Amicus Curiae Brief — Lorillard Tobacco Co. v. Reilly

FEB 22 Qe} Supreme Come

Nos. 00-596, 00-597 re

ur Uoy Fea 2 Baal

IN THE

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Supreme Court of the Urited States |

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LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO

CORPORATION; R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS

INCORPORATED; and UNITED STATES TOBACCO COMPANY,

—and—

ALTADIS U.S.A. INC., AS SUCCESSOR TO CONSOLIDATED CIGAR

CORPORATION AND HAVATAMPA, INC.; GENERAL CIGAR CoO., INC.;

JOHN MIDDLETON, INC.; LANE LIMITED, AS SUCCESSOR TO TOBACCO

EXPORTERS INTERNATIONAL (USA) LTD.; L.J. PERETTI Co., INC.;

SWEDISH MATCH NORTH AMERICA, INC.; and SWISHER

INTERNATIONAL, INC., se

Petitioners,

—_—V—

THOMAS F. REILLY, ATTORNEY GENERAL OF MASSACHUSETTS,

, Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF AMICI CURIAE OF INFINITY OUTDOOR, INC. AND

VISTA MEDIA GROUP, INC. IN SUPPORT OF PETITIONERS

FLOYD ABRAMS*

JOEL KURTZBERG

CAHILL GORDON & REINDEL

80 Pine Street

New York, New York 10005

(212) 701-3000

Counsel for Amici Curiae,

Infinity Outdoor, Inc. and

Vista Media Group, Inc.

* Counsel of Record

yA \ 3

TABLE OF CONTENTS

py) OR ge oe iss of fay.) Serr re

STATEMENT OF INTEREST OF

PI CUE is k Ci Aavbaintinasbucshadapade

PPT SNA AGAR Ril 65 hbase (aseakaue cashhdinans

I. -THIS COURT SHOULD TREAT

TRUTHFUL, NONMISLEADING

COMMERCIAL SPEECH THE SAME

AS NONCOMMERCIAL SPEECH..........

A. The Rationales for Affording

Commercial Speech Less Protection

than Other Forms of Speech Are

Constitutionally Insupportable .........

1. The Rationales for Providing

Commercial Speech Generally

with Limited First Amendment

PE 4s ss Nk cw weks noses ckssanen

2. Central Hudson and the Expansion,

Without Any Stated Rationale, of

Limited Protection to Truthful

and Nonmisleading Commercial

li

PAGE

3. The Rationales for Limited

Protection of Commercial Speech

Have Been Discredited as Both

Inaccurate and Irrelevant .......... 9

B. Content-Based Restrictions on

Truthful, Nonmisleading Commercial

Speech Implicate the Same Concerns

as Content-Based Restrictions on

Noncommercial SPOech............05s605 11

C. Central Hudson Has Proven to Be an

Unworkable Standard that Fails to

Provide the Type of Consistency and

Predictability that the First Amendment

MUON oa 65 ic cach Evra rab ane eerees 16

ste hk. nm Np re verre er Ys 22

ili

TABLE OF AUTHORITIES

Cases: i PAGE

Bad Frog Brewery, Inc. v. New York State Liquor

Authority, 134 F.3d 87 (2d Cir. 1998)....... 19

Bolger v. Youngs Drug Products Corp.,

463 U.S. 60 (1983) .......-- eee eee eee eee eee 19n

Carey v. Population Services International,

431 U.S. 678 (1977) .......- eee ee eee eeceecee 15

Central Hudson Gas & Electric Corp. v. Public

Service Commission, 447 U.S. 557 (1980)..passim

Citizens United for Free Speech II v. Long

Beach Township Board of Commissioners,

802 F. Supp. 1223 (D.N.J. 1992).......--++- 16n

City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) .....---- eee ee ee eee 8, 18, 19n

Consolidated Cigar Corp. v. Reilly, 218 F.3d 30

(1st Cir. 2000) .........-.- ee eee eee eee e eee: 15

Edenfield v. Fane, 507 U.S. 761 (1993)...... 7,18, 19n

Florida Bar v. Went For It, Inc., 515 U.S. 618

PRIDE) on cc sn tcc nce tnnscnnsnscesivnccececncns 19n

44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996)........-. ee eee eee 7-9, 11, 12,

14-18, 19n, 21

Greater New Orleans Broadcasting

Ass’n v. United States, 527 U.S.

173 (1999) ....... eee ee eee cece eeceee 16, 19, 19n, 21

iV

PAGE

Hornell Brewing Co. v. Brady, 819 F. Supp. 1227

oR ORE kj Ren athe ee Ni aan raye l6n .

Ibanez v. Florida Department of Business.

and Professional Regulation, 512 U.S. 136

REE akc Mba pe Gaede eae 19n

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495

PUD Sus und vavcw dese eKn veeewuybus ceeeenenie 10

Kansas v. United States, 16 F.3d 436

CEs Sa: SEE chcvccens canauenenaruea chen 20

Linmark Assocs. v. Township of Willingboro,

SE MP OE ROOTED Ha 4s4 puke sikedareedesansas 15

MD II Entertainment, Inc. v. City of Dallas,

be P26 Se COR CM, EPPS) i sicccvavas cicadas 16n

Metromedia, Inc. v. San Diego, 453 U.S. 490

2 2) Reet er nr herein eis termrs rae 18n-19n

Nordyke v. Santa Clara County, 110 F.3d 707

SE Ts STIG s 8 eek ae pekinese 19, 20

Peel v. Attorney Registration & Disciplinary

Commission, ig Be Me eee 19n

Penn Advertising, Inc. v. Mayor and City Council,

63 F.3d 1318 (4th Cir. 1994), vacated on

other grounds, 518 U.S. 1030, readopted

on remand, 101 F.3d 332 (4th Cir. 1996),

cert. denied, 520 U.S. 1204 (1997) ......... 19-20

Police Department v. Mosley, 408 U.S.92 |

SOE E sad va dvns coh kines Vekh awed vad eaaeens 12

PAGE

Posadas de Puerto Rico Associates v.

