Amicus Curiae Brief — Lorillard Tobacco Co. v. Reilly

FILED

MAR 26 20) ~

No. 00-596, 00-597, ; MAR 26 2001

IN THE

Supreme Court of the United States :

LORILLARD TOBACCO Co., et al.,

Petitioners,

Vv.

THOMAS F, REILLY,

ATTORNEY GENERAL OF MASSACHUSETTS,

Respondent.

ALTADIS U.S.A. INC., ef al.

Petitioners,

¥.

THOMAS F, REILLY,

ATTORNEY GENERAL OF MASSACHUSETTS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF FOR THE CITIES OF OAKLAND,

CALIFORNIA, AND CHICAGO, ILLINOIS,

AS AMICI CURTAE SUPPORTING RESPONDENT

JOHN A. RUSSO, STEPHEN P. BERZON *

City Attorney MICHAEL E, WALL

BARBARA J. PARKER ALTSHULER, BERZON, ET AL.

MARK P. WALD 177 Post Street, Suite 300

One Frank H. Ogawa Plaza, San Francisco, CA 94108

Oakland, CA 94612 (415) 421-7151

MARA S. GEORGES, ROBERT C. POST

Corporation Counsel School of Law (Boalt Hall)

LAWRENCE ROSENTHAL University of California

BENNA RUTH SOLOMON Berkeley, CA 94726

City Hall, Room 600

Chicago, IL 60602 * Counsel of Record

Lae A RR ORR RTT I STRESS

WILSON-EPES PRINTING CO., INC. -— (202) 789-0096 -— WASHINGTON, D. C. 20001

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BEST AVAILABLE COPYE

TABLE OF CONTENTS

Page

INTEREST OF THE CITIES OF OAKLAND AND

CLUDE sccinisianecusndesartintionincnnsiionnin pindieninindendiniais l

SUMMARY OF ARGUMENT ...............scccscssscssscssscsees

FRR TER suistenticecetividciciniciitnneanhssiccapminaaiiiediniiiniidiaitaiin

I. The First Amendment Permits the Government

to Prohibit Commercial Advertisements of a

Product to Persons for Whom that Product Is

Iilegal, So Long as the Regulation Has a

Reasonable Fit to Preventing Illegal

FERRER RE RET UONN DST SE ONS SSS 6

A. The First Amendment Does Not Protect

Commercial Speech that Advertises or

Promotes Illegal Activity ...............sccccesseeeees 7

B. A Regulation of Commercial Speech Has a

“Reasonable Fit” to the Prevention of

Illegal Transactions If It Addresses a

Serious Problem of Illegal Sales to Minors

and Leaves Open Sufficient Channels By

Which Adult Consumers Can Learn About

Se FS vnnciciccinnictstncencannmiininsntinaniiininiininases 9

C. Restrictions on Commercial Speech

Targeted to Advertising that Promotes an

Illegal Transaction Need Not Be Content

ie arcvsnsncnshiocivieaiettigeiieecinieeensnaetinnbiniiinensiinstinen 16

II. Massachusetts’ Regulations Have a Reason-

able Fit to the Compelling Goal of Preventing

a Serious Problem of Illegal Underage

TERRCOD SONOS BINT UG .cceecessrerecerovcsscssesevonserosene 19

CA sterngnnnsatinnnnamannaremniinninanniinininonnenennnen 30

ii

TABLE OF AUTHORITIES

CASES Page

44 Liquormart, Inc. v. Rhode Island, 517 U.S.

GS CE Pe ciennicininsicdctntininmaaeee passim

Bigelow v. Virginia, 421 U.S. 809 (1975).............. 7,8

Board of Trustees v. Fox, 492 U.S. 469 (1989) .... passim

Bolger v. Youngs Drug Products Corp., 463 U.S.

Ge CED wicceinacisctesicssntstnniannieeninnsinamaala passim

Butler v. Michigan, 352 U.S. 380 (1957)............. 5, 13, 22

Carey v. Population Services International, 431

Se GES CEG F FBcvviencsnnneessunvinnsetienninetiaiaiaieiammanie 5

Central Hudson Gas & Electric Corp. v. Public

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

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)... 20

City of Ladue v. Gilleo, 512 U.S. 43 (1994) .......... 23

City of Renton v. Playtime Theatres, Inc., 475

Ae BE CRF cacsssenssnscinntinnnenrieniaipneiapmaimaiclainnsia 20, 25

Cohen v. California, 403 U.S. 15 (1971)............... 24

Columbia Broadcasting System v. Democratic

National Comm., 412 U.S. 94 (1973) .......ceseeeeee 26

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

(Ree Ce, BIRD) wncenitnnrecsinitostinnerasiineliaianiiianialiael 8

Denver Area Educational Telecommunications

Consortium yv. Federal Communications

Commission, 518 U.S. 727 (1996).............0eeeeees 21

Edenfield v. Fane, 507 U.S. 761 (1993) .............. 8, 14, 29

Erznoznik v. City of Jacksonville, 422 U.S. 205

(TFT) anciesevincueuetinncieeaeanciaeinamniained 5

Federal Communications Commission _ v.

Pacifica Foundation, 438 U.S. 726 (1978)........ passim

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

Ca cinicscincsossnsineichietsensciinicaneapeiiaaiagaimaiacsaia ana iai passim

Food & Drug Admin. v. Brewn & Williamson

Tobacco Corp., 529 U.S. 120 (2000)................5 29

Ginsberg v. New York, 390 U.S. 629 (1968) ......... 12, 21

ili

TABLE OF AUTHORITIES—Continued

CASES Page

Greater New Orleans Broadcasting Association

v. United States, 527 U.S. 173 (1999).........ccc0000 passim

Hill v. Colorado, 530 U.S. 703 (2000) ..........sc0.000. a |

In re Primus, 436 U.S. 412 (1978)......cccccccsssscseeseee 9

TORRES, FSS US. 191 CUGBD) cacccccesscesvecsseseesece 9,14

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

Pana etdelicishsniidadnnskshtsasishseiconsbincilenteieresekesonioaseig 13

Kovacs v. Cooper, 336 U.S. 77 (1949) .o.ccccccccscseees 16

Linmark Associates, Inc. v. Township of

Willingboro, 431 U.S. 85 (1977) ...ccccccccssesceseees 16, 23

Lorillard Tobacco Co. v. Reilly, 84 F. Supp. 2d

I i 8

Metromedia, Inc. v. City of San Diego, 453 U.S.

leans aschnediadidatbgdiatiniaoriconisaiouns passim

New York v. Ferber, 458 U.S. 747 (1982) ....c.c.00.. 14

Nixon v. Shrink Missouri Government PAC, 528

ansaid sea sercatieetabisinecdawtsennnis 20

Ohralik v. Ohio State Bar Association, 436 U.S.

cg, SESS SEES passim

Packer Corp. v. Utah, 285 U.S. 105 (1932) .......... 19

Pittsburgh Press Co. v. Pittsburgh Commission

on Human Relations, 413 U.S. 376 (1973)....2, 6, 7, 17

Reno v. American Civil Liberties Union, 521

RE ena Sea 13, 14, 19

Rubin v. Coors, 514 U.S. 476 (1995).....ccccccccsseeseee 10

Sable Communications v. Federal Communica-

tions Commission, 492 U.S. 115 (1989) ..12, 13, 20, 21

Turner Broadcasting System vv. Federal

Communications Commission, 520 U:S. 180

United States v. Edge Broadcasting, 509 U.S.

