Amicus Curiae Brief — Lorillard Tobacco Co. v. Reilly

MOTION, FILED

Nov 162000 (@)

No. 00-596

IN THE |

Supreme Court of the United States

LORILLARD TOBACCO Co., ef ail.,

Petitioners,

V.

THOMAS F. REILLY, Attorney General

of Massachusetts,

Respondent.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the First Circuit

MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

= DANIEL J. POPEO

RICHARD A. SAMP

(Counsel of Record)

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

Date: November 16, 2000

AMERICAN FINANCIAL PRINTERS * WASHINGTON, DC « (202) 457-0030

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or mIW E586 0

IN THE

SUPREME COURT OF THE UNITED STATES

No. 00-596

LORILLARD TOBACCO Co., ef ai.,

Petitioners,

Vi

THOMAS F. REILLY, Attorney General

of Massachusetts,

Respondent.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the First Circuit

MOTION FOR LEAVE TO FILE BRIEF OF

WASHINGTON LEGAL FOUNDATION AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

Pursuant to Rule 37.2 of the Rules of this Court, the

Washington Legal Foundation (WLF) respectfully moves for

leave to file the attached brief as amicus curiae in support of

Petitioners. Petitioners have consented to the filing of this

brief; their letter of consent has been lodged with the Clerk

of the Court. WLF has been unable to obtain the consent of

Counsel for Respondent, thereby necessitating the filing of

this motion.

a

WLF is a non-profit public interest law and policy

center with supporters in all 50 states, including many in

Massachusetts. WLF regularly appears before federal and

State courts promoting economic liberty, free enterprise, and

a limited and accountable government.

WLEF devotes a substantial portion of its resources to

protecting the right of commercial free speech, appearing

before this Court in cases raising commercial speech issues.

See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S.

484 (1996). WLEF recently successfully challenged the

constitutionality of Food and Drug - Administration

restrictions on commercial speech. Washington Legal

Foundation v. Friedman, 13 F. Supp. 2d 51 (D.D.C. 1998),

appeal dismissed, 202 F.3d 331 (D.C. Cir. 2000). WLF

filed an amicus curiae brief in this case when it was before

the court of appeals.

WLF also believes strongly in the importance of

preserving the policy of national uniformity embodied in the

Federal Cigarette Labeling and Advertising Act, 15 U.S.C.

§ 1331, et seg. ("FCLAA"). That policy strongly reinforces

First Amendment values and, consequently, commercial free

speech rights by limiting state and local power to restrict

advertising.

WLEF fully supports Petitioners’ request that the Court

grant review of both of the Questions Presented in this

Petition. WLF writes separately in order to emphasize the

overriding importance of the First Amendment claims and

the need for the Court to clarify the doctrinal foundations

supporting government attempts to suppress truthful

commercial speech. Because the split among the appeals

court regarding the meaning of the FCLAA is so clear, the

3

Court might give thought to focusing on the FCLAA issue

alone and denying review on the First Amendment issue.

WLE urges the Court not to follow that course. Rather,

WLE urges that review be granted on both issues. This is

an especially appropriate case for the Court to re-examine

the conflicting strands of commercial speech law that have

troubled numerous members of the Court in recent years.

WLE has no direct interest, financial or otherwise, in

the outcome of this case. Accordingly, WLF believes that

it can bring a perspective on the issues presented that is

distinct from that of any of the parties.

For the foregoing reasons, the Washington Legal

Foundation respectfully requests that it be allowed to

participate in this case by filing the attached brief.

Respectfully submitted,

Daniel J. Popeo

Richard A. Samp

(Counsel of Record)

Washington Legal Foundation

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

Date: November 16, 2000

QUESTIONS PRESENTED

1. Whether the court of appeals erred in holding that

Massachusetts regulations that sharply limit the public

display of cigarette advertisements do not impose

prohibitions "with respect to the advertising or promotion"

of cigarettes within the meaning of the preemption provision

of the Federal Cigarette Labeling and Advertising Act.