Tourism Co. of Puerto Rico, 478 U.S.

BAe CNOUE céxs Geke tude ck csednd ne eee 17-18, 19n

R.A.V. v. City of St. Paul, 505 U.S. 377

CRS va cncoacebabincnaeccenvcawenes vances 11-16, 16n

In we RIGS... GOS US. TBE CAPGES i vos ciscckenst 19n

Rubin v. Coors Brewing Company,

FCB Ry 23: 3) emer rrr re 8, 19n, 21

San Francisco Arts & Athletics, Inc. v. United

States Olympic Committee, 483 U.S. 522

Bi 5) CR tan Dee ads gate rye eire'g cereronmy ey Te" 19n

Shapero v. Kentucky Bar Ass’n, 486 U.S. 466

PRUNE cid nhac suduncsceecuseceeeeliereen eet 19n

Texas v. Johnson, 491 U.S. 397 (1989) .......... 12

United States v. Edge Broadcasting Co. T/A,

Se EIS, GAS Crh hvt ier esses 18, 19n

Village of Hoffman Estates v. Flipside Hoffman

Estates, Inc., 455 U.S. 489 (1982) .......... 19n

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc.,

BZ RES, FAS CSTD ons sien’ Kenmn dhn eee 4-7, 14

Zauderer v. Office of Disciplinary Counsel,

Shee ee Fe. ere ere re 19n

_ Constitutional Provisions:

€7.B. Comme, I Bs vii aces chek saa nie tieeces passim

V1

PAGE

Law Reviews:

David P. Kasakove, New York State Ass’n

of Realtors, Inc. v. Shaffer: When the

Second Circuit Chooses Between Free

Speech and Fair Housing, Who Wins?,

61 Brooklyn L. Rev. 397 (1995) ............ 17

Alex Kozinski & Stuart Banner, Who’s

Afraid of Commercial Speech?,

Pe We dee BY. GET CEDPO) oo ne cic nevsss 9-10, 17, 24

Kathleen M. Sullivan, Cheap Spirits, Cigarettes

& Free Speech: The Implications of

44 Liquormart, 1996 Sup. Ct. Rev. 123

EE eG lle 48s buen ese bio KAREN we oe 21

R. George Wright, Freedom and Culture:

Why We Should Not Buy Commercial

Speech, 72 Denver U. L. Rev. 137

ok G od as vanN ke KER en ee teEben 17, 20-21

STATEMENT OF INTEREST OF AMICI CURIAE

This brief is submitted on behalf of Infinity Outdoor,

Inc. (“Infinity”) and Vista Media Group, Inc. (“Vista’’),

two of the nation’s leading outdoor advertising compa-

nies.! Infinity, formerly known as Outdoor Systems, Inc.,

since its 1999 merger with Infinity Broadcasting Cor-

poration, has been part of the world’s largest outdoor

advertising company and operates in 90 metropolitan

markets in the United States. Vista is a leading outdoor

advertising company operating predominantly in New

York City and Los Angeles, which, as a minority-run

business, specializes in serving the advertising needs of

minority communities. Both Infinty and Vista, as pri-

mary participants in the outdoor advertising industry,

believe in the importance of a strong First Amendment

and of strong protections for commercial speech.

As leaders in the outdoor advertising industry, amici

are interested in and deeply concerned about the poten-

tial for any ruling that might permit an effectively com-

plete ban on outdoor advertising for an entire category

of legal products. Amici are particularly interested in this

case because it calls into question the very standard

by which commercial speech restrictions should be

reviewed by this Court. Amici submit this brief to urge

this Court to determine that full First Amendment pro-

tection should be accorded to truthful, nonmisleading

speech—regardless of its status as commercial or non-

commercial.

, No counsel for any party to this case authoredrthis brief in

whole or in part, and no person or entity other than amici and their

counsel made any monetary contribution to its preparation and sub-

mission. In addition, the parties have consented to the filing of this

brief, and their letters of consent are on file with the Clerk of the

Court.

Vv

ee 2

Commercial speech, like political speech, contributes

to the “marketplace of ideas,” and not solely the market

for goods. The flow of information about products—pro-

vided that information is truthful, and is not misleading

to the public—should be unimpeded, in the interest of

enabling citizens to make fully informed choices about

both the products they wish to purchase and the broader

social issues that frequently surround those products.

When government restricts the information available to

the people, under the guise of advancing particular

social policies, it threatens the very core of this coun-

try’s regard for the freedom of speech.

Amici urge the Court to abandon the unworkable and

outdated test laid out in Central Hudson Gas & Electric

Corp. v. Public Service Commission, 447 U.S. 557

(1980), in cases where truthful, nonmisleading speech is

at issue. In its place, in accord with the increasingly pro-

tective trend in the Court’s recent commercial speech

jurisprudence, the Court should expressly recognize that,

except in circumstances when the state seeks to protect

consumers from distinctly “commercial harms,” there is

no justification for treating speech differently simply

because of its nature as advertising. Restrictions on such

speech should be subject to strict scrutiny, as are restric-

tions on all other forms of protected speech.