UIA it bi ssintheadiinblndichciaistanbabiiisesibcakaasassesibason 3, 11

iV

TABLE OF AUTHORITIES—Continued

Page

United States v. Playboy Entertainment Group,

Fig ee Ts CO i inkniscrssnnsiascinsianenintinee 14, 20

Virginia Board of Pharmacy v. Virginia Citizens

Consumer Council, 425 U.S. 748 (1976)........... passim

Ward v. Rock Against Racism, 491 U.S. 781

ae iieasiaehneetitnanescinnnicennenetanmniinanpendiianiitaiinmidiiniene 11

Zauderer v. Office of Disciplinary Counsel, 471

Br EE A COD castthiinsnsitthcinhtnnhnctnlinnnbtinssnibonatipasinn 9, 17, 26

STATUTES AND REGULATIONS

Be Where WE LAUD, ROD vccessicavnsovsecsosscsoncensenecee 18

I i ia iie a canierietamdilion 2

61 Fed. Reg. 44504 (Aug. 28, 1996)........ssssesseseees 24

OTHER AUTHORITIES

Levy, RJR Memo Targeted Teen Market, USA

Today, at ID (Oct. 6, 1995) 0... eeeseeeeeeees sbictibiei 27

Tribe, American Constitutional Law § 12-15

Gee i PI asscicnicsesisedeishinscsepnntesiellbaaisiiciisitiebiante 7

Perry, C., The Tobacco Industry and Underage

Youth Smoking: Tobacco Industry Documents

from the Minnesota Litigation, 153 Archives

Pediatric Med. 935, 936, 938 (Sept. 1999) ........ 27

IN THE

Supreme Court of the United States

LORILLARD TOBACCO CoO., et al.,

Petitioners,

¥.

THOMAS F., REILLY, ATTORNEY

GENERAL OF MASSACHUSETTS,

Respondent.

ALTADIS U.S.A. INC., et al.,

Petitioners,

Vv.

THOMAS F, REILLY, ATTORNEY GENERAL OF

MASSACHUSETTS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF FOR THE CITIES OF OAKLAND,

CALIFORNIA, AND CHICAGO, ILLINOIS,

AS AMICI CURIAE SUPPORTING RESPONDENT

INTEREST OF THE CITIES

OF OAKLAND AND CHICAGO !

The City of Oakland, California (“Oakland”), is defendant

in Eller Media Co. v. City of Oakland, No. CV-98-02237

WHA (N.D. Cal.), appeals pending, Nos. 01-15210, 01-

' The Cities of Oakland and Chicago submit this brief, through their

authorized law officers, pursuant to Rule 37.4.

2

15354 (9th Cir.), a billboard industry challenge to Oakland’s

ordinance that restricts outdoor alcohol and tobacco sign

advertising near where minors live, go to school, and play.

The Eller Media plaintiffs challenged the Oakland

ordinance’s application to alcohol, but not tobacco,

advertising. After thirty months of litigation, the district

court granted summary judgment for Oakland on December

7, 2000. (The opinion is attached in an appendix bound with

this brief, cited as “_a.””) The plaintiffs’ motions for relief

from judgment and appeals to the Ninth Circuit are pending.

The City of Chicago, Illinois (“Chicago”), is defendant in

Federation of Advertising Industry Representatives, Inc. v.

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

529 U.S. 1066 (2000), a billboard industry challenge to

Chicago’s ordinance that restricts outdoor alcohol and

tobacco sign advertising near where minors live, go to school,

and play. The Seventh Circuit reversed the district court’s

ruling that the ordinance was preempted by federal law, and

the parties are now preparing for trial on the plaintiffs’ First

Amendment claims.

SUMMARY OF ARGUMENT

If there is one principle of commercial speech that this

Court has unanimously and repeatedly reaffirmed, it is that

the First Amendment provides no protection for commercial

speech that advertises an illegal product. See, e.g., Greater

New Orleans Broadcasting Ass'n v. United States, 527 U.S.

173, 183 (1999); Pittsburgh Press Co. v. Pittsburgh Comm'n

on Human Relations, 413 U.S. 376, 388 (1973). It is a crime

in Massachusetts to sell or give tobacco to minors. See Mass.

Gen. L., ch. 270, § 6. Accordingly, Massachusetts’ regulation

of advertisements that induce minors to participate in illegal

tobacco transactions would warrant no First Amendment

scrutiny whatsoever, but for the fact that the regulations also

have an incidental effect on tobacco advertising to adults.

3

While Central Hudson Gas & Electric Corp. v. Public

Service Commission, 447 U.S. 557 (1980), does not explicitly

address the context of restrictions on commercial speech for

products that are illegal for some purchasers but not for

others, this case can be decided based on established and

uncontroversial principles, without resolving the Central

Hudson test’s continuing vitality. Massachusetts’ regulations

reasonably target a serious and widespread problem of illegal

youth tobacco sales, without depriving adults of sufficient

opportunities to learn about tobacco products. Any incidental

burden these regulations might impose on tobacco advertising

to adults is proportional to the state’s compelling goal of

preventing illegal tobacco sales to children, who are too

young to make mature decisions about whether to use that

dangerous and addictive product. Massachusetts’ regulations

thus have a “reasonable fit” to the state’s compelling goal of

preventing illegal tobacco sales to minors, see Board of

Trustees v. Fox, 492 U.S. 469, 480 (1989), and are, for this

reason, constitutional.

The government’s power to restrict commercial speech that

promotes unlawful activity does not simply disappear

whenever such restrictions incidentally affect commercial

speech directed toward lawful consumers. This Court has

long held that the First Amendment permits “prophylactic”

regulation of commercial speech in “circumstances likely to

pose dangers that the State has a right to prevent,” see, e.g.,

Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 449, 464

(1978). One of the most serious of these dangers is the

solicitation of crime, and the government’s prophylactic

power should be at its peak when it is exercised to prevent

illegal behavior. The government is not rendered impotent to

restrict commercial speech that promotes crime simply

because such restrictions might have an impact on

advertisements to lawful consumers. Cf. United States vy.

Edge Broadcasting, 509 U.S. 418, 434-35 (1993).

4

This is not to say that a state could constitutionally prohibit

advertising for every product that is illegal to minors, simply

because it is illegal to minors, without regard to the burden on

adults. The government may neither leave lawful consumers

in the dark, nor regulate advertising addressed to illegal users

as a pretext for the suppression of commercial speech

directed at those to whom the product may lawfully be sold.

But no infringement of First Amendment values results where

a regulation of commercial speech is justified by the need to

prevent the illegal sale to minors of a dangerous, addictive

product that has a history of being tacitly marketed to youth,

so long as the regulation leaves adults sufficient means to

learn about the product. The government’s interests here are

far stronger than those which justified restrictions on the

broadcast of the seven “filthy words.” Federal Communica-

tions Comm'n v. Pacifica Found., 438 U.S. 726, 748-51

(1978).

By -prohibiting tobacco ads in geographical areas where

minors spend most of their time, in a medium particularly

accessible to children, Massachusetts has targeted

advertisements that encourage youth to buy tobacco. There is

no better way—petitioners certainly have suggested none—to

target and regulate such ads. Massachusetts’ tobacco

advertising regulations leave open to tobacco advertisers

numerous, traditionally-significant media, some of which are

not particularly expensive, including newspapers, magazines,

handbills, the mail, and, of course, any sign more than three

blocks from a school or playground. The regulations also

permit tobacco companies to voice their views on any issue—

whether it be the tobacco tax or the health effects of

smoking—as often as they like, so long as they do not do so

through commercial speech. In short, Massachusetts’

regulations neither “impede debate over central issues

of public policy,” 44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484, 503 (1996) (Stevens, J.), nor “reduce the

adult population .. . to reading only what is fit for

5

children,” Butler v. Michigan, 352 U.S. 380, 383 (1957).

They simply make it more difficult for tobacco companies to

hawk their wares where children go to school and play and

through a medium that evades parental control.