2. Whether Massachusetts's prohibition on virtually

any public display of truthful and nonmisleading tobacco

advertisements violates the First Amendment, either under

the strict scrutiny standard that Petitioners contend is

applicable or under the test set forth in Central Hudson Gas

& Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557

(1980).

iii

TABLE OF CONTENTS

Page

TABLE Sop og). Snr iV

INTERESTS OF THE AMICUS CURIAE ......... 1

SSATEIMeN. OF BEEBE CASE 2... ec ee 2

REASONS FOR GRANTING THE PETITION ..... 7

I. THE COURT SHOULD CLARIFY THE PROPER

STANDARD TO APPLY IN CHALLENGES TO

BLANKET RESTRICTIONS OF TRUTHFUL,

NONMISLEADING COMMERCIAL SPEECH . 9

A. The Court Should Grant Review to Consider

’ Whether, in Practice, the Central Hudson Test

Provides Sufficient Protection to Truthful

eo 9

B. The Court Should Grant Review in Order to

Correct the First Circuit's Misapplication of

ek eee eee 14

Il. THE COURT SHOULD RESOLVE THE

IRRECONCILABLE CONFLICT AMONG THE

FEDERAL APPEALS COURTS REGARDING

THE SCOPE OF FCLAA PREEMPTION .... 17

CAPRI neh eer beth naenss Serre re 19

iV

TABLE OF AUTHORITIES

Page

Cases:

Bates v. State Bar of Arizona,

Cae UE REeTe Ce he a eke ee eas 10

Bolger v. Youngs Drug Prods. Corp.,

Ree Ae, PORE is hea see Ces eax ae

Central Hudson Gas & Elec. Corp. v. Public Service

Comm'n, 447 U.S. 557 (1980) ........... passim

. City of Cincinnati v. Discovery Network, Inc.,

ee hs ks a ke ee 15

Edenfield v. Fane,

Per Sts Fe kA ne RA ee 15

44 Liquormart, Inc. v. Rhode Island,

Pe Fe I nn gc ra eG a k e e oo passim

Federation of Advertising Industry Representatives,

Inc. v. Chicago, 189 F.3d 633 (7th Cir. 1999),

cert. denied, 120 S. Ct. 1671 (2000).......... 18

Greater New Orleans Broadcasting Ass'n v. United

Ae ee Me 2 ee 6, 12

Greater New York Metropolitan Food Council, Inc.

v. Giuliani, 195 F.3d 100 (2d Cir. 1999),

cert. denied, 120 S. Ct. 1671 (2000) .......... 18

Ibanez v. Florida Dep't of Bus. and Prof’!

Regulation, 512 U.S. 136 (1994) .......... 10, 14

Lindsey v. Tacoma-Pierce County Health Dep't,

195 F.3d 1065 (9th Cir. 1999), amended,

Ds Tae Ae Ce. DD ones he ee eee 17

Linmark Associates, Inc. v. Willingboro,

OSL TW. BPREGTE) <6 sce es See Ceara ee 11

Page

Penn Advertising of Baltimore, Inc. v. Mayor &

City Council, 63 F.3d 1318 (4th Cir. 1995),

vacated and remanded on other grounds, 518

U.S. 1030 (1996), adopted as modified, 101

F.3d 332 (4th Cir. 1996), cert. denied, 520

Fe LL Sy ee eaten ayy ie 18

Rubin v. Coors Brewing Co.,

PES Wie WOEEOOE 6 6 6 4 oo ee So 14, 15, 16

Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976) .. 9, 12

Statutes, Regulations and Constitutional Provisions:

es Os GS ea le Ee passim

Federal Cigarette Labeling and Advertising Act

("PCLAA"), 15. G.3.C. $1391 seg. 2... passim

DE Set gan ya et Re Barer oon eas 5, 18

i RE a a ee Ere re eR eee 5

Peer ee a ee ee ON as he SA a a 2

CP oe agra a dng es rotate 2 eae 2

| RIE ne armen tre er UM ob cll Rr 4

NINE ae Fok Sa eSbi eG et Oe ee Re otk 3

IN THE

SUPREME COURT OF THE UNITED STATES

No. 00-596

LORILLARD TOBACCO Co., ef al.,

Petitioners,

V.

THOMAS F. REILLY, Attorney General

of Massachusetts,

Respondent.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the First Circuit

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

INTERESTS OF AMICUS CURIAE

The interests of amicus curiae Washington Legal

Foundation (WLF) are set forth in the motion accompanying

this brief. '

' Pursuant to Supreme Court Rule 37.6, WLF states that no

counsel for a party authored this brief in whole or in part; and that no

person or entity, other than WLF and its counsel, contributed monetarily

to the preparation and submission of this brief.

