WASHINGTON- Accepting an appeal by the tobacco industry, the Supreme Court agreed today to decide whether state restrictions on cigarette advertising violate either federal law or the manufacturers' right of free speech. The case could be an important test of the court's evolving approach to commercial speech.
The industry is challenging outdoor advertising regulations issued in 1999 by the Massachusetts attorney general's office. By prohibiting billboards and signs advertising tobacco products within 1,000 feet of schools and playgrounds, as well as posters visible through store windows within those zones, the regulations eliminated nearly all displays of tobacco advertising in the state's most densely populated cities.
The regulations were upheld last July by the United States Court of Appeals for the First Circuit, in Boston. Similar advertising restrictions in New York City, Chicago and Baltimore have also been upheld by federal appeals courts. But the United States Court of Appeals for the Ninth Circuit, in San Francisco, struck down similar regulations in Tacoma- Pierce County, Wash., on the ground that the restrictions were pre-empted by a federal law that deals with cigarette labeling and advertising. Dozens of other cities and counties around the country have placed limits on tobacco advertising.
The restrictions have proliferated despite the 1998 settlement between four major cigarette manufacturers and 46 states, including Massachusetts. Under that agreement, the companies, which are among those now challenging the Massachusetts regulations, agreed to accept restrictions on outdoor advertising that were less sweeping than those Massachusetts adopted the next year.
The industry has been challenging restrictions broader than those contained in the settlement and, given the Supreme Court's active interest in the First Amendment rights of advertisers, it was only a matter of time before the justices agreed to take up the issue. The industry's challenge to broad federal restrictions proposed by the Food and Drug Administration became moot last year when the Supreme Court ruled that the agency did not have jurisdiction over tobacco products.
Among the other Massachusetts regulations under attack in the new Supreme Court case, Lorillard Tobacco Co. v. Reilly, No. 00-596, is a requirement that within the 1,000- foot zone, no portion of a tobacco advertisement may be "placed lower than five feet from the floor." The purpose is to keep the advertisements out of children's direct line of sight.
In their appeal, Lorillard, a unit of the Loews Corporation, and the other plaintiffs, the Brown & Williamson Tobacco Corporation, a division of British American Tobacco P.L.C.; the R.J. Reynolds Tobacco Company, a unit of R.J. Reynolds Tobacco Holdings; Philip Morris Inc., a unit of Philip Morris Companies; and the United States Tobacco Company, a division of UST Inc.; are arguing that the First Amendment prohibits restrictions of such "unparalleled breadth and severity" on "truthful, nonmisleading commercial speech."
Massachusetts "has enacted a set of viewpoint-discriminatory regulations that effectively eliminate from public view an entire category of commercial speech concerning a highly disfavored product," the companies told the court. The justices also accepted a companion case, an appeal filed by cigar manufacturers, Altadis U.S.A. Inc. v. Reilly, No. 00- 597. The cases will be joined for a single argument in April.
In defending the regulations, Massachusetts told the court that the companies were overstating the impact of the regulations, which the state said were aimed at children who could not legally buy tobacco products in any event and "plainly are not directed at dampening the demand for tobacco products among legitimate purchasers."
While there is widespread interest in the subject of the case, its lasting significance could lie in how the justices choose to approach the First Amendment question. In upholding the regulations, the First Circuit used an approach to commercial speech that the Supreme Court set out in a 1980 decision, Central Hudson Gas & Electric Corp. v. Public Service Commission.
Under the "Central Hudson test," government restrictions on commercial speech do not face the strict judicial scrutiny that applies to restrictions on political speech. Rather, the regulations will be upheld if they are not more extensive than necessary to accomplish a "substantial" government interest.
The court has grown increasingly protective of commercial speech in the past 20 years, and in recent cases most of the current justices have indicated in one way or another that the Central Hudson test is inadequate. In upholding the Massachusetts regulations, the First Circuit noted what it called the Supreme Court's "recent rumblings," but said that as a lower court it was without jurisdiction to adopt a new approach.
The tobacco companies are asking the justices to use this case to raise the level of constitutional protection for commercial speech. "If there is ever to be a case in which Central Hudson ought not be applied, this is that case," the appeal states.
The justices were on the bench today for the first time since hearing arguments in Bush v. Gore, exactly four weeks ago. With the year-end recess over and the upheaval of the election cases behind them, the justices returned to business as usual, with arguments, orders in several hundred cases, and decisions due to be handed down on Tuesday and Wednesday.
Linda Greenhouse, The New York Times. January 9, 2001
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