Once it is recognized that the sale of tobacco to minors is a

crime, and that tobacco signs near schools and playgrounds

directly relate to that crime, the fallacies in petitioners’ call

for strict scrutiny become plain. While Massachusetts’

regulations are indisputably content based, so too are all

regulations of commercial speech, including those aimed at

false and misleading advertising. Massachusetts’ regulations

are justified by the state’s unquestionable power to “freely

regulate commercial speech that concerns unlawful activity,”

Florida Bar v. Went for It, Inc., 515 U.S. 618, 623-24 (1995),

an unprotected content-based subcategory of commercial

speech, as well as the state’s “well settled” power to “adopt

more stringent controls on communicative materials available

to youths than on those available to adults,” Erznoznik v. City

of Jacksonville, 422 U.S. 205, 212 (1975). As Justice Stevens

has written, “[a] picture which may appropriately be included

in an instruction book may be excluded from a billboard.”

Carey v. Population Servs. Int'l, 431 U.S. 678, 717 (1977)

(Stevens, J., concurring).

Massachusetts has enacted a_ reasonably targeted

advertising regulation to prevent implicit invitations to

minors to participate in a crime, and that regulation does not

deprive lawful adult consumers of sufficient means of

learning about tobacco products, Under established principles

of First Amendment jurisprudence, this is sufficient to sustain

the constitutionality of the regulation.

6

ARGUMENT

I. The First Amendment Permits the Government to

Prohibit Commercial Advertisements of a Product

to Persons for Whom that Product Is Illegal, So

Long as the Regulation Has a Reasonable Fit to

Preventing Illegal Transactions.

The First Amendment would plainly permit the state to

prohibit a commercial billboard facing a middle school that

carries the message: “Hey kids, buy Camel to be cool and

sexy.” See, e.g., Pittsburgh Press, 413 U.S. at 388. The

question presented in this case is whether the state is disabled

from regulating such signs if the italicized words, “Hey kids,”

are not made explicit.

Although Central Hudson does not explicitly address the

situation where a product such as tobacco or alcohol is illegal

for some purchasers, but not for others, this case can be

decided based on established and uncontroversial principles,

without resolving the continuing vitality of the Central

Hudson test. This Court extended a limited form of First

Amendment protection to commercial speech principally to

protect lawful consumers’ interest in commercial information.

This interest does not apply where advertising is addressed to

illegal purchasers, particularly when these purchasers are

children. When a commercial speech restriction has a

“reasonable fit” to preventing a serious problem of illegal

sales to minors—by targeting commercial speech most likely

to influence children to make an illegal purchase, without

leaving lawful adults in the dark about their commercial

options—it is constitutional.’

? Although we argue in this brief that commercial speech regulations

designed to prevent illegal sales to minors are constitutional if they have a

“reasonable fit” to that goal, we wish to make clear that amici agree with

the position of amici City of Los Angeles, et al., that Massachusetts’

regulations also satisfy each element of the Central Hudson inquiry and

are not preempted.

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7

A. The First Amendment Does Not Protect

Commercial Speech that Advertises or

Promotes Illegal Activity.

Commerc:. speech “occurs in an area traditionally subject

to governmental regulation,” and as this Court has said, “the

State does not lose its power to regulate commercial activity

deemed harmful to the public whenever speech is a

component of that activity.” Ohralik, 436 U.S. at 456.

Nevertheless, in a series of cases beginning with Bigelow v.

Virginia, 421 U.S. 809 (1975), this Court extended to

commercial speech a “limited measure of protection,

commensurate with its subordinate position in the scale of

First Amendment values.” Ohralik, 436 U.S. at 456. The

Court took that step largely to protect “consumer’s interest in

the free flow of commercial information.” Virginia Bd. of

Pharmacy v. Virginia Citizens Consumer Council, 425 U.S.

748, 763 (1976). Thus, ““‘[t]he entire commercial speech

doctrine . . . represents an accommodation between the right

to speak and hear expression about goods and services and

the right of the government to regulate the sales of such goods

and services.” 44 Liquormart, 517 U.S. at 499 (plurality)

(quoting Tribe, American Constitutional Law § 12-15, at 903

(2d ed. 1988)).

Certain types of advertising, including that “related to

illegal behavior,” have received no constitutional protection

at all. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 69

(1983); Central Hudson, 447 U.S. at 563-64. Ever since the

Court first directly confronted the question, see Pittsburgh

Press, 413 U.S. at 388, it has repeatedly and without

hesitation reaffirmed that the government “may freely

regulate commercial speech that concerns unlawful activity.”

Florida Bar, 515 U.S. at 623-24; accord Greater New

Orleans, 527 U.S. at 183; Virginia Board, 425 U.S. at 772.

Even those members of the Court who have sometimes raised

doubts about the broadest applications of the commercial

8

speech doctrine have agreed on this point. See 44 Liquormart,

517 U.S. at 497 n.7 (opinion of Stevens, J.); id. at 520, 518

(Thomas, J., concurring); Fox, 492 U.S. at 475 (majority

opinion of Scalia, J.).

Where commercial speech promotes illegal activity, the

government’s “interest in regulating the underlying

transaction,” Edenfield, 507 U.S. at 767, is at its height.

Moreover, none of the usual reasons for protecting

commercial speech apply to solicitations to unlawful

purchasers. A consumer has no cognizable competing

interest “in the free flow of commercial information” about

“who is charging what,” Virginia Board, 425 U.S. at 763,

764, when the consumer may not lawfully buy the product.

See Central Hudson, 447 U.S. at 563. Nor is there a “public

interest” that purchases of illegal goods, “in the aggregate, be

intelligent and well informed.” Virginia Board, 425 U.S. at

765. Bans on advertising related to illegal activity do not

endanger deeper, democratic values by “obscur[ing] an

‘underlying governmental policy,’ ” 44 Liguormart, 517 U.S.

at 503, for the government’s policy is plain on the face of the

criminal code. And whatever incremental contribution to

public debate may be made by commercial speech for such

products as marijuana or “cop killer” bullets, it is more than

outweighed by the government’s compelling interest in

preventing a flourishing, unlawful trade in prohibited goods.”

* The Attorney General has, throughout this litigation, argued that

tobacco sales to minors are illegal. See Lorillard Tobacco Co. v. Reilly,

84 F. Supp. 2d 180, 186 (D. Mass. 2000); Consolidated Cigar Corp. v.

Reilly, 218 F.3d 30, 43, 51 (1st Gir. 2000). While that illegality may not

end the inquiry under Central Hudson’s first prong, the Attorney General

has always contended that it informs the constitutional analysis.

oO —--

9

B. A Regulation of Commercial Speech Has a

“Reasonable Fit” to the Prevention of Illegal

Transactions If It Addresses a Serious Problem

of Illegal Sales to Minors and Leaves Open

Sufficient Channels By Which Adult

Consumers Can Learn About the Product

Petitioners and their amici cursorily dismiss the fact that

the sale of tobacco to minors is a crime on the ground that the

sale of tobacco to adults is not. The mere fact that a product

is lawful for some users, however, cannot deprive the

government of all power to restrict marketing to illegal

purchasers. Instead, what is called for is “a constitutionally

appropriate balance,” see Bolger, 463 U.S. at 84 (Stevens, J.,

concurring) (internal quote marks omitted), a balance that

both acknowledges the government’s compelling need to

prevent crime and that simultaneously protects lawful

purchasers’ interests in information about goods and services.

1. It has always been understood that a regulation of

commercial speech may be overbroad to a degree that would

be intolerable if applied to noncommercial expression.

Compare Ohralik, 436 U.S. ai 467-68, with In re Primus, 436

U.S. 412, 421-22, 428-32 (1978). Thus, in “circumstances

likely to pose dangers that the State has a right to prevent,”

the government may establish and enforce “prophylactic”

regulations of commercial speech “whose objective is the

prevention of harm before it occurs.” Ohralik, 436 U.S. at

449, 464; see also In re R.M.J., 455 U.S. 191, 203 (1982).