STATEMENT OF THE CASE

In the interests of brevity, WLF hereby incorporates by

reference the Statement contained in the Petition for a Writ

of Certiorari.

In brief, Petitioners challenge regulations (the

“Regulations") promulgated by the State of Massachusetts in

January 1999 that virtually eliminate the ability of manufac-

turers, distributors, and retailers of tobacco products to

provide truthful brand and pricing information to lawful

adult consumers of tobacco products by means of "outdoor"

advertising. See 940 CMR §§ 21.00 et seq.”

The Regulations prohibit maintaining any tobacco

advertisement within 1,000 feet of any school, park, or

playground. 940 CME § 21.04(5)(a). The prohibited zone

covers between 87% and 91% of the land area in the cities

of Boston, Worcester, and Springfield. Petition Appendix

("Pet. App.") 79a. The district court determined that the

zone “effectively bans nearly all outdoor advertising, and

captures nearly all retail establishments in those cities." Jd.

The Regulations apply to all outdoor tobacco advertising,

without regard to the truthfulness of the advertisement or

whether it actually misleads any consumers.

Petitioners filed suit in May 1999 in U.S. District Court

for the District of Massachusetts, challenging the

Regulations on two principal grounds. First, Petitioners

argued that the Regulations were preempted by the Federal

Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331

* The definition of "outdoor" advertising includes advertising

inside a store that is visible from the outside.

3

et seq. (“FCLAA”), which imposes strict limits on state

regulation of tobacco advertising. Second, Petitioners

argued that the Regulations violated the First Amendment

right to engage in truthful commercial speech.

On December 2, 1999, the district court held that the

Regulations were in large measure not preempted by the

FCLAA. Pet App. 46a-60a. The court held that the

Regulations focused principally on the location of tobacco

advertisements, and that the FCLAA's preemption provision

applies only to state and local laws that seek to regulate the

content of such ads. Id. at 55a-56a. While conceding that

the preemption provision of the FCLAA could be interpreted

as applying to the Regulations if one's analysis focused on

the FCLAA's language (id. at 53a), the court rejected that

interpretation because it would "leav[e] states essentially

powerless" to exercise their "inherent police powers to

regulate smoking" -- powers that (the court believed)

Congress intended to protect. Jd. at 54a-5Sa.

The district court also upheld provisions in the

Regulations that outlaw (in the absence of age verification)

certain tobacco product promotional techniques, including

sampling, promotional give-aways, and offering gifts to

tobacco purchasers. The court held that those provisions

were not preempted by the FCLAA because they addressed

the illegality of underage smoking, not the relationship

between smoking and health. Jd. at 58a-59a.°

> The court held that the: FCLAA did preempt a provision of the

Regulations that permitted "tombstone advertising" -- small signs placed

outside retail establishments stating "Tobacco Products Sold Here." 940

CMR § 21.04(6). Pet. App. 57a. The court went on to hold that

§ 21.04(6) was severable from the remainder of the Regulations and thus

(continued...)

4

On January 24, 2000, the district court rejected

Plaintiffs' First Amendment challenge to the Regulations,

granting summary judgment to Massachusetts. Pet. App.

61a-104a. Initially, the court rejected Petitioners’ argument

that the Regulations should be subject to a heightened

standard of review, higher than the standard of review for

commercial speech set forth in Central Hudson Gas & Elec.

Corp. v. Public Service Comm'n, 447 U.S. 557 (1980). Id.

at 65a-68a. The court held that the Regulations survived the

Central Hudson test because they directly advanced a

substantial government interest (reducing youth smoking) in

a manner no more extensive than necessary. Jd. at 68a-83a.

The court held that Massachusetts's evidence was sufficient

to establish as a matter of law that "it was reasonable" for

the Attorney General to conclude that the goal of reducing

youth smoking “would be advanced in some material

respect" by restricting tobacco advertising. Jd. at 74a. The

court also held as a matter of law that virtually all of the

restrictions on advertising were sufficiently narrowly

tailored to pass constitutional muster "[iJn light of the

marginal success" of ali the state's non-speech-related

efforts to control youth smoking. Jd. at 78a.*

3(...continued)

that the remaining provisions were fully enforceable. Jd. The effect of

this ruling was to render the Regulations more restrictive of commercial

speech than as originally promulgated. Massachusetts did not appeal

from this aspect of the district court's ruling.

