7th Circuit in Chicago, for example, ruled that federal law did not pre-empt Chicago regulations restricting outdoor advertising of cigarettes and alcoholic beverages. But the U.S. Court of Appeals for the 9th Circuit has ruled that those federal standards do prohibit bans on outdoor advertising of cigarettes.
Massachusetts' restrictions are much more severe than those the tobacco companies agreed to abide by in 1998 as part of a $250 billion settlement with the states. The companies agreed then not to advertise on billboards or signs in malls and sports stadiums.
Massachusetts' regulations, however, ban all outdoor advertising within 1,000 feet of schools and playgrounds.
They also require merchants to put cigarette advertising at least 5 feet above the floor, above the eye level of many children.
A decision in the case is expected by July.
Jan Crawford Greenburg, Chicago Tribune. January 9, 2001
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