The government may ban in-person attorney solicitations to

prevent overreaching, even absent evidence that every

instance of in-person solicitation in fact overreaches. See

Ohralik, 436 U.S. at 466, 468. The government may require

attorneys who take a case on contingency to disclose clients’

liability for costs, even though not all clients would be misled

without the disclosure. Zauderer v. Office of Disciplinary

10

Counsel, 471 U.S. 626 (1985). The government may prohibit

all on-campus commercial sales pitches to “prevent[]

commercial exploitation of students,” Fox, 492 U.S. at 475,

even though not all on-campus sales will inflict such harms.

And the government may ban off-site commercial billboard

advertisements as traffic hazards, Metromedia, Inc. v. City of

San Diego, 453 U.S. 490, 508 (1981), even though some such

ads might pose no such hazard.

Thus, so long-as the overbreadth of a regulation of

commercial speech is “in proportion to the interests served,”

this Court has “le[ft] it to governmental decisionmakers to

judge what manner of regulation may best be employed.”

Fox, 492 U.S. at 480 (internal quote marks omitted). The

Court has not required that the regulation of commercial

speech be the least restrictive possible; instead, it has upheld

such regulation when it evidences a “reasonable fit” between

“the legislature’s ends and the means chosen to accomplish

those ends.” Jd; accord, Greater New Orleans, 527 U.S. at

188; 44 Liguormart, 517 U.S. at 507-08 (plurality); id. at 529

(O’Connor, J., concurring); Florida Bar, 515 U.S. at 632;

Rubin v. Coors, 514 U.S. 476, 486 (1995).

The permissible scope of such prophylactic regulation is

necessarily at its broadest when the government acts to

restrict commercial speech “related to illegal behavior,”

see Bolger, 463 U.S. at 69, for in such circumstances the

underlying harm the state seeks to prevent is most grave. The

danger is that an act deemed serious enough to warrant

criminal sanction may result. Thus, as a general rule, “the

government may freely regulate commercial speech that

concerns unlawful activity.” Florida Bar, 515 US. at

623-24.

Where commercial speech relates to activity that is only

sometimes unlawful—where, for example, advertisements can

reach both lawful and unlawful purchasers—it will frequently

prove impossible, in practice, to distinguish with precision

11

which ads do and do not induce illegal sales. Yet it is

precisely because of such uncertainties that commercial

speech doctrine has always permitted the government to enact

prophylactic restrictions where the commercial speech is

“likely” to pose dangers that justify its restriction. Ohralik,

436 U.S. at 449. It is not only appropriate in such

circumstances, but essential, for the government to make

what the Court has termed a “rough approximation of

efficacy,” see Greater New Orleans, 527 U.S. at 194-95, by

regulating the location, hours, or style of advertisements to

restrict only those instances most likely to induce illegal

sales. The government should be able to proscribe an

advertisement for nerve gas in Soldier of Fortune magazine,

for example, even if the mailing of such an offer to a military

procurement officer is allowed. And the government may

prohibit lottery advertisements from being broadcast from

jurisdictions where the lottery is illegal, even though it

thereby burdens listeners who live where the lottery is legal.

See Edge Broadcasting, 509 U.S. at 423. While the

government may not “burden substantially more speech than

is necessary to further [its] legitimate interests,” Ward v. Rock

Against Racism, 491 U.S. 781, 799 (1989), “[s]o long as the

chosen means are not substantially broader than necessary to

achieve the government’s interest, . . . the regulation will not

be invalid simply because a court concludes that the

government’s interest could be adequately served by some

less-speech-restrictive alternative.” Id. at 800; cf. Fox, 492

U.S. at 478 (holding that the time, place and manner doctrine

sets a ceiling for First Amendment scrutiny of commercial

speech regulation).

This is the only approach that will neither cut off the flow

of commercial information to lawful purchasers nor invite

advertisers implicitly to solicit criminal transactions by

placing ads where they are most likely to induce illegal sales.

Fox’s “reasonable fit” test is a manifestly appropriate

measure of the government’s authority to steer a middle

12

course between these extremes. Whatever concerns may

exist about this Court’s commercial speech doctrine as

applied to “truthful information about entirely lawful

activity,” Virginia Board, 425 U.S. at 773 (emphasis added),

the government must be permitted adequate leeway to prevent

illegal transactions, and to prevent commercial speech that

induces them.

2. Where the government acts to prevent transactions that

are not only illegal, but also involve minors in that illegality,

its prophylactic power over commercial speech is necessarily

at its peak. The government’s interest in preventing harm to

minors is compelling, see, e.g., Sable Communications v.

Federal Communications Comm’ n, 492 U.S. 115, 126 (1989),

for minors are unusually vulnerable and unusually susceptible

to marketers’ influence. As Justice Stewart wrote in his

concurrence in Ginsberg v. New York, 390 U.S. 629, 649-50

(1968):

The First Amendment guarantees liberty of human

expression in order to preserve in our Nation what Mr.

Justice Holmes called a “free trade in ideas.” ... The

Constitution guarantees, in short, a society of free

choice. Such a society presupposes the capacity of its

members to choose.

When expression occurs in a setting where the

capacity to make a choice is absent, government

regulation of that expression may co-exist with and even

implement First Amendment guarantees.... § I think a

State may permissibly determine that, at least in some

precisely delineated areas, a child . . . is not possessed of

that full capacity for individual choice which is the

presupposition of First Amendment guarantees.

Thus, where advertising for a product illegal to minors is

restricted only in places where minors spend most of their

13

time, those restrictions are firmly supported by “society’s

right to ‘adopt more stringent controls on communicative

materials available to youths than on those available to

adults.’ ” Pacifica, 438 U.S. at 757 (Powell, J. concurring).

This Court has not, contrary to the claim of amicus

Association of National Advertisers (“ANA”), consistently

rejected society’s right to protect children from speech that is

particuiarly dangerous for them. Compare ANA Br. at 9.

Not one of the cases cited by the ANA stands for such a

proposition. Most involved restrictions on noncommercial

speech, and none involved limitations as narrow as those

challenged here.* Only in Bolger did the Court confront a

restriction on commercial speech, and the law held

unconstitutional there “purg[ed] all mailboxes” of any

advertisements for contraceptives, a product that was not only

entirely legal for minors, but constitutionally protected.

463 U.S. at 73-75.

These cases hardly hold that the government may never

regulate advertising to minors in a way that imposes

incidental burdens on adults, and several of these cases

Suggest precisely the opposite. See, e.g., Sable, 492 U.S. at

126 (government may enact narrowly drawn regulation on

noncommercial speech to protect “the physical and

psychological well-being of minors”); Joseph Burstyn, 343

, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 498 (1952), for

example, invalidated a law that banned any film the state viewed as

“sacrilegious.” Butler struck down a law that banned all books,

magazines, newspapers, writings, ballads, pictures, drawings, pamphlets,

publications, recordings, photographs, and “other thing[s]” considered by

the state as “tending to the corruption of the morals of youth.” 352 U.S. at

381. Reno v. American Civil Liberties Union, 521 U.S. 844, 869, 879

(1997), rejected a ban on transmission of any indecent communications

over the Internet, in part because substantially less restrictive alternatives

were available. And Sable, 492 U.S. at 128, 130-31, invalidated a ban on

all indecent “dial-a-porn,” again because less-restrictive alternatives were

available.

14

U.S. at 502 (a movie’s “capacity for evil, particularly among

youth” may be “relevant in determining the permissible scope

of community control’); Reno, 521 U.S. at 875 (“the

governmental interest in protecting children from harmful

materials” cannot justify “an unnecessarily broad

suppression” of non commercial speech to adults (emphasis

added)). Indeed, when the Court has felt the well-being of

children to be unambiguously at stake, as with child

pornography, it has not hesitated to approve regulations of

speech that had quite wide-ranging impact on

communications available to adults. See, e.g., New York v.