* The court struck down one provision on First Amendment

grounds: 940 CMR § 21.04(5)(b), which prohibited indoor, point-of-

sale tobacco advertising less than five feet from the floor. The court

held that Massachusetts failed to demonstrate that this provision was not

more extensive than necessary to serve the state's interest in reducing

(continued...)

5

On July 17, 2000, the First Circuit affirmed in

substantial part. Pet. App. la-45a. With respect to FCLAA

preemption, the appeals court said that the Regulations

involved legislation in a field "traditionally occupied" by the

States and thus that it would invoke a strong "presumption

against preemption." Jd. at 7a-9a. In interpreting the

FCLAA language it viewed as key -- the preemption of State

laws “with respect to the advertising or promotion of any

cigarettes" (15 U.S.C. § 1334(b) -- the Court said that the

language should not be given a “hyper-literal reading,"

because otherwise the FCLAA would preempt a broad range

of State regulation "which Congress surely did not intend to

affect." Jd. at 10a.

Rather, the court deduced the meaning of § 1334(b) by

turning to the FCLAA's statement of purpose, 15 U.S.C.

§ 1331. The court noted two purposes listed in § 1331: (1)

to inform the public of the health risks associated with

smoking; and (2) to protect the national economy from the

burdens that would result from a multitude of "diverse,

nonuniform, and confusing" advertising standards. Id. The

court determined that the Regulations offended neither of

those purposes and thus were not preempted. It held that

the Regulations were merely "location" restrictions, not an

\ effort to regulate the content of any tobacco advertising. Id.

at 12a-13a. It held that to the extent that the Regulations

contributed to the nonuniformity of tobacco advertising

restrictions nationwide, "such divergent restrictions are

indistinguishable from the existing zoning regulations in

place throughout the country. Jd. at 13a.

“(...continued)

youth smoking. /d. at 82a.

6

With respect to the First Amendment claims, the First

Circuit rejected Petitioners’ argument that -- in light of the

near-total prohibition on truthful tobacco advertising based

solely on its content’ -- heightened review (i.e., review

beyond that required by Central Hudson) was in order. Id.

at 14a-16a. The court cited Greater New Orleans

Broadcasting Ass'n v. United States, 527 U.S. 173 (1999),

for the proposition that heightened review is inappropriate

even when regulations single out the promotional speech of

a particular industry. Jd. at 15a. The court acknowledged

“rumblings from members of the Supreme Court and others

suggesting that the Central Hudson test may be in need of

minor or major modification”; but it felt “bound to apply

the Central Hudson test, as is, to this case,” because it was

not the court's role “to anticipate changes in well-established

constitutional doctrines.” Jd. at 16a.

The court then determined that the Regulations passed

muster under the Central Hudson test. Pet. App. 17a-35a.

Because the court was reviewing the grant of summary judg-

ment for Massachusetts, it assumed that the speech at issue

was truthful, nonmisleading speech about a lawful activity.

The court determined that Massachusetts had a substantial

interest in preventing children from smoking (id. at 18a),

that the Regulations “directly advance” that interest by

reducing underage smoking to a material degree (id. at 19a-

29a), and that the Regulations do not restrict more speech

° The appeals court rejected out of hand Massachusetts's

suggestion that the Regulations did not amount to content-based speech

restriction. /d. at 14a.

7

than is necessary to achieve the State’s purpose. Jd. at 29a-

35a.°

REASONS FOR GRANTING THE PETITION

The short-comings of the Central Hudson test could not

be more starkly illustrated than they are in this case.

Applying that test in an apparently good-faith manner, the

First Circuit upheld a virtually total ban on outdoor tobacco

advertising in the Commonwealth of Massachusetts. The

ban was upheld even though: (1) the speech at issue was

wholly truthful and non-misleading and concerned a lawful

product; (2) there was no evidence that the speech was

directed at minors; (3) the court of appeals conceded that the

ban was content-based -- the only type of speech prohibited

is speech that promotes the use or sale of tobacco products;

(4) the evidence was equivocal at best regarding whether the

Regulations would reduce underage smoking to a material

degree; and (5) other methods that do not involve restricting

speech could be used to achieve the State’s purpose.

