‘Divided’ Supreme Court Weighs Massachusetts Tobacco Advertising Ban

A "closely divided" Supreme Court yesterday heard arguments on Massachusetts' 1999 ban on tobacco advertising within 1,000 feet of parks or schools, with some justices indicating that tobacco was a dangerous product whose restriction is justified by the state, while others suggested that Massachusetts had overstepped its constitutional and legal bounds in enacting the advertising ban, the Los Angeles Times reports. Arguing for the tobacco industry, Jeffrey Sutton said that the "truthful commercial advertising" by tobacco companies deserved the "full protection" of the 1st Amendment's free speech provision (Savage, Los Angeles Times, 4/26). Responding to Justice Ruth Bader Ginsburg's statement that tobacco is "highly addictive and especially dangerous to children," Sutton said, "There's no vice exception to the 1st Amendment," noting that the court has previously protected advertising for casinos and liquor (Murray, Washington Times, 4/26). Sutton also argued that the Massachusetts law -- established by the state to restrict the amount of tobacco advertising seen by children -- violates the 1969 Federal Cigarette Labeling and Advertising Act, which says that states cannot enact prohibitions or restrictions on cigarette advertising that are based "on smoking and health" (Klein, Media General News Service/Richmond Times-Dispatch, 4/26). However, Justice Sandra Day O'Connor questioned this reasoning, saying that the federal law "seem[s] to be directed more toward what has to be on cigarette labels" than advertising restrictions. "Is a state not entitled to do something about promotion and advertising to the extent that it encourages children to smoke?," she asked (Healy, Baltimore Sun, 4/26).

Representing Massachusetts, state Assistant Attorney General William Porter argued that the advertising ban is "a limited and legitimate way for the state to carry out its interest in preventing tobacco sales to minors" (Bikuspic, USA Today, 4/26). However, the Los Angeles Times reports, the court's "smokers' contingent" -- consisting of Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, all "longtime smokers" -- "sharply questioned" Porter, with Scalia asking why the court should not afford tobacco advertising the same protections it granted pornography (Los Angeles Times, 4/26). Thomas asked acting U.S. Solicitor General Barbara Underwood, arguing on behalf of Massachusetts, if the state could restrict advertising by McDonald's if it demonstrated that fast food "causes health problems throughout life for kids." Underwood "rejected" the analogy, saying that cigarettes pose a "health danger of unparalled magnitude." Despite each side being "peppered ... with questions," USA Today reports that the nine justices "left no clear indication of how a majority would rule in the upcoming weeks" (Biskupic, USA Today, 4/26). A decision in the case of Lorillard Tobacco Co. v. Reilly is expected in June (Media General News Service/Richmond Times-Dispatch, 4/26).