Ferber, 458 U.S. 747 (1982).

3. If regulations of commercial speech for a product that is

illegal to some but not to others evince a “reasonable fit” to

preventing illegal transactions, there is little danger to

legitimate commercial speech. There can be no “reasonable

fit” unless the danger of illegal transactions is in fact real; for

in the absence of a real problem, the burden on speech to

lawful consumers could not be justified. See Fox, 492 U.S. at

480 (burden on commercial speech must be “‘in proportion to

the interest served’” (quoting /n re R.M.J., 455 U.S. at 203)).

The “reasonable fit” inquiry therefore does not permit the

government to use an illusory danger of illegality as a pretext

for pursuing “‘an underlying governmental policy’ that could

be implemented without regulating speech.” 44 Liquormart,

517 U.S. at 501 (Stevens, J.). The question in each case is

whether an “actual problem” exists. United States v. Playboy

Entertainment Group, Inc., 529 U.S. 803 120 S. Ct. 1878,

> ee?

1891 (2000). This Court has adequate doctrinal tools to make

such determinations. Compare Ohralik, 436 U.S. at 464-68

(in-person solicitation by attorney sufficiently dangerous to

support regulation) with Edenfield, 507 U.S. at 774-75 (in-

person solicitation by accountant not demonstrated to be a |

real problem).

15

If the underlying unlawful problem is not only “actual,” but

epidemic, the legislature’s determination to restrict

commercial solicitations to illegal users should be given

corresponding weight. This Court has been prepared to accept

quite drastic restrictions on commercial advertising where the

underlying governmental purpose was sufficiently important.

In Metromedia, 453 U.S. at 508, for example, the Court

upheld a total ban on all off-site commercial billboards based

on the city’s interests in preventing traffic hazards and

unsightly obtrusions. The government’s interest in preventing

illegal sales to minors of harmful and addictive products such

as tobacco and alcohol is of far greater magnitude. That

interest, when backed by substantial evidence of widespread

illegal sales and associated societal ills, justifies a

commensurate burden on commercial advertising to adults.

4. This Court has long reviewed with “special care”

restrictions that “entirely suppress commercial speech in

order to pursue a nonspeech-related policy.” Central Hudson,

447 U.S. at 566 n.9. As Justice Stevens has noted, “complete

speech bans . . . all but foreclose alternative means of

disseminating certain information.” 517 U.S. at 501 (Stevens,

J.). Such complete bans can deny lawful consumers important

information about goods and services necessary to informed

economic decision making.

Restrictions on commercial speech that allow ample

alternative channels of communication do not raise these

concerns. There are in fact a vast array of methods by which

marketers can promote their commercial messages.

Advertisers can reach lawful consumers without bombarding

them through all media, in all places, at all times.

Commercial sign advertising represents only one of numerous

avenues of communication, so much so that this Court has

countenanced a complete ban on off-site commercial

billboards. See Metromedia, 453 U.S. at 508-12. In

evaluating the constitutionality of restrictions on commercial

speech, this Court has frequently taken into account the

16

sufficiency of remaining channels of communication when

evaluating the reasonableness of the government’s restriction.

Compare Linmark Assocs. v. Township of Willingboro, 431

U.S. 85, 93-94 (1977) (noting the unique role played by

residential “for sale” signs in the real estate market, in which

“reality is not marketed through leaflets, sound trucks,

demonstrations, or the like. . . .”) with Florida Bar, 515 U.S.

at 633-34 (personal injury victims have adequate means to

learn about lawyers even if lawyers are not permitted to

solicit them by mail in the immediate aftermath of their

accidents). It is clear that burdens on commercial speech can

be constitutional if lawful consumers retain adequate access

to information about the relevant product or service, see, e.g.,

Ohralik, 436 U.S. at 458, for in such circumstances, the First

Amendment’s interest in the “free flow of commercial

information” is vindicated, Virginia Board, 425 U.S. at 763.

Where the burden on commercial speech to lawful

consumers is an incident to restrictions on commercial

advertising that encourages illegal transactions, the strength

of the government’s justification supports a degree of

restriction that might not be permitted in other circumstances.

Certainly if sound trucks are not an essential medium for

political expression because “[t]here is no restriction upon the

communication of ideas or discussion of issues by the human

voice, by newspapers, by pamphlets, by dodgers,” Kovacs v.

Cooper, 336 U.S. 77, 89 (1949), then the same must be true

where the government carefully targets restrictions only on

one form of commercial promotion for a product that is

illegal for a sizeable proportion of the audience, and only in

locations especially likely to induce unlawful sales.

C. Restrictions on Commercial Speech Targeted

to Advertising that Promotes Illegal Trans-

actions Need Not Be Content Neutral.

While it might be said that a regulation of commercial

speech to unlawful purchasers is content based, the same

17

could be said of all regulations of commercial speech. The

entire category of commercial speech consists largely of

speech that, in one way or another, “propose[s] a commercial

transaction.” Virginia Board, 425 U.S. at 762. Moreover,

most commercial speech regulations—including those which

prohibit false and misleading advertising—make further

content-based distinctions within that category. Yet this has

never been thought to require commercial speech regulations

to survive strict scrutiny.

From the time this Court first extended limited First

Amendment protection to commercial speech, it understood

that it was creating a content-based doctrine. See, e.g.,

Virginia Board, 425 U.S. at 761 (“If there is a kind of

commercial speech that lacks all First Amendment protection,

therefore, it must be distinguished by its content.”); Bolger,

463 U.S. at 65 (“By contrast, regulation of commercial

speech based on content is less problematic.”). The Court has

repeatedly upheld facially content-based restrictions of

commercial speech without applying strict scrutiny, including

a prohibition on employment ads listed under gender-specific

headings, see Pittsburgh Press, 413 U.S. at 388-89;

restrictions on unsolicited mailings by lawyers to personal

injury victims in the immediate aftermath of an accident, see

Florida Bar, 515 U.S. at 634-35; contingency-fee disclosure

requirements, see Zauderer, 471 U.S. at 652-53; and a

prohibition on off-site commercial billboard advertising, see

Metromedia, 453 U.S. at 508-12.

To say that content-based distinctions may play no role in

the government’s regulation of commercial speech would be

to say that the most common forms of restrictions on

commercial speech would be required to survive the strictest

test this Court applies. That is, as this Court has recognized,

a very slippery path. “[R]equir[ing] a parity of constitutional

protection” between advertisements that promote an illegal

transaction and noncommerciai speech, including political,

scientific, and artistic expression, would surely bring us

a... . ee —

a

18

closer to “dilution, simply by a leveling process, of the force

of the [First] Amendment’s guarantee with respect to the

latter kind of speech.” Ohralik, 436 U.S. at 456; accord

Florida Bar, 515 U.S. at 623; Fox, 492 U.S. at 481 (1989);

Central Hudson, 447 U.S. at 562 n.5. It is in part for this

reason that it would be “incompatible” with the “‘subordinate

position [of commercial speech] in the scale of First

Amendment values’ to apply a more rigid standard” to

regulations of such speech than to content-neutral restrictions

on the time, place and manner of noncommercial speech.

Fox, 492 U.S. at 478 (alteration in original). Whatever else

might be said of the Court’s commercial speech doctrine, this

insight is certainly apt where the government seeks to restrict

commercial advertising that induces a serious problem of

illegal sales to minors.

Even petitioners and their amici do not advocate strict

scrutiny for all content-based restrictions on commercial

speech. They accept that certain content—commercial

speech that is misleading, for example—must be regulable.

See, e.g., Pet. Br. 30, No. 00-596. But if commercial speech

of misleading content does not warrant strict scrutiny, then

commercial speech that promotes criminal transactions

involving children certainly does not either.