Any First Amendment test that could even arguably be

applied to uphold sweeping speech restrictions of the type at

issue in this case has little to recommend itself. The Court

has repeatedly recognized that commercial speech -- while

standing somewhat lower in the First Amendment pantheon

* The court reversed the district court’s sole First Amendment

ruling in support of Petitioners -- the district court’s decision to strike

down the prohibition against indoor, point-of-sale tobacco advertising

less than five feet from the floor. See Note 4, supra. In upholding the

prohibition, the appeals court stated that its earlier Central Hudson

analysis was equally applicable and that “the fit between ends and

means” was “very reasonable.” Jd. at 35a-37a.

8

than does political speech -- is still entitled to substantial

constitutional protection. But the Central Hudson test as

applied here provides virtually no First Amendment

protection; as construed by the First Circuit, Central

Hudson has become an elastic concept that requires judicial

deference to virtually any government commercial speech

restriction imposed under the banner of children’s welfare.

WLE respectfully submits that the time has come for the

Court to reconsider the continued usefulness of the Central

Hudson test. WLF submits that any test adopted by the

Court should evaluate the constitutionality of commercial

speech restrictions based on whether they focus on any of

the concerns that have led the Court to distinguish between

commercial and noncommercial speech. Given the

sweeping nature of the speech restrictions upheld in this case

in the name of Central Hudson, this case provides a

particularly appropriate vehicle for the Court to undertake

that reconsideration.

WLEF fully concurs with Petitioners that review should

also be granted on the FCLAA issue. The conflict among

the federal appeals courts regarding whether tobacco

advertising restrictions of the type imposed by the

Regulations are preempted by the FCLAA could not be

more stark. But WLF nonetheless believes that the clear

cert-worthiness of the FCLAA issue should not be permitted

to obscure the importance of the First Amendment issues

raised by this case. Any grant of review in this case should

include both the FCLAA issue and the First Amendment

issue.

EE

I. THE COURT SHOULD CLARIFY THE PROPER

STANDARD TO APPLY IN CHALLENGES TO

BLANKET RESTRICTIONS OF TRUTHFUL,

NONMISLEADING COMMERCIAL SPEECH

A. The Court Should Grant Review to Consider

Whether, in Practice, the Central Hudson Test

Provides Sufficient Protection to Truthful

Commercial Speech

The importance of advertising in our free-market

economy cannot easily be overstated. As the Court has

recognized, commercial messages have played "a central

role in public life" in this country since colonial times. 44

Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 495 (1996)

(plurality opinion). In recognition of that role, the courts

have held that "the First Amendment protect[s] the

dissemination of truthful and nonmisleading commercial

messages about lawful products and services." Id.

Nonetheless, governments generally have been afforded

somewhat more leeway in regulating commercial speech

than other forms of speech. That greater leeway has been

justified in large part by states' strong interest in protecting

consumers from false or misleading information that could

result in fraudulent transactions. Virginia State Board of

Pharmacy v. Virginia Citizens Consumer Council, Inc., 425

U.S. 748, 771-772 & n.24 (1976). States also have an

interest in restricting "some forms of aggressive sales

practices that have the potential to exert ‘undue influence’

over consumers." 44 Liquormart, 517 U.S. at 498

10

(plurality) (citing Bates v. State Bar of Arizona, 433 U.S.

350, 366 (1977)).

But where, as here, the commercial speech at issue is

neither false nor inherently misleading, nor proposes an

illegal transaction, the Court has been extremely reluctant to

permit speech restrictions that amount to a ban on wide-

ranging categories of commercial speech. As the Court

recently observed, "[W]hen a State entirely prohibits the

dissemination of truthful, nonmisleading commercial

messages for reasons unrelated to the preservation of a fair

bargaining process, there is far less reason to depart from

the rigorous review that the First Amendment generally

demands." 44 Liquormart, 517 U.S. at 501 (plurality).

Such "complete speech bans" are "particularly dangerous"

because "they all but foreclose alternative means of

disseminating certain information." Jd. The Court went so

far as to state categorically in one recent case that "only

false, deceptive or misleading commercial speech may be

banned." Ibanez v. Florida Dep't of Bus. and Prof'l

Regulation, 512 U.S. 136, 142 (1994) (emphasis added).

