Harmful Products Ruling Could Halt Tobacco Ads

In a decision hailed as a victory for those seeking to ban tobacco advertising, the Supreme Court ruled Tuesday that states may ban ads for products that have “serious harmful effects” on citizens.

Lawyers for the mass media and tobacco companies had been confident before Tuesday’s decision that the advertising of lawful products would be protected as free speech under the Constitution. In the last 11 years, the court has regularly voted down state laws that prohibit ads for a wide range of other products, such as contraceptives, legal services or drugs.

Ruled on Gambling Ads

But, in a case involving a Puerto Rican ban on gambling ads, the court headed in the other direction, attorneys said. The decision appears to clear the way for legislation banning tobacco advertising.

“It looks like a sharp cutback in the commercial speech doctrine,” said Washington attorney Timothy Dyk, who represented CBS Inc. and other broadcasters before the court. “What it suggests is that the state is now free to take the step” of banning ads for products that are sold legally.

At issue before the court was a Puerto Rican law that authorized gambling casinos but prohibited casino owners from advertising their establishments on the island. They were permitted to run ads on the U.S. mainland with the hope of drawing tourists.

Casino Owner Fined

A casino owner who had been fined for violating the law appealed his case, unsuccessfully, to the Puerto Rican Supreme Court. He then urged the high court to overturn the statute on the grounds that it violated the First Amendment (Posadas de Puerto Rico Associates vs. Tourism Co. of Puerto Rico, 84-1903).

The justices upheld the law by a 5-4 margin.

“The particular kind of commercial speech at issue . . . may be restricted only if the government’s interest in doing so is substantial,” Justice William H. Rehnquist wrote for the court majority. But the Puerto Rican Legislature’s belief that “excessive casino gambling . . . would produce serious harmful effects on health, safety and welfare of Puerto Rican citizens . . . constitutes a ‘substantial’ governmental interest,” he concluded.

Justice John Paul Stevens, in a dissenting opinion joined by Justices Thurgood Marshall, Harry A. Blackmun and William J. Brennan Jr., said that the law’s “rather bizarre restraints on speech are . . . plainly forbidden by the First Amendment.”

Permitting casinos to run ads on the mainland but not in Puerto Rico suggests that “this court is willing to uphold an Illinois regulation of speech that subjects the New York Times to one standard and the Chicago Tribune to another,” Stevens said.

Nationwide Ban Urged

A nationwide ban on tobacco advertising was urged last December by the American Medical Assn., which said that tobacco products result in 314,000 deaths a year nationwide.

Rep. Mike Synar (D-Okla.), along with 13 other sponsors, introduced a bill in the House last month to ban ads and promotions for tobacco products in broadcasts, newspapers and magazines and on billboards, matchbooks and store displays.

The measure, which is scheduled for its first hearing on July 18, would even stop tobacco firms from sponsoring athletic or artistic events such as the Virginia Slims tennis tournaments.

Tuesday’s ruling “provides a substantial boost to our effort and punches holes in our opponent’s defense,” Synar said. “The tobacco industry can’t continue to wrap itself in the First Amendment.”

Broadcast Ads Banned

Tobacco firms spend an estimated $2 billion a year on advertising and promotion, although broadcast ads for cigarettes were banned by Congress in 1971.

An attorney who represented the American Newspaper Publishers Assn. said he “was amazed by the court’s shift in gears” on what is covered as free speech.

“I had assumed from the earlier cases that we were talking here about the ‘marketplace of ideas’ and that more speech is better,” P. Cameron DeVore, a Seattle attorney, said. Tuesday’s decision “certainly suggests Congress could find that a product was damaging and could regulate or even ban the advertising of it.”