Advertising lawyers said the court's decision last week to hear a Massachusetts tobacco advertising case is significant for two reasons. Not only did the court agree to hear arguments about whether federal law bars the state from promulgating tobacco ad curbs, it will also hear arguments about the First Amendment constitutionality of the curbs.
Ad and media groups in 1996 challenged a proposed set of U.S. Food & Drug Administration restrictions of cigarette ads as unconstitutional, only to see the case reach the Supreme Court on the limited question of whether the FDA had legal authority to act. Those groups now say the Massachusetts case could present the clearest opportunity to date for the high court to resolve questions about how First Amendment protection for commercial speech differs from the protection for non-commercial speech.
The Massachusetts case, along with the court's November decision to hear a mushroom grower's claim that assessments for industry marketing programs amount to "compelled speech," could allow the court to make it much harder for the government to limit advertising not just for tobacco, but also for liquor, violent movies, and even drugs, the lawyers said.
"The court could have taken [the Massachusetts case] only on the pre-emption issue," said Floyd Abrams, a First Amendment attorney who is representing Manhattan convenience stores in a similar case challenging New York tobacco ad curbs. "I thought it meaningful that they agreed to take it as well on the First Amendment issues."
The Massachusetts case stems from state Attorney General Thomas Reilly's early 1999 attempt to categorize some tobacco marketing acts as "unfair or deceptive acts or practices." The curbs banned almost all signage within 1,000 feet of a school or playground; required point-of-sale materials to be at least five feet off the ground; required cigar companies to devote 25% of ads and packaging to warning messages; and banned giveaways with tobacco products.
Tobacco makers had earlier agreed to remove outdoor billboards nationally and not give away products containing tobacco brand names, but Massachusetts' regulations went well beyond those the tobacco companies had agreed to.
Cigarette companies challenged the state regulations. They argued that the effect would be to ban tobacco signs anywhere in several major cities of the state and that federal laws pre-empted the state from some ad restrictions. Along with cigar and smokeless tobacco companies, they also argued that the state's rules were unconstitutional. The tobacco companies claimed that the state was preventing adults from seeing legal advertising in the interest of protecting kids without sufficient proof that curbs would affect kids smoking.
A U.S. District Court in Boston upheld the curbs, and almost all the regulations were again upheld by the 1st Circuit Court of Appeals. That left the Massachusetts appeals court in agreement with a 7th Circuit Court of Appeals in Chicago and the 2nd Circuit Court of Appeals in New York that federal law didn't preclude states or cities from enacting their own tobacco ad curbs. But the decision was also in conflict with the 9th Circuit Court of Appeals in San Francisco, which had overturned a Tacoma, Wash., law, saying federal law pre-empted state actions.
The surprise of the high court decision isn't just that it will hear arguments about the conflict, however. The Supreme Court "granted the entire petition so attorneys will have to address [what ad curbs are constitutional]," said Richard Samp, counsel for the Washington Legal Foundation. The Foundation filed a friend of the court brief in the case urging the court to use the case to take a new look at how and when advertising could be limited.
In recent years, government attempts to restrict advertising had to meet a standard laid out in a case called Central Hudson. To curb ads, governments had to show that there is a legitimate government interest involved, that the specific curb proposed will advance that interest, that the curbs are narrowly tailored and that there aren't other means available to achieve the same aim without limiting speech.
"Depending on how it is resolved, it goes to the broader issues of what kind of protections you can provide kids when advertising is directed to adults," said Dan Jaffe, exec VP of the Association of National Advertisers.
He added, "This is by far the most significant advertising case to come to the court." Mr. Abrams said the court "may well use this case as a mechanism to look at whether Central Hudson provides enough protections."
Some other lawyers, though, cautioned the high court might never get beyond the right of Massachusetts to act at all. "That is the advertising lawyers' dream," said Matthew Myers, exec director of the Campaign for Tobacco-Free Kids. "The lesson of the last two years is [that] the court is not ready to overturn Central Hudson. I'm hopeful this case, once and for all, will limit the location of tobacco ads to protect children."
Jeff Perlman, senior VP-government relations for the American Advertising Federation, said the greatest likelihood is the court will not get beyond the question of whether states can act. "I do hope they recognize the free speech issue, but the likelihood is they will decide this on pre-emption," he said.