High court accepts challenges to state, city tobacco ad curbs

Manufacturers call the range of controls `diverse and confusing'

January 09, 2001|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON - The Supreme Court agreed yesterday to hear a plea by the tobacco industry to be freed from wide-ranging controls by states and cities on how it sells cigarettes, chewing tobacco and cigars.

The court accepted two new appeals by the industry as one of its first actions since recessing last month after the hotly disputed election case that cleared the way for former Texas Gov. George W. Bush to win the presidency.

The justices showed no sign of wanting to avoid a new controversy.

If the tobacco companies win their new appeals, they would gain constitutional immunity from nearly all marketing curbs except those of a federal law that requires health warnings on packages and ads, and a series of modest advertising limits that the industry agreed to obey as part of a deal to settle 46 states' lawsuits.

The two cases - one an appeal by cigarette and chewing tobacco manufacturers, the other by cigar-makers - are the most important for the industry since it won a ruling in March by the Supreme Court barring the U.S. Food and Drug Administration from regulating tobacco.

Complaining about a "patchwork" of "diverse and confusing" marketing restrictions in dozens of jurisdictions across the nation, the companies are raising constitutional challenges to restrictions imposed in Massachusetts.

The case has nationwide implications, including a potential threat to Baltimore's tobacco billboard ban that the justices left intact nearly four years ago. In a brief order in March 1997, the court cleared the way for Baltimore to begin banning billboards and other outdoor signs that promote cigarettes.

That order has helped encourage states and other cities to adopt strict curbs on tobacco promotion, to try to insulate children from advertising that might entice them to smoke or chew tobacco.

That was Massachusetts' goal when its attorney general imposed three layers of restrictions two years ago:

A ban on outdoor tobacco ads within 1,000 feet of schools, public playgrounds, or public parks with a playground area. That applies to billboards as well as to advertising that can be seen from outside a store.

A ban on placing ads lower than 5 feet from the floor inside retail stores near schools, playgrounds and parks.

A requirement that packs of cigarettes, chewing tobacco and cigars in stores be placed out of reach of all customers and within reach only of store clerks.

The 1st U.S. Circuit Court of Appeals based in Boston upheld all of those restrictions in July, treating them as zoning-style restrictions designed to protect the health and safety of minors.

The industry contends that the Massachusetts rules conflict with the federal cigarette labeling law, and thus are unconstitutional, and that they violate the First Amendment free-speech rights of the companies.

In recent years, the court has shown increasing sympathy for free-speech rights for advertising and other commercial expression. But it has not yet said whether that trend will be followed when the marketing restrictions are done to protect children. That will be a key issue in the new case.

The court will hold a hearing on the cases in April and rule by early summer.

In another case, the justices said they would decide whether the arrest of a driver by a police officer, after the driver has left the vehicle, justifies a search of the vehicle for evidence of crime.

The Florida Supreme Court ruled more than a year ago that a police officer's search of an auto after arresting the driver may be unconstitutional if the arrest is made after the individual had gotten out of the vehicle.

Florida state officials argue in an appeal that a 1981 Supreme Court ruling made it clear that once an officer has arrested a driver, a search of the vehicle may follow.

That case, too, will be heard in April and decided before summer.

In other actions:

The justices refused to hear an appeal by six Virginia college professors challenging a state law barring state employees from using a computer in their offices to gain access to sexually explicit Web sites. The law was upheld by the 4th U.S. Circuit Court of Appeals in Richmond.

In another case from Virginia, the justices ruled unanimously that it is premature for courts to rule on the constitutionality of using statistically adjusted census figures when drawing up new districts for Congress, state legislatures, and state and local governing bodies. Virginia argued unsuccessfully that now is the time to strike down the use in redistricting of any figures other than headcounts.

The court refused to clarify the power of state and local governments to give religious groups special exemptions from local zoning laws. The dispute involved an exemption that allowed a large Mormon temple to be built in a residential neighborhood in Belmont, Mass.

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