A HOLLOW FIRST AMENDMENT?

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Does the First Amendment allow the state of California to dictate, in exact detail, how advertisers use such green marketing buzz phrases as biodegradable, ozone-friendly and recyclable?

The answer has embroiled advertising industry associations and other business groups in a three-year legal battle with state officials. Now that confrontation seems to be coming to an end in the industry's favor, yet the First Amendment issue is unresolved.

The California legislature this year voted to repeal the restrictive green marketing rules, first enacted in 1990, and Gov. Pete Wilson is expected to sign that repeal bill this month. (One reason for California's change of heart: a more active role by the Federal Trade Commission in setting useful but less restrictive national guidelines for green marketing.)

California's law decreed rigid, narrow official definitions for such terms as "recyclable," and threatened criminal action against advertisers who used any other meaning for the words-even though other meanings, properly explained in copy, could be completely accurate and truthful. It also raised the specter of a patchwork of state rules that would cripple consumers' ability to get this kind of information about nationally distributed products.

What's troublesome is this: Twice federal courts upheld the California law over objections that it violated First Amendment protections for truthful commercial speech. Last week, the U.S. Supreme Court declined to review the lower court decisions.

If advertising's First Amendment protection is to mean anything, reviewing courts must look with suspicion on efforts like California's and demand careful proof that restrictions on truthful advertising further a legitimate government purpose, and do so in a way that is no more restrictive than necessary.

This the courts are not doing. No real burden was placed on California to justify these rules, just as the lower federal courts accepted with little question the city of Baltimore's assertion that a ban on outdoor advertising for cigarettes and alcoholic beverages was necessary to curb illegal underage consumption of those products.

If the courts go on asking so little of would-be ad censors, what becomes of the "protections" promised by the First Amendment?

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