‘

SUMMARY OF ARGUMENT

In the twenty-one years since this Court first sought to

set forth standards for determining when commercial

speech should be deemed protected under the First

Amendment, this Court has been repeatedly put to the

painful task of determining how to apply those stan-

dards—and whether, in fact, the standards should con-

tinue to be used. This is the nineteenth case relating to

commercial speech to be heard by the Court since it

3

issued its 1980 ruling in Central Hudson, a devotion of

judicial resources that far outstrips that involving any

other First Amendment issue—and, quite possibly, any

other specific issue relating to the Bill of Rights.

In this brief amici curiae, we urge the Court to aban-

don the commercial speech test set forth in Central Hud-

son as ill-conceived, inconsistent with First Amendment

theory and impossible to enforce on a consistent basis.

We urge the Court instead to treat truthful, nonmis-

leading commercial speech the same as noncommercial

speech—and to apply strict scrutiny to content-based,

paternalistic regulations designed to protect the public

from the perceived deleterious effects of such speech. In

doing so, we rely heavily on opinions of at least five

members of this Court, who have themselves expressed

dissatisfaction with Central Hudson.

We submit that the rationales for affording commercial

speech less protection than other forms of speech have

been discredited, and, in any event, are wholly inappli-

cable to truthful and nonmisleading commercial speech.

We also maintain that content-based restrictions on

truthful, nonmisleading commercial speech implicate the

same powerful First Amendment principles as content-

based restrictions on noncommercial speech. Finally, we

argue that Central Hudson has proven to be an unwork-

able standard that fails to provide the kind of pre-

dictability and consistency that the First Amendment

demands. Accordingly, in cases where it is undisputed

that the commercial speech at issue is truthful and non-

misleading, Central Hudson should be abandoned and

Strict scrutiny applied.

4

ARGUMENT

I. THIS COURT SHOULD TREAT TRUTHFUL,

NONMISLEADING COMMERCIAL SPEECH

THE SAME AS NONCOMMERCIAL SPEECH

A. The Rationales for Affording Commercial

Speech Less Protection than Other Forms of

Speech Are Constitutionally Insupportable

1. The Rationales for Providing Commercial

Speech Generally with Limited First

Amendment Protection

Since this Court first held that commercial speech is

protected under the First Amendment in Virginia State

Board of Pharmacy v. Virginia Citizens Consumer Coun-

cil, Inc., 425 U.S. 748 (1976), it has struggled with the

question of just how much protection truthful, nonmis-

leading commercial speech should be afforded. In Vir-

ginia State Board of Pharmacy, a case striking down a

Virginia statute making it illegal to advertise prescrip-

tion drug prices, the Court made clear that commercial

speech was entitled to significant First Amendment pro-

tection, subject to certain “common sense differences”

between commercial and noncommercial speech that

“suggest that a different degree of protection is neces-

sary” between the two. /d. at 771 n. 24.

The Court identified two “common sense differences.”

The first was that the truth of commercial speech was

more easily verifiable than that of noncommercial

speech. The second was that commercial speech was, by

its nature, more “durable” and less likely to be chilled

than noncommercial speech by regulation. See id. The

Court concluded that these differences made differential

treatment between commercial and noncommercial

5

speech necessary in order “to insure that the flow of

truthful and legitimate commercial information is unim-

paired.” Jd.

From the outset, then, the goal of differential treat-

ment between commercial and noncommercial speech

was to facilitate truthful and nonmisleading commercial

speech without hampering governmental efforts to limit

untruthful or misleading commercial speech. Accord-

ingly, the Court in Virginia State Board of Pharmacy

both emphasized the “indispensable” nature of the free

flow of truthful commercial speech and the fact that,

under its holding, various commercial speech regulations

designed to protect consumers from coercion or decep-

tion would still be permissible—e.g., prohibitions

against false or misleading speech; bans on advertising

for illegal products; and appropriate warning or dis-

claimer requirements. Jd. at 765, 770-72. What was not

permissible under the First Amendment, the Court

emphasized, were paternalistic government regulations

aimed at protecting the public from the perceived dan-

gers of their exposure to truthful commercial speech.

The Court thus concluded that:

“[O]n close inspection it is seen that the State’s pro-

tectiveness of its citizens [i.e., by prohibiting phar-

macists from advertising drug prices] rests in large

measure on the advantages of their being kept in

ignorance. . . . There is, of course, an alternative

to this highly paternalistic approach. That alterna-

tive is to assume that this information is not in itself

harmful, that people will perceive their own best

interests if only they are well enough informed, and

that the best means to that end is to open the

channels of communications rather than to close

them. . . . [T]he choice among these alternative

approaches is not ours to make or the Virginia

6

Assembly’s. It is precisely the kind of choice,

between the dangers of suppressing information,

and the dangers of its misuse if it is freely available,

that the First Amendment makes for us.”

Id. at 769-70.

2. Central Hudson and the Expansion,

Without Any Stated Rationale, of Lim-

ited Protection to Truthful and Nonmis-

leading Commercial Speech

Four years later, in Central Hudson Gas & Electric

Corp. v. Public Service Commission, 447 U.S. 557

(1980), the Court articulated a four-part test that sought

to take into account the so-called “common sense dif-

ferences” between commercial and noncommercial

speech:cited in Virginia State Board of Pharmacy. Com-

mercial speech, the Court held, is protected by the First

Amendment, as long as the speech in question (1) con-

cerns lawful activity and is not misleading; if those cri-

teria are met, the government may regulate the speech

only if it can show (2) that its asserted interest in regu-

lation is substantial, (3) that the regulation at issue

directly advances that interest, and (4) that the restric-

tion is “not more extensive than is necessary. . . .”