The government should not be thought to commit

impermissible content or viewpoint discrimination if it

prohibits billboards advertising anabolic steroids one block

from the high school gym. True, there may be some legal

uses for even Schedule III drugs. Cf. 21 U.S.C. §§ 812(c),

823(e). But where the government regulates the location or

medium of commercial speech in a reasonably targeted effort

to preclude those ads that are most likely to induce sales to

unlawful purchasers, the government’s purpose and method

are fully consonant with First Amendment values.

19

II. Massachusetts’ Regulations Have A Reasonable Fit

to the Compelling Goal of Preventing a Serious

Problem of Illegal Underage Tobacco Sales and

Use.

Massachusetts’ tobacco advertising regulations reasonably

target an epidemic of illegal underage tobacco sales and use

that could not be combated as effectively if tobacco ads near

schools and playgrounds were permitted without any

restraint. This is not a case in which adults have been left in

the dark about tobacco products. Because the incidental

burden imposed on tobacco advertising to adults is entirely

reasonable in light of the state’s compelling purpose, the

state’s regulations are constitutional.

1. Massachusetts’ regulations principally target a

medium—advertising signs near schools and playgrounds—

that is even more intrusive to children than radio or television

broadcasts. Such signs stare implacably at children, and

parents cannot turn the signs off. As Justice Brandeis stated

almost seventy years ago in upholding Utah’s tobacco sign

advertising restriction:

Billboards, street car signs, and placards and such are in

a class by themselves. ... Advertisements of this sort

are constantly before the eyes of observers on the streets

and in street cars to be seen without the exercise of

choice or volition. Other forms of advertising are

ordinarily seen as a matter of choice on the part of the

observer. The young people as well as the adults have

the message of the billboard thrust upon them by all the

arts and devices that skill can produce. In the case of

newspapers and magazines, there must be some seeking

by the one who is to see and read the advertisements.

The radiv can be turned off, but not so the billboard or

streetcar placard.

Packer Corp. v. Utah, 285 U.S. 105, 110 (1932); compare

Reno, 521 U.S. at 869 (because Internet speech generally only

20

reaches persons who take steps to find it, it is less invasive

than speech that reaches persons uninvited).

Justice Brandeis’ observations of seven decades ago have

stood the tests of time and technology. To this day, there

remains no mechanism selectively to block or scramble

children’s view of outdoor signs. Compare Playboy

Entertainment Group, 120 S. Ct. at 1887. Access cannot be

restricted to those with a credit card or some other indicia of

majority. Compare Sable, 492 U.S. at 128. Children cannot

be separated from tobacco signs’ solicitation through more

vigorous parental “exercise [of] control over information that

flows into their mailboxes.” Bolger, 463 U.S. at 73.

Indeed, the sign advertising industry trumpets the

medium’s resistance to control. As the district court noted in

Eller Media v. City of Oakland, “Outdoor advertising ‘is seen

all day, every day,’ in Plaintiffs’ words. ‘It cannot be turned

off like television, tuned out like radio or discarded like

newspapers and magazines.’” See infra, at 14a (citations

omitted); see also id. (quoting amicus Infinity Outdoor’s

statement that “[W]e are proud to say, yes, that billboards

cannot be turned off, cannot be avoided . . . . Cannot be

discarded like you can throw away a newspaper.”).” Industry

and other research the Eller Media court found persuasive

reveals that:

Minors pay especially close attention to billboards.

Studies show that children’s awareness of billboards is,

* In a case like this, the Court may look to evidence developed by other

jurisdictions, including that filed in Eller Media by the City of Oakland, in

efforts to address similar problems. See City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 51-52 (1986); Nixon v. Shrink Missouri Gov't

PAC, 528 U.S. 377, 394 (2000). It has never been necessary for one

governmental body to duplicate research performed as to other, similarly

situated jurisdictions. See City of Erie v. Pap’s A.M., 529 U.S. 277,

296-99 (2000).

——_---S-»S»~S~S rnmr—ns — are

21

in the words of a billboard company analysis,

“remarkable.” “When compared to older viewers, the

kids outscored adults in perception, remembrance and

correct identification of outdoor advertised messages

seen.” :

_ See id. (citations omitted). One of these studies found, for

example, that boys and girls in San Jose, California, are about

200 percent more likely correctly to identify billboards for

Olympia beer than are adults. Expert testimony in Eller

Media also documented that alcohol advertising begins to

influence children who are as young as age six. Children of

such-tender years are certainly “not possessed of that full

capacity for individual choice which is the presupposition of

First Amendment guarantees.” Pacifica, 438 U.S. at 757

(Powell, J., concurring) (quoting Ginsberg, 390 U.S. at 649-

50 (Stewart, J., concurring)).

In short, children are particularly affected by sign

advertising, and that impact is particularly insidious because

it evades parental control. Such advertising not only interferes

with the government’s power to prevent solicitations of a

criminal transaction, but also with parents’ right “to direct the

rearing of their children.” Ginsberg, 390 U.S. at 639. Thus,

the interests Massachusetts’ regulations protect are not just

substantial, but compelling. Cf. Denver Area Educ.

Telecomm. Consortium v. Federal Communications Comm’ n,

518 U.S. 727, 747 (1996) (plurality opinion) (protecting

children from indecency is compelling interest); id. at 806

(Kennedy, J., concurring) (same); id. at 832 (Thomas, a.

concurring) (same); Sable, 492 U.S. at 126 (“{T]here is a

compelling interest in protecting the physical and

psychological well-being of minors.”).°

° Oakland for example, unlike Massachusetts, chose not to regulate on-

site and in-store advertising, in an accommodation to the particular

interest of lawful consumers in learning where alcohol products are

~

22

2. While the government certainly may not reduce public

discourse “to that which would be suitable for a sandbox,”

Bolger, 463 U.S. at 74, Massachusetts has hardly swept all

adult tobacco speech into the sand. Compare Butler, 352

U.S. at 381 (striking down a ban applicable to “any book,

magazine, newspaper, writing, pamphlet, ballad, printed

paper, print, picture, drawing, photograph, publication, or

other thing, including any recordings”) with Pacifica, 438

US. at 750 n.28 (“Adults who feel the need may purchase

tapes and records or go to the theaters and nightclubs to hear

these words.”). The state has only restricted tobacco

advertising where children are most likely to see it, within

three city blocks of schools and playgrounds, leaving tobacco

companies numerous alternative means by which to employ

their considerable marketing expertise to convey their

commercial message to adults.

- These alternatives include local, regional, and national

newspapers, magazines of every sort, handbills, the mail, the

Internet, promotional merchandise, in-store signs above a

child’s eye level, and signs in stores closed to minors. The

tobacco companies may, moreover, place as many signs as

they want in areas more than three blocks from a school or

playground, which in most cities would include the

concentrated commercial and industrial areas where adults

typically work; the regulations impose “no limitations on the

number, size, text, or images of the placards” within those

sold. The Court previously has upheld cities’ authority to make precisely

that accommodation. See Metromedia, 453 U.S. at 511-12. Oakland and

Chicago have, however, restricted alcohol billboard advertising near

homes, as well as schools and other youth facilities, because, in Oakland

and Chicago, pervasive alcohol billboard advertising accosted minors, not

only where they played and attended school, but also where they lived.

The need for such fine tuning to each locality’s circumstances is precisely

why this Court has recognized “room for the exercise of legislative

judgment” in its commercial speech cases. 44 Liquormart, 517 U.S. at

508 (plurality).

23

permissible zones. Hill v. Colorado, 120 S. Ct. 2480, 2495

(2000). When considered cumulatively, these alternative

channels leave little risk that Massachusetts adults will

suddenly cease to hear the tobacco companies’ message.’

