First Amendment lawyers cautioned that predicting the justices' decision based on comments at oral arguments can be fraught with peril, but said the extensive time the court spent questioning lawyers about whether federal law bars the state ruling does not bode well for a major commercial speech case.
"They seem to be interested in deciding the case on pre-emption," said Dan Troy, a lawyer who filed a friend of the court brief on behalf of the American Advertising Federation, adding that it appeared the court was reluctant to make First Amendment law through a tobacco case.
In the Massachusetts case, cigarette, cigar and smokeless tobacco makers are suing state Attorney General Thomas F. Reilly, challenging the state's early 1999 attempt to categorize some tobacco marketing activities as "unfair or deceptive acts or practices" and impose broad curbs on advertising.
Under the state's curbs, almost all store tobacco signs within 1,000 feet of a school or playground are banned, even inside signs viewable from outside. (Tobacco companies say the curb would bar outdoor signs mentioning tobacco in 90% of populated areas.) The rules also ban giveaways, require store point-of-sale materials to be at least 5 feet off the floor and require cigar makers to use 25% of ads and packaging for warning.
Tobacco makers are challenging the state rules on several grounds. They argued curbs on cigarette signs are pre-empted by the Federal Cigarette Labeling and Advertising Act, which says that "no requirement or prohibition based on smoking and health shall be imposed under state law with respect to advertising or promotion of any cigarettes."
They also contended the curbs on all three tobacco products are unconstitutional, effectively blocking their right to advertise a legal product. Finally, they argue that even if some curbs on free speech were allowed, the state hasn't shown either that these particular restrictions would be effective in reducing teen smoking or that there weren't other means available to achieve the same result without restricting speech.
The high court specifically asked tobacco companies to brief not only the pre-emption arguments, but also the free speech arguments, fueling hopes by ad groups that the court might be ready to tighten its definition of when ads could be regulated, effectively making it harder to impose ad curbs on other industries.
Justice Ruth Bader Ginsburg suggested that because of the harm tobacco does, it might be acceptable to put some curbs on tobacco ads, in effect creating a vice exception to the First Amendment. She asked, "Can't you make a distinction with respect to dangerous product?"
Justices Antonin Scalia and Clarence Thomas questioned how the court could limit tobacco ads without affecting other speech.
Most questions, however, were about whether Massachusetts was barred from regulating tobacco. Almost all the justices who spoke were skeptical of state and Justice Department claims that the law barring states from acting only prevented states from changing federal health and safety claim requirements.
Ad lawyers said last week they would be surprised if the high court didn't overturn Massachusetts' regulations, returning them to a lower court for a determination on whether they meet First Amendment scrutiny.