Central Hudson, 447 U.S. at 566.

In a concurring opinion, Justices Blackmun and Bren-

nan took issue with the new test, arguing that although

permissible restraints on commercial speech had, until

Central Hudson, “been limited to measures designed to

protect consumers from fraudulent, misleading, or coer-

cive sales techniques,” Central Hudson’s four-prong test

opened the door to government imposition of the very

paternalistic regulations of truthful commercial speech

that Virginia State Board of Pharmacy had condemned—

“covert attempt([s] by the State to manipulate the choices

7

of its citizens, not by persuasion or direct regulation, but

by depriving the public of the information needed to

make a free choice.” Central Hudson, 447 U.S. at 574-

75 (Blackmun, J., concurring in the judgment). In fash-

ioning a test that left open the possibility that such

paternalistic regulations might in some instances be

deemed proper, the Court held for the first time, not only

that commercial speech was entitled to less than full

First Amendment protection, but that truthful, nonmis-

leading commercial speech was as well.

In doing so, the Court provided no rationale in Central

Hudson for extending watered-down First Amendment

protection to truthful, nonmisleading commercial

speech, relying instead on the “common sense differ-

ences” between commercial and noncommercial speech

cited in Virginia State Board of Pharmacy to justify dif-

ferential treatment of commercial speech generally. See

Central Hudson, 447 U.S. at 566. Since the Court

decided Central Hudson, it has offered little explanation

as to why less than full protection for commercial speech

should be afforded beyond passing references to those

“common sense differences.”

Additional rationales—to the extent they exist at all—

must be teased out of the case law, and all focus on the

State’s interest in regulating commercial transactions in

order to address consumer protection-type concerns,

such as full disclosure and fair dealing. For example, in

Edenfield v. Fane, 507 U.S. 761, 767 (1993), the Court

noted that, because commercial speech is linked to the

transactions it proposes, “the State’s interest in regu-

lating the underlying transaction may give it a con-

comitant interest in the expression itself.” See also 44

Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 499

(1996) (plurality) (“[T]he State’s power to regulate com-

mercial transactions justifies its concomitant power to

regulate commercial speech that is ‘linked inextricably’

to those transactions.”’) (plurality opinion). Likewise, in

City of Cincinnati v. Discovery Network, Inc., 507 U.S.

410 (1993), the Court cited the State’s “interest in pre-

venting commercial harms” as the “typical reason” why

commercial speech can be subjected to greater govern-

mental regulation than noncommercial speech. Jd. at 426.

See also Rubin v. Coors Brewing Co., 514 U.S. 476, 494

(1995) (citing “commercial speech’s potential to mis-

lead” as the reason for limiting protection of commercial

speech generally) (Stevens, J., concurring in the judg-

ment). As these opinions suggest, there is little, if any

basis, for limiting First Amendment protection for com-

mercial speech absent the need to prevent the commer-

cial harms associated with false or misleading speech.

Yet to date, this Court has never clarified its rationale

for failing to provide truthful, nonmisleading commer-

cial speech with full First Amendment protection (as

opposed to commercial speech generally). Given that the

rationale for commercial speech’s lesser-protected sta-

tus lies in the government’s interest in enforcing con-

sumer protection-type laws, it is not surprising that both

members of this Court and legal scholars have increas-

ingly asserted that, in cases where it is undisputed that

the commercial speech at issue is true and nonmislead-

ing, there is no legitimate rationale for limiting First

Amendment protection. See, e.g., Rubin, 514 U.S. at 494

(citing “commercial speech’s potential to mislead” as

basis for limiting protection of commercial speech)

(Stevens, J., concurring in the judgment); 44 Liguormart,

517 U.S. at 522-23 (Thomas, J., concurring in part and

concurring in the judgment) (“Nor do I believe that the

only explanations that the Court has ever advanced for

treating ‘commercial’ speech differently from other

speech can justify restricting ‘commercial’ speech in

order to keep information from legal purchasers so as to

9

thwart what would otherwise be their choices in the mar-

ketplace.”); Alex Kozinski & Stuart Banner, Who's

Afraid of Commercial Speech?, 76 Va. L. Rev. 627, 634-

50 (1990) (questioning basis for general distinction

between commercial and noncommercial speech and

calling for an abandonment of that distinction). If there

is a legitimate rationale for regulating truthful, non-

misleading speech more so than noncommercial speech,

it has yet to have been articulated.

3. The Rationales for Limited Protection of

Commercial Speech Have Been Discred-

ited as Both Inaccurate and Irrelevant

Any “common sense” rationale for limiting protection

for commercial speech generally has been thoroughly

discredited as both inaccurate and irrelevant by a lead-

ing article on this subject. See Kozinski & Banner, 76

Va. L. Rev. at 637-38 (“[T]he Supreme Court’s only two

proffered justifications for affording commercial speech

a lower level of protection, that it is more objective and

more durable than noncommercial speech, really provide

no support for treating it differently than noncommercial

speech.”). For example, the Court’s first “common sense

distinction” between commercial and noncommercial

speech generally—namely, that it is easier to ascertain

the truth of commercial speech—is simply untrue.