Massachusetts has not deprived adults of commercial

information regarding tobacco products, but simply made it

more difficult for tobacco merchants to market their product

in a way that induces minors to buy it. This Court has in the

past upheld a total ban on offsite commercial billboard

advertising, see Metromedia, 453 U.S. at 508-12, suggesting

that such signs generally are not an indispensable medium for

commercial speech.* Here, the reasons for restricting the

commercial speech are far more compelling, and more than

sufficient to justify the regulations’ incidental burden on

commercial advertising to adults.”

3. Massachusetts’ restriction on tobacco advertising

within three blocks of schools and playgrounds have an

obvious and close fit to the state’s compelling goal of

” Published advertising rates for Massachusetts’ principal newspaper

Suggest that newspaper ads are quite inexpensive. As of March 5, 2001,

The Boston Globe quoted a price of $158.78 per column inch for a retail

display ad run on a Saturday reaching hundreds of thousands of

individuals. See <http://extranotes.globe.com/rates.nsf/a0f09e7d9207860-

d852565a100522a15/4b680f4aac07c3 1a8525654800645739? Open : -~cu-

ment> (visited March 5, 2001).

* Other than a narrow circumstance in which sign adve tising

historically has played a particularly critical role, see, e.g., Linmark, 431

U.S. at 93 (real estate “for sale” signs), this Court has never invalidated a

restriction on commercial sign advertising. See, e.g., Metromedia, 453

U.S. at 507-512; Packer Corp., 285 U.S. 105 (1932). The regulation

overturned in City of Ladue v. Gilleo, 512 U.S. 43, 45-46, 58 n. 17 (1994),

prohibited political speech on yard and window Signs placed at one’s own

home.

* To the extent that the Master Settlement Agreement imposes certain

limits on advertising by signatories to that agreement, those are limits to

which they voluntarily agreed, and which they therefore cannot use as a

basis to attack Massachusetts’ regulations.

24

preventing illegal tobacco sales to minors. The steady drum

beat of such sign advertising is heard by children not just

once, but every day. So long as school is in session, tobacco

placards placed just outside the schoolhouse gates will

persuade and invite children to buy tobacco just as surely as if

the signs were placed inside the school yard. When the

advertised product is tobacco (or in the case of Oakland and

Chicago, alcohol), and when the viewers are children, the

signs have the effect of urging a crime.

There is no obvious alternative—petitioners certainly have

suggested none—better fitted to preventing illegal tobacco

solicitations of minors than restrictions on _ tobacco

advertising where minors spend most of their time. Requiring

such signs to carry a warning to minors obviously would be

no help, for the point is not that minors should be permitted to

avert their eyes to avoid offense. Compare Cohen v.

California, 403 U.S. 15, 21 (1971). Children are vulnerable,

susceptible, and not yet fully rational; they cannot be

expected voluntarily to turn away from an attractive nuisance

or an enticement to participate in a crime.'®

The 1000-foot advertising-restricted zone also is, at the

very least, a permissible “rough approximation,” Greater

New Orleans, 527 U.S. at 194-95, of the area in which

children will be most likely to be solicited by tobacco

advertisements on their way to and from school and play.

Large signs may be read by a child with average vision at

1000 feet, see 61 Fed. Reg. 44504 (Aug. 28, 1996), and

although the tobacco industry Master Settlement Agreement

limits the size of advertising signs on behalf of the

'° Petitioners note that the Master Settlement Agreement restricts the

use of cartoon characters in certain tobacco ads [Pet. Br. 36, No. 00-596],

but this restriction plainly is inadequate to address the problem targeted by

Massachusetts’ regulations. Tobacco advertising signs seen by children

every day on their way to school and play induce them to buy tobacco

whether or not the signs contain cartoon characters.

PTL OE

aN TRENT AL

25

signatories, it does not limit the activities of non-signatories.

There is, moreover, an “accumulated, common-sense

judgment[] of local lawmakers,” see Metromedia, 453 U.S. at

509, that 1000 feet is an appropriate separation distance from

schools and parks to protect children from adult-oriented

expression. Cf. City of Renton, 475 U.S. at 46. That

judgment is born out by experience: When the Oakland City

Council held hearings on the appropriate scope for any

restrictions on tobacco and alcohol sign advertising, it

received testimony from students, teacheis, and parents that a

pre-existing 500-foot tobacco and alcohol advertising-free

zone had proven insufficient to prevent children from being

bombarded by such ads on their way to and from school.

Of course, any precise distance is necessarily arbitrary; but

“whether or not the {regulatory distance] is the best possible

accommodation of the competing interests at stake, we must

accord a measure of deference to the judgment of the [state’s]

Legislature.” Hill, 120 S. Ct. at 2495. A legislature required

to prove whether the “best possible” distance was 900 or

1000 or 1100 feet would be utterly paralyzed, and when it

comes to commercial advertisements related to illegal

activity, the First Amendment certainly imposes no such

exacting requirement. As Justice Stevens recently stated,

“Our commercial speech cases recognize some room for the

exercise of legislative judgment.” 44 Liguormart, 517 U.S. at

508 (plurality). Massachusetts has exercised that judgment

soundly in this case."

'' Petitioners point out that not all of Massachusetts’ evidence was

undisputed. in the context of commercial speech, however, undisputed

evidence has never been necessary to carry the government’s burden of

proof. As Justice Scalia noted for the Court in Fox, it is precisely because

of the “difficulty of establishing with precision the point at which

restrictions become more extensive than their objective requires” that the

Court has required only a reasonable, not a perfect, “fit.” 492 U.S. at 481.

Even in the noncommercial speech, time, place and manner context, “the

question is whether the legislative conclusion was reasonable and

26

4. Petitioners’ suggestion [Pet. Br. 36, No. 00-596] that

the affected tobacco advertising does not “relate to illegal

activity” unless the advertisers specifically intended to induce

illegal transactions misunderstands the reasons why such

advertising can be_ proscribed. Commercial speech

advertising illegal products may be prohibited because it

encourages criminal transactions. Advertisements for illegal

products can have this effect regardless of their intent.

Indeed, as Massachusetts’ evidence shows, tobacco

advertising’s impact on minors is now well documented,

regardless of intent. And it is the advertisement’s effect, not

its intent, that justifies prophylactic regulation.

Massachusetts may properly regulate to ameliorate this

impact, regardless of the intent of those who advertise

tobacco products.

“All advertisement is at least implicitly a plea for its

audience’s custom.” Zauderer, 471 U.S. at 639. Advertisers

carefully study the demographics of the audience likely to

view their ads, and are certainly aware that signs near schools

are likely to be seen by minors. Such signs frequently include

pictures of young, sexy, or “cool” personages that convey a

message even “those too young to read” can understand.

Pacifica, 438 U.S. at 749; see infra, at 1la-3a (illustrative

supported by substantial evidence.” Turner Broadcasting Sys. v. Federal

Communications Comm’ n, 520 U.S. 180, 211 (1997); compare Nixon, 528

U.S. at 395 (mere conflict among studies provides “little reason to doubt”

the legislature’s conclusion that “large contributions will work actual

corruption”). If the government presents substantial evidence to support

the restriction of commercial speech, judges “are not to ‘re-weigh the

evidence de novo, or to replace [the legislatures’] factual predictions with

[their] own.’” Turner Broadcasting, 520 U.S. at 211 (citation omitted); -

cf. Fox, 492 U.S. at 478. As Chief Justice Burger said in a different First

Amendment context, “when [the courts] face a complex problem with

many hard questions and few easy answers [judges] do well to pay careful

attention to how the other branches of Government have addressed the

same problem.” Columbia Broadcasting Sys. v. Democratic Nat’! Comm.,

412 US. 94, 103 (1973).

ee

27

alcohol billboards that appeared near Oakland homes,

schools, and youth centers depicting scantily clad women and

attractive young men who may or may not be of legal age);

see also infra, at Sa. If these are not circumstances that make

it “likely” the ads may influence minors to purchase tobacco,

one can scarcely imagine what circumstances are,'?