The Regulations do not, of course, completely ban all

cigarette advertising within Massachusetts. A Boston store

wishing to inform the public that it sells a particular brand

of cigarettes is still free to post a sign to that effect

somewhere in the 9% of the city in which cigarette

advertising is permitted, or to take out a newspaper adver-

tisement. But such advertising is not a realistic alternative

for many store owners; a sign posted miles from the store is

unlikely to be read by the store's potential customers, and

the prohibitive ct =* newspaper advertisements places such

advertising out oi z2ach of most individual merchants. The

Court has stated repeatedly that commercial speech restric-

11

tions will be subjected to heightened scrutiny even when

they do not completely prohibit dissemination of truthful

information about a lawful product, if those restrictions fail

to leave open satisfactory alternative channels of

communications. See, e.g., 44 Liquormart, 517 U.S. at

501-02 (plurality) (Rhode Island law prohibiting truthful

advertising of liquor prices subjected to heightened scrutiny,

even though merchants permitted to display in-store signs

listing prices); Linmark Associates, Inc. v. Willingboro, 431

U.S. 85, 92-94 (1977) (ban on "For Sale" signs in front of

residential housing failed to provide satisfactory alternative

means of informing the public that a particular house was

for sale, because "For Sale" signs were the principal means

by which such information was traditionally conveyed).

As the Court has made clear, government bans on

commercial speech are anathema to the First Amendment

when designed not to guard consumers from false or

misleading information, but rather as an indirect means of

regulating conduct. Such bans are premised on the

assumption that the government knows best what is good for

consumers and that they are better off if they are denied

access to certain information, even though it is not in any

way misleading. The Court has labeled such assumptions

"offensive" to First Amendment values:

Precisely because bans against truthful, nonmisleading

commercial speech rarely seek to protect-consumers

from either deception or overreaching, they usually rest

solely on the offensive assumption that the public will

respond “irrationaliy" to the truth. Linmark, 431 U.S.,

at 96. The First Amendment directs us to be especially

skeptical of regulations that seek to keep people in the

dark for what the public perceives to be their own

12

good. That teaching applies equally to state attempts to

deprive consumers of accurate information about their

chosen products.

44 Liquormart, 517 U.S. at 503 (plurality); see also id. at

517 (Scalia, J., concurring in part); id. at 526-27 (Thomas,

J., concurring in part); Virginia State Board of Pharmacy,

425 U.S. at 762 ("the general rule is that the speaker and

the audience, not the government, assess the value of the

information presented.").

The Regulations could not survive the strict First

Amendment review that the Court's recent opinions suggest

is required of all laws that impose total or near-total bans on

non-misleading commercial speech. The result of the

Regulations is to deprive consumers of significant amounts

of truthful information. Massachusetts insists, of course,

that its purpose is to keep this information away from

minors, who are prohibited by law from purchasing

cigarettes. But the Court has rejected broad commercial

speech bans even when their ostensible purpose was to

protect children from the speech, noting that under the First

Amendment the "government may not reduce the adult

population . . . to reading only what is fit for children."

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 73-74

(1983).

The First Circuit nonetheless rejected Petitioners’ First

Amendment challenge to the regulations, invoking the

Central Hudson test. That result suggests the existence of

considerably tension between Central Hudson and more

recent decisions of the Court. Indeed, that tension was

acknowledged in Greater New Orleans (527 U.S. at 184)

and by several of the opinions in 44 Liquormart. See, e.g.,

13

44 Liquormart, 517 U.S. at 526-28 (Thomas, J., concurring

in part). WLF respectfully suggests that this case provides

an appropriate vehicle for reconsidering the Central Hudson

test.

The essential shortcoming of Central Hudson is that it

really is no test at all. It permits content-based government

regulation of commercial speech where the government has

a substantial interest that is directly served by the regulation

and where the regulation is no more extensive than

necessary to achieve the substantial interest. As applied to

speech which the government wishes to keep away from

children, Central Hudson can be construed (as did the First

Circuit) as imposing no constitutional limits whatsoever.

Under the First Circuit's view, any amount of speech about

activities inappropriate for children could induce some

amount of that activity among children. Because it is

virtually impossible to ensure that no children will be

exposed to such speech, the effect of the First Circuit's

interpretation of Central Hudson is to eliminate ail First

Amendment controls over even blanket bans on truthful

speech about adult-only activities. Indeed, that is precisely

the situation here; despite Massachusetts's insistence that the

Regulations are (in some unfathomable way) “carefully

tailored" in a manner designed to protect children, the

Regulations effectively ban all outdoor advertising of

tobacco products.