Although in some cases, commercial speech makes fac-

tual assertions that are readily verifiable—e. g., Super-

market X sells rice for $1/pound—the notion that

commercial speech is inherently more “objective” than

other forms of speech fails to take into account the real-

ities of modern-day advertising. Consider a billboard ad

that merely exclaims, “Coke is it!” The truth of that

much trumpeted claim is not objectively verifiable at all.

Or consider the television ads aired each year during the

Super Bowl. Many of those ads make no factual asser-

10

tions at all, but rather present thirty-second mini-come-

dies that differ from fully-protected works of fiction

only in length (e.g., Budweiser’s popular “Wassup?”

ads). These mini-shows are no more “true” or “false”

than any other work of fiction. See id. at 635-41.

In any event, the objective verifiability of a type of

speech seems wholly irrelevant to the question of

whether or not it should be entitled to full First Amend-

ment protection. Speech about scientific matters is fully

protected even though it is probably the paradigmatic

type of verifiable speech. Any suggestion that the veri-

fiability of scientific speech should make it subject to

lesser First Amendment protections is wholly insup-

portable. Jd. at 634.

The Court’s second “common sense” rationale for giv-

ing commercial speech limited protection—that com-

mercial speech is more durable than other types of

speech because it is engaged in for profit—is equally

problematic. For starters, it too is not necessarily true.

As Kozinski and Banner point out, non-financial inter-

ests, such as religious convictions and artistic passions,

can be just as strong, if not stronger, than financial ones.

Id. at 637. Moreover, this Court has repeatedly held that

the fact that protected speech is engaged in for profit

does not strip it of its fully protected status. See, e.g.,

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952)

(“That books, newspapers and magazines. . . are sold

for profit does not prevent them from being a form of

expression whose liberty is safeguarded by the First

Amendment.’’).

In any event, even if commercial speech were more

durable than other forms of speech, that would still not

be a valid reason for stripping it of full First Amendment

protection. The fact that a type of speech can thrive even

after considerable regulation does not mean that it

1]

should—or constitutionally may—be so regulated. In the

end, the durability rationale—like that relating to veri-

fiability—fails to provide justification for the lesser pro-

tection afforded commercial speech generally.

Even if the rationales provided by the Court for dis-

tinguishing between commercial and noncommercial

speech generally were valid, neither provides any basis

for permitting government to regulate truthful, non-

misleading commercial speech more strictly than

noncommercial speech. This is especially so in circum-

stances where the purpose of the regulation is to keep

the public unenlightened and to manipulate people’s

choices in the commercial marketplace for their own

supposed benefit. See 44 Liquormart, 517 U.S. at 523

n.4 (Thomas, J., concurring in part and concurring in the

judgment). Nor is there any legitimate justification for

this kind of paternalism, which is so directly at odds

with the interests of the First Amendment.

As the stated rationales for limited protection have

been discredited, and in any event, clearly do not apply

to truthful, nonmisleading commercial speech concern-

ing legal products, the Court should apply strict scrutiny

to regulations, like the one at issue in this case, that deal

only with such speech and that do not implicate con-

sumer protection concerns.

B. Content-Based Restrictions on Truthful,

Nonmisleading Commercial Speech Impli-

cate the Same Concerns as Content-Based

Restrictions on Noncommercial Speech

In the noncommercial context, this Court has con-

demned content-based speech restrictions as “presump-

tively invalid” because they are antithetical to the core

interests underlying the First Amendment. R.A.V. v. City

of St. Paul, 505 U.S. 377, 382 (1992). “If there is a

12

bedrock principle underlying the First Amendment, it is

that the Government may not prohibit the expression of

an idea simply because society finds the idea itself

offensive or disagreeable.” Texas v. Johnson, 491 U.S.

397, 414 (1989); see also Police Department v. Mosley,

408 U.S. 92, 95-96 (1972) (“To permit the continued

building of our politics and culture, and to assure self-

fulfillment for each individual, our people are guaran-

teed the right to express any thought, free from

government censorship. The essence of this forbidden

censorship is content control.”). These principles, which

justify the application of strict scrutiny in the context of

noncommercial speech, apply equally in the context of

truthful, nonmisleading commercial speech.

As the Court has noted, in the commercial speech con-

text content discrimination not only impedes discussion

concerning the various merits of products and services

but also inhibits “debate over central issues of public

policy” by limiting the public’s knowledge of important

facts relevant to such debate. 44 Liquormart, 517 U.S. at

502 (plurality opinion). For example, a near-total ban on

cigarette advertising, such as the one at issue in this

case, could prevent the public from learning about new

types of cigarettes that are specially designed to reduce

the risks of getting cancer from smoking—a fact that, in

turn, would plainly be relevant to those members of the

public trying to decide whether or not (or to what extent)

cigarette companies should be regulated by the federal

government.

This Court-has already acknowledged that content dis-

crimination is no less harmful simply because the

restricted speech falls into a category that traditionally

receives less than full First Amendment protection. In

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Court

struck down as facially invalid a city ordinance which

13

made it a misdemeanor to “ ‘place[ ] on public or private

property’ ” any object or symbol which a person knew or

had reason to know would “ ‘arouse[ ] anger, alarm or

resentment in others on the basis of race, color, creed,

religion or gender. . . .’” Jd. at 380. Although the

Court acknowledged that the ordinance only prohibited

expression which fell within the traditionally unpro-

tected category of “fighting words,” id. at 381, it still

struck the ordinance down, reasoning that even tradi-

tionally unprotected “fighting words” could not be selec-

tively silenced on the basis of the underlying message

expressed. Jd. at 391.

