Advertisers’ Free-Speech Rights Bolstered

The Supreme Court, bolstering the free-speech rights of advertisers, ruled Monday that the government cannot bar the promotion of lawful products it deems undesirable, a decision that casts doubt on President Clinton’s campaign to ban cigarette ads aimed at young people.

On a 9-0 vote, the court struck down laws in Rhode Island and 10 other states that forbid retailers to advertise their prices for beer, wine or liquor.

“A complete ban on truthful, non-misleading commercial speech” is almost always unconstitutional, wrote Justice John Paul Stevens in one of the court’s most powerful defenses of advertising as valuable, free speech.

Significantly, Stevens stressed that there is no “vice exception” to the 1st Amendment that would allow a “paternalistic” government to restrict advertising for lawful but suspect products. These range from alcohol and lottery tickets to casino gambling and topless dancing.

“The 1st Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good,” he said.

Lawyers who represent advertisers called Monday’s opinion a landmark victory.

“This is a monumentally important decision for commercial speech,” said Dan Troy, a Washington attorney who represented the American Advertising Federation and the Magazine Publishers of America. “This is the first time the court has clearly repudiated the government’s paternalistic rationale for restrictions on advertising.”

*

The court’s opinion did not mention tobacco, but its impact will surely be felt by the industry.

Last August, the president proposed a sweeping ban on cigarette ads that could be seen by young people. For example, hats and T-shirts could not be sold with names or symbols of tobacco products, such as “Joe Camel.” Such sports events as the “Winston Cup” auto race and the “Virginia Slims” tennis tournaments no longer would be permitted to use the tobacco company’s endorsement.

And, perhaps broadest of all, magazines, newspapers and other print media would not be permitted to carry tobacco ads, except in simple black-and-white text.

The proposed regulation has not been put into force by the Food and Drug Administration but a coalition of advertisers and media companies has filed a lawsuit in North Carolina contending that it is unconstitutional.

The court’s ruling may also strike down Baltimore’s attempt to ban billboards advertising alcohol and tobacco within its city limits. A federal appeals court recently upheld the city’s billboard bans but a coalition of advertisers has appealed to the Supreme Court.

Lawyers for Rhode Island had argued before the high court that the ban on price advertising was designed to reduce consumption. But the justices found no evidence that this strategy works. The tiny state actually has one of the nation’s highest per capita rates of alcohol consumption.

Further, if the state wanted to cut consumption, it could raise taxes on alcohol, the court said, or ban its sale entirely under terms of the 21st Amendment, which repealed Prohibition in 1933.

Still, Monday’s unanimous decision does not mean that all nine justices agree entirely on how to handle cases involving advertising and the 1st Amendment.

While Stevens wrote the lead opinion in the case (44 Liquormart vs. Rhode Island, 94-1140), three other justices added concurring opinions that differed slightly.

But five justices, a clear majority, said advertising that is not deceptive is entitled to full constitutional protection. Speaking most broadly, Justice Clarence Thomas said that “all attempts to dissuade legal choices by citizens by keeping them ignorant are impermissible.”

In the future, much depends on whether a restriction on advertising is labeled a “ban” or a “regulation.”

The court has said, for example, that a city can regulate the placement and size of billboards but that it cannot ban those with a particular message. Not surprisingly, FDA lawyers said that their proposed restrictions on cigarette ads are merely regulations, not bans. The advertisers characterize them as a broad ban for one type of message.

*

Until the 1970s, the 1st Amendment was seen as protecting political speech but not advertising or other commercial messages. But in 1976, the court struck down a Virginia law that prohibited retailers from advertising pharmacy prices, saying that this was important, truthful information that consumers needed. Soon after, the justices struck down the state laws that entirely barred lawyers from advertising their services.

But the court has wavered. Last year, for example, the court on a 5-4 vote upheld a Florida law that barred lawyers from speaking to accident victims for 30 days.