WLEF respectfully suggests that-the Court grant review

in order to modify the Central Hudson test and to clarify

that blanket bans on truthful, nonmisleading commercial

speech are subject to strict First Amendment scrutiny. Such

strict scrutiny would be applied whenever, as here, the

purposes underlying the more-relaxed standard of review

14

often applied to commercial speech (principally, a desire to

preserve a fair bargaining process by ensuring that

consumers are not misled by inflated sales pitches, 44

Liquormart, 517 U.S. at 501 (plurality opinion)) are not

implicated by the regulation in question.

Review for the purpose of reconsidering the Central

Hudson test would be highly appropriate not only because of

the sweeping nature of the ban on truthful speech in this

case but also because the issue was fully briefed and ruled

upon by the courts below.

B. The Court Should Grant Review in Order to

Correct the First Circuit's Misapplication of

Central Hudson

The Court should grant review on the First Amendment

issue for the additional reason that the First Circuit's

decision is inconsistent with Central Hudson. The

Regulations could not survive scrutiny under the third and

fourth prongs of the Central Hudson standard.

Under the third and fourth prongs of the Central

Hudson test, commercial speech that is not false, deceptive,

or misleading may be restricted, but only if the government

shows that the restriction “directly and materially advances

a substantial state interest,” and that the restriction advances

that interest “in a manner no more extensive than necessary

to serve that interest.” Ibanez, 512 U.S. at 142. See also

Rubin v. Coors Brewing Co., 514 U.S. 476, 482 (1995)

(quoting Central Hudson, 447 1.8. at 562).

The third prong (“directly advances”) requires the

government to prove that its restriction “will in fact”

15

produce the desired result. A governmental body seeking to

sustain a restriction on commercial speech “must

demonstrate that the harms it recites are real and that a

restriction will in fact alleviate them to a material degree.”

Edenfield v. Fane, 507 U.S. 761, 771-(1993). “The

regulation may not be sustained if it provides only

ineffective or remote support for the government’s

purpose.” Id.

The fourth prong (“no more extensive than necessary”)

requires the government to demonstrate that the restriction

is “sufficiently tailored to its goal.” Coors, 514 U.S. at

491-492. A restriction on commercial free speech is not

“sufficiently tailored to its goal” if there exist other means

by which the government could pursue its objectives “in a

manner less intrusive to First Amendment rights.” Jd. at

491. See also City of Cincinnati v. Discovery Network,

Inc. , 507 U.S. 410, 417 n.13 (1993).

The Court has stated time and again that the government

bears the burden of justifying its commercial speech

restrictions. See e.g. Coors, 514 U.S. at 487-88; Ibanez,

512 U.S. at 143. The Court has stressed that the

govemmment’s burden under the Central Hudson test “is not

satisfied by mere speculation and conjecture.” Edenjield,

507 U.S. at 770.’

’ This case cannot be distinguished from other challenges to

commercial speech regulations on the ground that the product being

advertised is alleged to constitute a vice. The Court in 44 Liquormart

expressly rejected the notion that a "vice" exception exists for First

Amendment protection of commercial speech. Justice Stevens explained,

"[A] vice label that is unaccompanied by a corresponding prohibition

against the commercial behavior at issue fails to provide a principled

(continued...)

16

The First Circuit appears to have misapplied the third

and fourth prongs of the Central Hudson test in concluding

that Massachusetts, as a matter of law, had met its burden

of persuasion with respect to those issues. With regard to

the third prong, it is highly question whether the State can

“demonstrate” that its advertising ban “will in fact” serve its

asserted objective of promoting the enforcement of state law

against selling tobacco to minors “directly and materially.”

To the contrary, Massachusetts’s claim that banning tobacco

advertising would decrease unlawful sales to minors is based

entirely on “mere speculation and conjecture.” No reliable,

objective evidence exists to support the claim.*®

With regard to the fourth prong, there is considerable

evidence that the Regulations are not “sufficiently tailored

to its goal” because other means exist by which Massa-

chusetts could pursue its goal “in a manner less intrusive to

First Amendment rights.” Instead of banning tobacco

advertising in order to prevent unlawful sales of tobacco to

7(...continued)

justification for the regulation of commercial speech about that activity."