The Court’s holding in R.A.V. established that, should

the state wish to regulate only some of a particular kind

of unprotected (or less than fully protected) expression,

it may not distinguish the regulated speech from the

unregulated speech based on aspects of the speech’s con-

tent that have nothing to do with the justifications for

affording it no (or less) protection. Thus, “a State might

choose to prohibit only that obscenity which is the most

patently offensive in its prurience. . . [bJut it may not

prohibit, for example, only that obscenity which includes

offensive political messages.” Jd. at 388.

The Court explicitly stated that this principle applied

to commercial speech regulations aimed at specific con-

tent:

“TA] State may choose to regulate price advertising

in one industry but not in others, because the risk of

fraud (one of the characteristics of commercial

speech that justifies depriving it of full First

Amendment protection) is in its view greater there

. . But a State may not prohibit only that com-

mercial advertising that depicts men in a demeaning

fashion.”

14

Id. at 388-89 (citing, inter alia, Virginia State Board of

Pharmacy, 425 U.S. at 771-72).

Thus, under R.A.V., the lesser protection for com-

mercial speech means that the state is free to regulate

some commercial speech content, but only that content

based on “the characteristics of commercial speech that

justif[y] depriving it of full First Amendment protec-

tion”—such as consumer protection concerns about

ensuring a fair bargaining process. Jd. at 388. It was this

principle that Justice Stevens adverted to in 44 Liquor-

mart when he, along with Justices Kennedy and Gins-

burg, effectively endorsed application of strict scrutiny

to content-based restrictions on the advertising of alco-

hol prices, in a case where those restrictions failed to

implicate consumer protection concerns:

“When a State regulates commercial messages to

protect consumers from misleading, deceptive, or

aggressive sales practices, or requires the disclosure

of beneficial consumer information, the purpose of

its regulation is consistent with the reasons for

according constitutional protection to commercial

speech and therefore justifies less than strict review.

However, when a State entirely prohibits the dis-

semination 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 opinion). In

that same opinion, the 44 Liquormart plurality applied

this same reasoning to conclude that “the State retains

less regulatory authority when its commercial speech

restrictions strike at ‘the substance of the information

communicated’ rather than the ‘commercial aspect of [it]

with offerors communicating to offerees.’” Id. at 499

15

(quoting Linmark Assocs. v. Township of Willingboro,

431 U.S. 85, 96, (1977)). See also Carey v. Population

Services International, 431 U.S. 678, 701 n. 28 (1977)

(content-based commercial speech regulations “directed

not at any commercial aspect of the prohibited adver-

tising, but at the ideas conveyed” violates the “core of

First Amendment values”).

The First Circuit’s application of Central Hudson in

this case—in direct contravention of R.A.V. and 44

Liquormart—upheld the content-based cigarette adver-

tising regulations, even though the reason for such con-

tent discrimination was wholly unrelated to the

consumer protection interests typically cited as the jus-

tification for according commercial speech less than full

First Amendment protection. Since paternalistic regu-

lations limit content for the sake of purportedly pro-

tecting consumers from it—as opposed to concerns about

protecting consumers from commercial harms such as

false or misleading advertising—they should be sub-

jected to strict scrutiny.

The appellate court in this case explicitly acknowl-

edged that the Massachusetts regulations at issue were

content based. Consolidated Cigar Corp. v. Reilly, 218

F.3d 30, 42 (1st Cir. 2000). And though the Attorney

General proffered Massachusetts’ desire to “ ‘eliminate

deception and unfairness in the way [tobacco products]

are marketed, sold and distributed,’ ” Jd. at 43 (citing

940 C.M.R. §§ 21.01, 22.01) as one of the State interests

to be analyzed under the Central Hudson test, the Court

specifically found that the regulations did not directly

advance that interest. Jd. at 49 n. 11. The interests

acknowledged by the appellate court—e.g., protection of

children from the health hazards of smoking—were

unrelated to the consumer protection issues that under-

lie the rationale for limited protection of commercial

16

speech in the first place. Nevertheless, the court below

upheld the regulations, applying the intermediate

scrutiny test of Central Hudson. Under R.A.V., however,

strict scrutiny should have been applied.’

C. Central Hudson Has Proven to Be an

Unworkable Standard that Fails to Provide

the Type of Consistency and Predictability

that the First Amendment Requires

As this Court recently noted in its last commercial

speech case, Greater New Orleans Broadcasting Ass’n v.

United States, 527 U.S. 173 (1999), because the Central

Hudson test has proven to be overly-complex, “certain

judges, scholars, and amici curiae have advocated repu-

diation of the Central Hudson standard and implemen-

tation of a more straightforward and stringent test for

assessing the validity of governmental restrictions on

commercial speech.” 527 U.S. at 184. But the intricacy

of the test was only part of the reason so many esteemed

jurists, lawyers, and scholars have called for Central

Hudson’s reversal. Id. Another, more important con-

tributing factor is the fact that the test has proven to be

both unworkable and unpredictable. As Justice Thomas

explained in his concurring opinion in 44 Liquormart:

* A number of lower courts have either applied or considered

applying R.A.V. to content-based commercial speech restrictions. See

MD II Entertainment, Inc. v. City of Dallas, 28 F.3d 492, 495 (Sth Cir.

1994) (acknowledging potential application of R.A. V. to content-based

commercial speech regulation); Hornell Brewing Co. v. Brady, 819 F.

