Justices Consider Speech Regulation

by Apr 26, 2001, 12:00 AM

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Federal curbs on tobacco advertising mean states can't pile on their own additional ad bans, a lawyer for the tobacco industry argued Wednesday.

Tobacco companies want the Supreme Court to throw out proposed tobacco advertising restrictions in Massachusetts. The Massachusetts regulations would pick up where the 1969 federal ban on broadcast ads and the later national end to tobacco billboards left off.

Most of Wednesday's lively oral argument focused on a legal question _ whether the 1969 law passed by Congress trumps state efforts to regulate tobacco. If the court ruled for the tobacco companies on that issue it could sidestep a larger free-speech issue.

Justice Ruth Bader Ginsburg challenged tobacco company lawyer Jeffrey Sutton to explain why states should not try additional ways to keep an addictive product _ she called it a drug _ like tobacco away from children.

"We're dealing with a commodity like no other. This is highly addictive and especially dangerous to children, who can get hooked at age 13 and not get off it for the rest of their lives," Ginsburg said.

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.

Tobacco companies claim that commercial speech _ in this case, advertising _ should be given broader protection against regulation. The companies propose something closer to the free-speech status of political and artistic expression.

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 are gone, there are still large, colorful tobacco ads in convenience stores, at bus stops and elsewhere. In response, Massachusetts passed a separate ban on cigarette ads in stores near schools or playgrounds.

Under the national settlement, 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.

Massachusetts followed up the next year with 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.

Tobacco opponents say that since the settlement, store windows have been increasingly filled with neon cigarette signs.

The Massachusetts rules also would keep tobacco products behind the store counter and prohibit advertising at children's eye level, defined as five feet or lower.

The state cited reports by the Food and Drug Administration and the Surgeon General that tobacco advertising significantly influences the use of tobacco by children.

The regulations were to have gone into effect in 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. In addition, the court said the state could try to reduce underage smoking by barring advertising in "areas where children are more likely to be."

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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