44 Liquormart, 517 U.S. at 514 (plurality); see also, Rubin v. Coors,

514 U.S. at 482 n.2. Thus, the district court's conclusion that tobacco

sales are akin to the sale of pornography (Pet. App. 61a-62a) cannot

justify relaxing First Amendment constraints on state regulation of

tobacco advertising.

* In 44 Liquormart, the Court was willing to accept the "common

sense" notions that eliminating price advertising would lead to somewhat

higher prices and consequent decreased demand for liquor. But the

Court rejected the argument that, in the absence of other evidentiary

support, such common sense notions were sufficient for a State to carry

its burden of demonstrating that a price advertising ban would

“significantly advance" the State's interest in decreased liquor

consumption. 44 Liquormart, 517 U.S. at 505 (plurality).

17

minors -- which has the effect of preventing the entire adult

population from reading such advertising and of prohibiting

merchants from effectively marketing their products -- the

State could increase efforts to enforce the laws prohibiting

tobacco sales to minors. Indeed, the First Circuit admitted

the existence of such options but nonetheless said that

Massachusetts should be permitted to ban speech as an

alternative to adopting other options. Pet. App. 32a-33a.

Numerous State and local governments have, like

Massachusetts, adopted virtual bans on truthful outdoor

tobacco advertising. Review is warranted on the First

Amendment issue in order to correct the error below and to

provide guidance to courts considering challenges to other

such statutes.

Il. THE COURT SHOULD RESOLVE THE

IRRECONCILABLE CONFLICT AMONG THE

FEDERAL APPEALS COURT REGARDING THE

SCOPE OF FCLAA PREEMPTION

Little need be said, beyond what was already said in the

Petition, regarding the urgent need for the Court to resolve

the irreconcilable among the federal appellate courts

regarding the scope of FCLAA preemption.

The Ninth Circuit has held that the FCLAA preempts

State and local government advertising regulations of

precisely the sort at issue in this case. Lindsey v. Tacoma-

Pierce County Health Dep't, 195 F.3d 1065 (9th Cir. 1999),

amended, 205 F.3d 1150 (9th Cir. 2000).° Three other

» The municipal defendant in Lindsey did not seek Supreme Court

(continued...)

18

federal appeals courts (besides the court below) have arrived

at precisely the opposite conclusion. Greater New York

Metropolitan Food Council, Inc. v. Giuliani, 195 F.3d 100

(2d Cir. 1999), cert. denied, 120 S. Ct. 1671 (2000);

Federation of Advertising Industry Representatives, Inc. v.

Chicago, 189 F.3d 633 (7th Cir. 1999), cert. denied, 120 S.

Ct. 1671 (2000); Penn Advertising of Baltimore, Inc. v.

Mayor & City Council, 63 F.3d 1318 (4th Cir. 1995),

vacated and remanded on other grounds, 518 U.S. 1030

(1996), adopted as modified, 101 F.3d 332 (4th Cir. 1996),

cert. denied, 520 U.S. 1204 (1997). Indeed, the First

Circuit expressly noted the direct conflict among those four

decisions. Pet. App. 9a-13a. The First Circuit adopted the

reasoning of the Second and Seventh Circuits and stated

explicitly that it disagreed with the Ninth Circuit's holding.

Id. at 13a n.7.

The need to resolve an inter-circuit split is particularly

acute in this case in light of the large number of tobacco

advertising prohibitions being adopted (and subsequently

challenged) throughout the country. /d. at 128a-134a

(listing 20 such laws). Moreover, for so long as it remains

true that citizens in the nine states comprising the Ninth

Circuit have greater rights to engage in truthful commercial

speech than do citizens living within the First, Second,

Fourth, and Seventh Circuits, the essential purpose of the

FCLAA -- to protect the national economy from the burdens

that would result from a multitude of "diverse, nonuniform,

and confusing" advertising standards -- will be frustrated.

15 U.S.C. § 1331.

*(...continued)

review of the Ninth Circuit's decision. Thus, the Court does not have

the option of granting review in that case instead of in this one.

19

CONCLUSION

The Washington Legal Foundation respectfully requests

that the Court grant the petition for a writ of certiorari with

respect to both of the Questions Presented.

Respectfully submitted,

Daniel J. Popeo

Richard A. Samp

(Counsel of Record)

Washington Legal Foundation

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

Dated: November 16, 2000