Supp. 1227, 1232-33 (E.D.N.Y. 1993) (applying both R.A.V. and Cen-

tral Hudson to speech regulation without deciding which is required);

Citizens United for Free Speech Il v. Long Beach Township Board of

Commissioners, 802 F. Supp. 1223, 1232 n.7 (D.N.J. 1992) (“It is

clear from the Supreme Court’s decision in R.A.V. v. City of St. Paul,

that commercial speech must be protected by the usual strictures

against content-based restrictions.”).

17

“The courts, including this Court, have found the

Central Hudson ‘test’ to be, as a general matter,

very difficult to apply with any uniformity. This

may result in part from the inherently nondetermi-

native nature of a case-by-case balancing ‘test’

unaccompanied by any categorical rules, and the

consequent likelihood that individual judicial pref-

erences will govern application of the test.”

44 Liquormart, 517 U.S. at 526-27 (Thomas, J., con-

curring in part and concurring in the judgment). Several

leading commentators have agreed. See, e.g., Kozinski &

Banner, 76 Va. L. Rev. at 630 (“[C]ases have been able

to shed little light on Central Hudson, aside from stand-

ing as ad hoc subject-specific examples of what is per-

missible and what is not.”); David P. Kasakove, New

York State Association of Realtors, Inc. v. Shaffer: When

the Second Circuit Chooses Between Free Speech and

Fair Housing, Who Wins?, 61 Brooklyn L. Rev. 397,

409-10 (1995) (“Rather than giving much-needed direc-

tion to the lower courts, the Supreme Court’s case-by-

case approach [based on Central Hudson} has led to such

unpredictability that [u]nless a case has facts very much

like those of a prior case, it is nearly impossible to pre-

dict the winner.”) (internal quotation omitted); R.

George Wright, Freedom and Culture: Why We Should

Not Buy Commercial Speech, 72 Denver U. L. Rev. 137,

162-66 (1994) (illustrating the unpredictable nature of

commerical cases applying Central Hudson).

In the twenty-one years Central Hudson has been the

law governing commercial speech cases, it has been

modified several times but never sufficiently to address

the problems inherent in the test. For instance, in 1986,

in Posadas de Puerto Rico Assocs. v. Tourism Co. of

Puerto Rico, 478 U.S. 328 (1986), the Court so diluted

prong three of the test that it merely required the gov-

ernment to show that it had a reasonable belief that its

18

speech restriction would in fact advance the govern-

ment’s asserted goal. /d. at 341-42. All this changed by

1993, when, in Edenfield v. Fane, 507 U.S. 761 (1993),

the Court strengthened prong three considerably, now

requiring government to affirmatively “demonstrate that

the harms it recites are real and that its restriction will in

fact alleviate them to a material degree.” Jd. at 771.

Likewise, prong four of Central Hudson, as inter-

preted in Posadas, provided little protection for

commercial speech, requiring courts to defer to the leg-

islature’s judgment concerning the viability of less

speech-restrictive alternatives. Posadas, 478 U.S. at 344.

Once again, however, in 1993, the Court rejuvenated

prong four, holding in City of Cincinnati v. Discovery

Network, Inc., 507 U.S. 410 (1993), that it is not met if -

there are “obvious less-burdensome alternatives to the

restriction on commercial speech.” Jd. at 417 n.13. Yet

only a few months after Edenfield and Discovery Net-

work were decided, the Court decided United States v.

Edge Broadcasting Co. T/A, 509 U.S. 418 (1993), in

which it upheld a federal statute prohibiting the broad-

cast of lottery advertising by broadcastérs licensed in

states that do not allow lotteries. In that case, the Court

seemed to rely more heavily once again on Posadas’

more deferential standard for prongs three and four. Jd.

at 427-30. Three years later, in 44 Ligquormart—a case in

which no opinion of the Court garnered a majority—the

Court abandoned Posadas altogether, concluding that

“Posadas erroneously performed the First Amendment

analysis.” 44 Liquormart, 517 U.S. at 509.

In the twenty-one years since Central Hudson was

decided, this Court has heard 19 commercial speech

cases (including this case)—an average of almost one

case each term.’ No other First Amendment issue has

3 See Central Hudson Gas & Electric Corp. v. Public Service

Commission, 447 U.S. 557 (1980); Metromedia, Inc. v. City of San

19

consumed more time of the Court in this time period. Of

the nineteen cases, the Court granted certiorari in only

one of them—Greater New Orleans Broadcasting

Ass’n—in order to resolve a circuit split. In the remain-

der of the cases, review was necessary to clarify and

reclarify the confusing and ever-elusive Central Hudson

standard. If Central Hudson is not abandoned, there is

little reason to believe that this trend will not continue.

As a result of all of this confusion, Central Hudson

today means different things in different courtrooms.

Some courts have applied the test more stringently, bor-

rowing from this Court’s recent, and more protective,

line of cases. See, e.g., Bad Frog Brewery, Inc. v. New

York State Liquor Authority, 134 F.3d 87, 99-101 (2d

Cir. 1998); Nordyke v. Santa Clara County, 110 F.3d

707, 713 (9th Cir. 1997). Others, however, like the court

of appeals here, continue to rely on this Court’s earlier

and less speech-protective line of cases. See also Penn

Advertising, Inc. v. Mayor and City Council, 63 F.3d

1318 (4th Cir. 1994), vacated on other grounds, 518 U.S.

