# Amicus Curiae Brief — Lorillard Tobacco Co. v. Reilly

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1432%3A23

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 956

## Text

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

® 0

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 (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) (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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1432%3A23. Public record. Not legal advice.