The U.S. Supreme Court has struck down Massachusetts regulations that ban outdoor advertising of tobacco products while imposing virtually no restrictions on other products’ advertising.
The decision was a victory for the Washington Legal Foundation (WLF), which had filed a brief in the case, Lorillard Tobacco Co. v. Reilly, urging that the regulations be struck down. The court held that the Massachusetts regulations (the “Regulations”) are doubly deficient: they are preempted by federal law and they violate the First Amendment. The court accepted WLF’s argument that the First Amendment prohibits a state or local government from deciding what advertising is acceptable based solely on the message conveyed by the advertisement.
WLF attorneys expressed gratification with the ruling, which culminates WLF’s five-year battle against commercial speech restrictions of this type. “While cities should be permitted to impose reasonable restrictions on advertising based on aesthetic and traffic-safety concerns, the First Amendment demands that any such restrictions be imposed in a content-neutral fashion — unless the government can produce strong evidence demonstrating why advertising conveying certain truthful messages needs to be suppressed,” WLF Chief Counsel Richard Samp said after reading the Supreme’s decision. “Massachusetts failed to produce any such evidence in this case,” Samp said.
The Regulations attempted to ban virtually all outdoor tobacco signs within populated areas of Massachusetts, as well as indoor signs that are visible from the street. The Regulations were challenged by Massachusetts businesses that display tobacco advertising on the front of their stores, as well as cigarette, cigar, and smokeless tobacco manufacturers.
The Supreme Court reiterated its belief that all truthful commercial speech — provided it does not propose an illegal transaction — is entitled to substantial First Amendment protection. The Court accepted WLF’s argument that Massachusetts’s attempt to single out one type of advertising for prohibition cannot withstand First Amendment scrutiny in the absence of any evidence that the ban is narrowly drawn to address a substantial government concern and that the ban is likely to alleviate that concern “to a material degree.”
WLF had argued that the Supreme Court’s recent 44 Liquormart decision made plain that courts may not accept at face value a city’s claim that a ban on tobacco advertising would reduce underage smoking to a “material degree.” WLF argued that if a State is seriously interested in reducing underage smoking, it should step up enforcement against merchants who violate the ban on sales to minors rather than attempting to suppress speech.
The U.S. Court of Appeals for the First Circuit last year rejected that argument, holding that the First Amendment does not require a state to take all possible non-speech related steps to reduce underage smoking before imposing advertising bans. The appeals court termed the Regulations a “reasonable” restraint on speech, even though the result was to prohibit virtually all outdoor advertising of tobacco products, including signs outside stores merely announcing that tobacco products are for sale.
The Supreme Court also agreed with WLF’s argument that the Federal Cigarette Labeling and Advertising Act (the “Act”) prohibits any attempts by state and local governments to regulate cigarette advertising. The Act provides that state and local governments may neither regulate nor prohibit cigarette advertising to the extent that such regulation is “based on smoking and health.” 15 U.S.C. § 1334(b). The Court held that the Regulations quite clearly are “based on smoking and health” and thus are preempted by federal law.
The Washington Legal Foundation is a nonprofit public interest law and policy center with supporters in all 50 states, including many in Massachusetts. It devotes a substantial portion of its resources to defending the rights of businesses who have become the targets of unwarranted government regulation.
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For further information, contact WLF Chief Counsel Richard Samp, (202) 588-0302.