State Curbs on Tobacco Ads Weighed by Justices

Are cigarettes so dangerous to children that the state may ban outdoor advertising of them near schools and playgrounds?

Or are cigarettes more like beer, pornography or gambling, legal products whose sellers have a free-speech right to advertise them?

The Supreme Court struggled with those questions Wednesday as the justices heard arguments in the final cases of this term.

Three years ago, as part of their legal settlement with the states, the major tobacco companies agreed to stop advertising cigarettes on large billboards.

But officials in Massachusetts decided to go further and forbid other tobacco ads--including those for cigars and smokeless tobacco--that can be seen by minors.

Retail Stores Part of Ban

The ad ban includes signs in retail stores if they can be observed from outside and are within 1,000 feet of a school or playground. In practice, this ban reaches more than 90% of the land in metropolitan areas such as Boston, say lawyers for the major tobacco firms.

They were in the Supreme Court on Wednesday arguing that the 1st Amendment, as well as the Cigarette Labeling Act of 1969, forbids such state bans on advertising.

“This is a lawful product,” said attorney Jeffrey Sutton of Columbus, Ohio, speaking for the tobacco companies. If pornography and “racist words” get the full protection of the 1st Amendment, “surely truthful commercial advertising” deserves the same protection, he argued. “This ban is emphatically a prohibition” on speaking to the public through outdoor ads, he stated.

“I don’t know any other lawful product like this,” responded Justice Ruth Bader Ginsburg. Cigarettes are “highly addictive.” Children “can get hooked at age 13 and not get off it for the rest of their lives.”

Sutton countered that the 1st Amendment does not contain a “vice exception.” He cited recent high court rulings that struck down advertising bans on casino gambling in Louisiana and beer prices in Rhode Island. In both instances, the court said that the bans could not stand just because state officials believed the product was potentially dangerous to consumers.

Justice Anthony M. Kennedy interrupted to pick up on Ginsburg’s point. This is an addictive product, he said, not just a vice. “There is something about this commodity that is especially dangerous. It’s a drug most people become addicted to.”

“This is targeted too on schools and parks, where children are concentrated,” added Justice Sandra Day O’Connor.

But the court’s smokers’ contingent took up the arguments of the tobacco industry. Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas are longtime smokers, and they sharply questioned the state’s lawyers.

Scalia focused on pornography, noting that it has been given the full protection of the 1st Amendment.

“We have been very, very picky about protecting pornography. We have been insistent on saying you can’t keep it away from adults as a way to protect children,” he said. Massachusetts is arguing the opposite, he said--that it can ban tobacco ads for adults for fear that they will be seen by children.

Can the state make it illegal for a business to put up a sign that says “Adult bookstore” or “Pornogaphy for Sale”? Scalia asked.

Probably not, the state lawyer said. But the Massachusetts law allows retailers to say that cigarettes are for sale. The ban forbids only ads promoting particular brands, he said.

Justice Thomas, who rarely asks questions, wondered aloud about McDonald’s and fast food.

Suppose it were conclusively proved that fast food is a danger to your health, and children become hooked on fast food because of McDonald’s. Could the state make it illegal for McDonald’s to advertise? Thomas asked.

He presumably knew the answer for himself. In past opinions, Thomas has argued that truthful advertising deserves the full protection of the 1st Amendment.

But the Justice Department lawyer, defending the state law, asserted again that cigarettes are especially dangerous for minors, unlike any other product.

The tenor of the argument showed the court to be closely divided. The justices may avoid ruling on the 1st Amendment and instead decide the case, Lorillard Tobacco Co. vs. Reilly, 00-596, on the narrow basis of the federal Cigarette Labeling Act. As amended in 1969, it says that states may not impose their own advertising restrictions on cigarettes. The tobacco industry lawyers argue that this federal law trumps the Massachusetts measure.

Challenge to Earlier Convictions Rejected

In other action Wednesday, the court said that criminals who are sentenced to long prison terms because of repeat offenses cannot go back and challenge an earlier conviction.

A California man, Earthy Daniels Jr., was convicted of a firearms offense in 1994 and sentenced to 15 years in federal prison because he had several earlier convictions for burglary or robbery.

On a 5-4 vote, the court ruled that he has no right now to challenge the validity of those earlier convictions (Daniels vs. U.S., 99-9136). O’Connor, speaking for the conservative majority, said Daniels should have contested these convictions years ago.