"It's a sad day for restrictions on cigarette advertising," said Donald Garner, a Southern Illinois University Law School professor who filed a friend-of-the-court brief on behalf of the American Cancer Society and other health groups urging the court to look less strictly at speech curbs imposed to protect kids. "I would characterize this as an important victory for commercial speech. Regrettably, speech for dangerous goods and services has the same speech protection as does other products."
Advertising-industry lawyers who filed their own friend-of-the-court briefs saw the decision more positively.
"This buries the last vestige of any kind of vice exception to the First Amendment," said Dan Troy, who filed a brief for the American Advertising Federation and the U.S. Chamber of Commerce. "This was the nightmare case for the ad industry. If advertising restrictions on tobacco aimed at kids are struck down as unconstitutional, everything else is a layup."
The high court, ruling on its final day of handing down opinions from its October term, overturned a drastic set of advertising and point-of-sale restrictions Massachusetts' attorney general imposed on tobacco products. The decision is likely to affect local bans now under challenge in several cities. While the court was unanimous on some elements in the case, it repeatedly split 5 to 4 on significant issues. The court said the state was pre-empted from acting against cigarettes because of federal law and the state's ad restrictions on cigars and smokeless tobacco went too far.
"These regulations would constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers," wrote Justice Sandra Day O'Connor, delivering the court opinion. "The breadth and scope of the regulations and the process by which the attorney general adopted the regulations do not demonstrate a careful calculation of the speech interests involved."
The state restrictions, which the court called "unduly broad" and "onerous," banned advertising of tobacco products within 1,000 feet of a school or playground viewable from outside a store. Because tobacco makers have taken down their big billboards, the ban basically affected signs at stores including signs outside a store saying simply cigarettes were "for sale."
While overturning the state's curbs as too broad, the court didn't entirely rule out ad curbs. "We disagree with petitioner's claims that there is no evidence that preventing targeted campaigns and limiting youth exposure to advertising will decrease underage use of smokeless tobacco and cigars," said the opinion.
Massachusetts Attorney General Tom Reilly said the decision will turn the fight on tobacco back to Congress, a view seconded both by Philip Morris and by Matthew Myers, president of the Campaign for Tobacco-Free Kids.
Mr. Myers said the decision "imposes a greater responsibility on Congress" to let states regulate cigarette advertising and to give the Food and Drug Administration the right to regulate tobacco.
Advertising lawyers said the decision pretty much buries extensive ad curbs on tobacco and makes curbs on advertising for less deadly products less likely.
Mr. Troy suggested the court, which continues to say advertising has somewhat less First Amendment protection than political speech, erased some of the differences with the case.
Steve Brody, who filed a friend-of-the-court brief for the Association of National Advertisers, said the court took an important step by calling claims that advertising stimulates product demand a "theory."
"The Supreme Court has made clear that the government cannot reduce the adult population to receiving messages only appropriate to children," he said. "That's an important principle not only for tobacco, [but] for any company that markets a product or service that might be inappropriate for youth."
While Supreme Court justices split on various sections of the opinion, five justices supported each of the court's findings and three justices stated clearly that they wanted to give advertising greater First Amendment protection.
Justice Clarence Thomas, one of the three, warned there could be "no stopping point" if states were allowed to curb speech to protect minors. He suggested car ads could be barred to eliminate underage driving, fast-food ads barred to eliminate teenage obesity and alcohol ads barred to eliminate underage drinking.
"Respondents have identified no principle of law or logic that would preclude the imposition of restrictions on fast-food and alcohol advertising similar to those they seek to impose on tobacco advertising," he wrote.