Diego, 453 U.S. 490 (1981); In re R.M.J., 455 U.S. 191 (1982); Vil-

lage of Hoffman Estates v. Flipside, Hoffman Estates, Inc. 455 U.S.

489 (1982); Bolger v. Youngs Drug Products Corp., 463 U.S. 60

(1983); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626

(1985); Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto

Rico, 478 U.S. 328 (1986); San Francisco Arts & Athletics, Inc. v.

United States Olympic Committee, 483 U.S. 522 (1987); Shapero v.

Kentucky Bar Ass'n, 486 U.S. 466 (1988); Peel v. Attorney Registra-

tion & Disciplinary Commission, 496 U.S. 91 (1990); City of Cincin-

nati y. Discovery Netwark, Inc., 507 U.S. 410 (1993); Edenfield v.

Fane, 507 U.S. 761 (1993); United States v. Edge Broadcasting Co.,

509 U.S. 418 (1993); Ibanez v. Florida Department of Business and

Professional Regulation, 512 U.S. 136 (1994); Florida Bar v. Went

For It, Inc., 515 U.S. 618 (1995); Rubin v. Coors Brewing Co., 514

U.S. 476 (1995); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484

(1996); Greater New Orleans Broadcasting Ass'n v. United States,

527 U.S. 173 (1999).

20

1030, readopted on remand, 101 F.3d 332 (4th Cir.

1996), cert. denied, 520 U.S. 1204 (1997).

Not surprisingly, then, some lower courts have openly

criticized Central Hudson and have called on this Court

to bring more clarity to commercial speech doctrine. The

D.C. Circuit has described the Central Hudson standard

as “perplexing,” concluding that, when taken together,

the Supreme Court’s decisions in commercial speech

cases “leave little insight as to what criteria the Court

used. . . .” Kansas v. United States, 16 F.3d 436, 443

(D.C. Cir. 1994). And in Nordyke v. Santa Clara County,

110 F.3d 707 (9th Cir. 1997), the Ninth Circuit con-

cluded that, “the Central Hudson test is not easy to

apply and the cases. . . might suggest it is sufficiently

flexible to accommodate ‘good’ commercial speech and

to suppress that which is ‘not so good.’ ” Jd. at 712.

Unfortunately, the problem of Central Hudson’s

unpredictability is unlikely to be solved by making yet

additional modifications to the test. The problem is with

the indeterminacy of the test itself. For instance, the

test’s third prong requires examination of whether or not

the regulation at issue will “in fact” advance the gov-

ernment’s substantial interest “in a direct and material

way.” As one commentator has observed, the courts have

contrasted the concept of “direct” advancement with

connections that are described as “tenuous, highly spec-

ulative, ineffective, only remotely supportive of the gov-

ernment interest, conditional, or involving only limited

incremental, speculative or marginal support for the gov-

ernment interest. The potential for these concepts, which

are largely just opposing end points on progressive con-

tinua, to serve as merely conclusory labels for opposing

outcomes is obvious.” Wright, 72 Denv. U. L. Rev. at

164-65 (internal footnotes omitted).

21

The forth prong poses similar problems. That prong

requires the regulation to have a “reasonable fit” with its

purported ends so that it does not burden more speech

than is necessary. But the trade off between a slight

reduction in promoting the government’s stated interest

and a slight reduction in the burden on freedom of

speech is far from a precise calculus. The indeterminacy

of the test merely “invites the expression of a court’s,

predisposition.” Jd. at 166.

It is not surprising, then, that leading commentators

and at least five members of this Court have expressed

- increasing dissatisfaction with the Central Hudson test

and have expressed a willingness to reconsider its con-

tinued validity. See 44 Liquormart, 517 U.S. at 501

(Stevens, 4., joined by Kennedy & Ginsburg, JJ.); id. at

517-18 (Scalia, J., concurring) (expressing his “dis-

comfor* with the Central Hudson test,” and stating that

he is not “disposed to . . . reinforce” it); id. at 528

(Thomas, J., concurring) (rejecting application of Cen-

tral Hudsor entirely); see also Rubin, 514 U.S. at 493

(Stevens, J., concurring) (discussing the “misguided

approach adopted in Central Hudson”), Kathleen M., Sul-

livan, Cheap Spirits, Cigarettes & Free Speech: The

Implications of 44 Liquormart, 1996 Sup. Ct. Rev. 123,

126 (1996) (“After Liquormart, it is unclear why ‘com-

mercial speech’ should continue to be treated as a sep-

arate category of speech isolated from general First

Amendment principles.”); Kozinski & Banner, 76 Va. L.

Rev. at 648-52 (calling for the abandonment of Central

Hudson and adoption of strict scrutiny). In the Court’s

last commercial speech case, Greater New Orleans

Broadcasting Ass’n, the Court acknowledged Central

Hudson’s precarious status, but found it unnecessary to

address its continuing viability. Greater New Orleans

Broadcasting Ass’n, 527 U.S. at 184. The Court should

take this opportunity to provide truthful, nonmisleading

22

commercial speech with the full First Amendment pro-

tection it has always deserved.

CONCLUSION

This case should be analyzed under a strict scrutiny

test, and the decision of the Court of Appeals for the

First Circuit should be reversed.

Dated: New York, New York

February 22, 2001

Respectfully submitted

FLOYD ABRAMS *

JOEL KURTZBERG

CAHILL GORDON & REINDEL

80 Pine Street

New York, New York 10005

(212) 701-3000

Counsel for Amici Curiae,

Infinity Outdoor, Inc. and

Vista Media Group, Inc.

* Counsel of Record