The government need not prove that an attractive tobacco

ad facing into a playground is intended to sway the children

at play. Where advertisements, because of their location,

present a “circumstance[] likely to pose dangers that the State

has a right to prevent,” the state is not powerless to do so.

Ohralik, 436 U.S. at 449. Commercial speech may promote

illegal transactions in ways that are not “overt”; that does not

disable the state from regulating such speech to prevent

inducements to crime. Cf., Pittsburgh Press, 413 U.S. at 388.

That said, it is by now a matter of public record that

tobacco companies have targeted advertising toward unlawful

teenage purchasers. See, e.g., C. Perry, The Tobacco Industry

and Underage Youth Smoking: Tobacco Industry Documents

from the Minnesota Litigation, 153 Archives Pediatric Med.

935, 936, 938 (Sept. 1999); Levy, RJR Memo Targeted Teen

Market, USA Today, at ID (Oct. 6, 1995). Indeed, Liggett &

Meyers explicitly admitted in a recent settlement that “the

tobacco industry markets to ‘youth, which means those under

18 years of age.” See Attorneys General Settlement

Agreement § 4.1 (March 20, 1997) <http://www.stic.neu.edu/

'2 Amicus Infinity Outdoor, one of the nation’s largest outdoor

advertising companies, testified at deposition in Eller Media that colleges

would be the best spot to geographically “target” a population aged 18 to

21—an admission that gives particular significance to a 1996 advertising

proposal, produced to Oakland by Infinity in discovery, that lists about 20

sites, all of which are colleges or universities, as “target[s]” for Southern

Comfort liquor ads in the Los Angeles area. The same advertising

proposal also listed the number of persons “18+” for each site, even

though persons aged 18 to 21 are not legal drinkers.

28

-LIGGETTSETTLE.htm> (visited March 5, 2001). Similar

evidence, discovered in the Eller Media litigation, indicates

that alcohol advertisers have done the same.'” The state must

be permitted sufficient leeway to prevent such illicit

targeting.“

5. Nor will permitting Massachusetts some room to

restrict commercial tobacco advertisements within three

blocks of schools and playgrounds leave the flood gates open

to advertising restrictions on a broad array of other products

that may not be appropriate for minors. Compare ANA Br.

19-20. Any restriction on commercial speech for a product

illegal to minors but not adults must have a “reasonable fit” to

preventing a serious problem of illegal sales to minors. To

meet that test, the regulation must leave open sufficient

means for lawful, adult consumers to learn about the product

and must be justified by the need to prevent a demonstrably

'? Evidence in Eller Media included statements by Anheuser-Busch,

for example, crowing over the success of a billboard ad campaign that

depicted Budweiser “spokespooch” Spuds MacKenzie, whom the

company describes as a “party animal par excellence,” on a skateboard; in

the same litigation, amicus Infinity Outdoor admitted that if a billboard ad

depicted skateboarding, it “would seem to suggest they’re targeting kids

rather than adults.” Similarly, a document produced by Eller Media Co.

identified the “target” for a national Bartles & Jaymes wine cooler ad

campaign as “Adults 18-49”—even though the legal drinking age is 21.

Another document, an industry study on the effects of “Budweiser/Bud

Dry Beer Awareness” and “Captain Morgan Spiced Rum Awareness,”

listed persons aged 18-24 as a “target.” See also note 12, supra.

'* It would be crippling were a state or municipality required to

conduct discovery in each instance to determine the intent of such

advertisements. In all likelihood, only the ad man will ever know for

certain what he had in mind when he placed an attractive tobacco placard

facing into a playground. If the government were required to prove, not

only solicitation in circumstances likely to induce illegal transactions, but

also a specific intent to make such a solicitation, the government’s ability

to prevent inducement to illegal commerce would be “substantially

diminished.” Ohralik, 436 U.S. at 466.

29

real underlying problem. See Edenfield, 507 U.S. at 770-71;

see supra, at 14-15. |

The evidence of widespread harm from underage tobacco

and alcohol purchase and use is overwhelming. As this Court

noted last Term, tobacco addiction is “one of the most

troubling public health problems facing our Nation today.”

Brown & Williamson Tobacco, 529 U.S. at 125. The Food

and Drug Administration has found that most of the 400,000

smokers who die each year began smoking regularly when

they were minors. /d. at 127-28. Ilegal youth drinking is

similarly epidemic—almost half of children have been drunk

before 10th grade, see Public Health Service, U.S. Dep’t of

Health & Human Servs., 1 “Drug Use Among American High

School Seniors, College Students and Young Adults, 1975-

1990,” at 91 (1991)—and at least as dangerous: The record

in Eller Media, for example, established that more than half

of students at one high school reported either driving while

drunk or riding with a drunk driver. The record also

implicated illegal youth drinking in rapes, homicide, traffic

accidents, assaults on police officers, and rioting.'” On such

facts, the reasons for restricting tobacco and alcohol

advertising to children outside schools and playgrounds are

far stronger than those this Court found sufficient, in Pacifica

Foundation, to support restrictions on the broadcast of seven

“filthy words.”

The same cannot be said for virtually any of the other

products that amicus ANA fears the government will

suddenly decide to regulate. There is no crisis of twelve year

olds illegally buying cars, renting hotel rooms, enrolling for

telephone services, purchasing pesticides, employing escort

'S Oakland’s youth drinking problem had also resisted a lengthy, multi-

prong campaign of enforcement, education and regulation pursued by

Oakland before it finally adopted complementary restrictions on the

locations of alcohol advertising. See infra, at 16a-19a.

30

services, trading in securities, or—of all unlikely things -

suggested by amicus—misacquiring public transportation

tickets. Nor do any of these products have either the

addictive qualities of tobacco and alcohol that make minors’

use particularly dangerous, or a similar history of tacit

marketing to minors. Indeed many of the products cited by

amicus may quite lawfully be given or sold to minors. If the

state were suddenly to restrict advertising for these other

products it would need to demonstrate that its regulations had

a “reasonable fit,” Fox, 492 U.S. at 480, to the redress of a

serious problem. In this regard, tobacco and alcohol stand in

a class by themselves. If any of the other products about

which amicus ANA expresses concern should in fact become

associated with societal problems of the dimensions of

unlawful underage tobacco and alcohol sales, restrictions on

their commercial promotion would, and should, begin to

assume a quite different constitutional complexion. *

For this reason, ANA’s parade of horribles does not

establish that upholding the _ constitutionality of

Massachusetts’ regulations would pose a credible hazard of a

slippery slope. It plainly makes both constitutional and

common sense for the government to be able to restrict ads,

near the schoolyard and playground, for a product that is

illegal to sell to children, a product the widespread underage

use of which has not only dangerous, but often deadly,

consequences. As Justice Stevens has written, “[a] picture

which may appropriately be included in an instruction book

may be excluded from a billboard.” Carey, 431 U.S. at 717

(Stevens, J., concurring). This case proves that point.

CONCLUSION

-The judgment of the court of appeals should be affirmed.

JOHN A. RUSSO,

City Attorney

BARBARA J. PARKER

MARK P. WALD

One Frank H. Ogawa Plaza,

Oakland, CA 94612

MARA S. GEORGES,

Corporation Counsel

LAWRENCE ROSENTHAL

BENNA RUTH SOLOMON

City Hall, Room 600

Chicago, IL 60602

March 2001

Respectfully submitted,

STEPHEN P. BERZON *

MICHAEL E. WALL

ALTSHULER, BERZON, ET AL

177 Post Street, Suite 300

San Francisco, CA 94108

(415) 421-7151

ROBERT C. POST

School of Law (Boalt Hall)

University of California

Berkeley , CA 94720

* Counsel of Record