Supreme Court Will Review Bans on Outdoor Cigarette Ads

The Supreme Court agreed Monday to take up the tobacco industry’s free-speech challenge to government bans on outdoor advertising of cigarettes.

A ruling on the issue, due by summer, could determine the fate of the many city ordinances banning tobacco and alcohol advertising on billboards. The city and county of Los Angeles adopted such restrictions in 1998, banning tobacco and alcohol billboards within 1,000 feet of homes, schools, churches or parks.

Anti-smoking activists expressed concern over the court’s move.

“It’s chilling to consider that these are the same five justices [who] threw out the FDA’s ability to regulate tobacco,” said Richard Daynard, a law professor at Northeastern University in Boston. He was referring to last year’s 5-4 ruling, with conservative justices in the majority, that struck down the Clinton administration’s effort to regulate cigarettes through the Food and Drug Administration.

“I think it would be unseemly to use the 1st Amendment to protect the predatory marketing practices of an industry that makes a deadly product,” said Daynard, who heads the Tobacco Industry Liability Project.

But cigarette makers said they are trying to persuade adult smokers to try their brand of cigarettes, not to entice children to take up smoking. And they argue that the 1st Amendment protects their right to give consumers truthful information about a legal product.

They said that the billboard rule “permits a virtual ban on the advertising of any product, such as tobacco, that is lawful for adults but not for children.”

In recent years, two trends have run in opposite directions on the issue of cigarette advertising.

On the one hand, cities and states have increasingly enacted restrictions on outdoor advertising of unhealthy or unsavory products, whether cigarettes, beer or adult entertainment. Besides Los Angeles, cities including New York, Chicago, San Francisco, San Diego, Oakland and Baltimore have passed similar ordinances targeting cigarette and beer ads.

At the same time, the Supreme Court has been edging toward saying that advertising is entitled to full free-speech protection. So long as the ads provide the public with information that is truthful and accurate, the government cannot ban such commercial messages, the justices have said. In a 1996 ruling, they struck down a Rhode Island law that prohibited advertising of beer prices and said there is no “vice exception” to the 1st Amendment.

In response, local officials have stressed that they are not trying to forbid advertising but instead are seeking to protect children from unhealthy products.

The case accepted by the court Monday comes from Massachusetts. Two years ago, the state attorney general imposed a statewide ban on the outdoor advertising of tobacco products within 1,000 feet of a school or playground. The rule extended to ads in retail stores that were visible outside.

In practice, the restriction bans tobacco ads “from virtually all public areas” in the state, lawyers for the tobacco industry complained. They calculated that 91% of Boston is within 1,000 feet of a school or a park.

Nonetheless, a federal judge and the U.S. Court of Appeals in Boston upheld the ban on cigarette ads, saying that it “directly advances the [government’s] substantial interest” in protecting minors. The judges relied on a 20-year-old Supreme Court precedent that gave the government considerable leeway to regulate advertising in the public interest.

But that precedent has been sharply criticized of late, especially by Justices Antonin Scalia and Clarence Thomas. They have said that they no longer see a valid reason for giving lesser constitutional protection to so-called “commercial speech.”

In their appeal, the tobacco industry’s lawyers cited such comments from Scalia and Thomas and said that the government should not be allowed to “suppress the public display of truthful and nonmisleading speech about a single, politically unpopular product.”

Returning from their holiday recess, the justices announced Monday morning that they would hear the industry’s appeal in the case (Lorillard Tobacco Co. vs. Thomas Reilly, attorney general of Massachusetts, 00-596). Oral arguments will be heard in April.

In 1998, cigarette makers agreed to end much of their outdoor advertising. As part of their settlement with 46 states, the industry said it would not advertise in sports stadiums, shopping malls or video arcades. However, that agreement did not go so far as to ban all billboard ads.

But their lawyers object to the Massachusetts restrictions because they go further and forbid advertising in and around convenience stores.

It is unclear whether the justices will rule broadly or narrowly in the case. They could avoid the 1st Amendment issue and rule narrowly by focusing on the tobacco industry’s second argument--that the federal Cigarette Labeling and Advertising Act bars states from regulating tobacco ads.

This 1965 measure is best known for putting warning labels on cigarette packs. But it also says that states may not impose extra restrictions on the advertising of cigarettes.

The industry lawyers maintain that this federal measure trumps the state ad bans. Disagreeing, state lawyers say that it deals only with labels on cigarette packs, not outdoor billboards.

Two years ago, the U.S. 9th Circuit Court of Appeals struck down a ban on tobacco ads in Tacoma, Wash., citing the federal labeling law. That decision called into question the legality of billboard bans in California.

The Supreme Court will take up both the labeling and 1st Amendment issues in April, so its eventual ruling is likely to decide whether the various ordinances can be enforced.

Meanwhile Monday, the court rejected a free-speech claim from law professors in Virginia who objected to a state law that bars employees from downloading sexually explicit material on their office computers (Urofsky vs. Gilmore, 00-466).

The 1996 law covers more than 100,000 state employees, including librarians and university professors.

The U.S. Court of Appeals in Richmond, Va., upheld the law on an 8-4 vote and said the state, not its employees, controls the use of its computers.

In a second Virginia case, the justices turned away as premature the state’s effort to bar the use of census sampling for redrawing its electoral districts (Virginia vs. Reno, 00-862).

The Supreme Court on a 5-4 vote barred the use of census sampling for setting congressional districts, but it left open the possibility that the Census Bureau might use sampling to adjust other numbers. The bureau has not announced yet exactly what it will do.