High court weighs tobacco ad ban

Cigarette makers argue Mass. law oversteps federal authority

April 26, 2001|By Thomas Healy | Thomas Healy,SUN NATIONAL STAFF

WASHINGTON - Three years ago, to settle a major lawsuit filed by 46 states, the nation's largest cigarette manufacturers agreed to extensive limits on tobacco advertising, including a complete ban on outdoor billboards.

Yesterday, those same companies went before the Supreme Court to argue that more sweeping restrictions imposed by Massachusetts violate federal law and the manufacturers' right to free speech.

The outcome of the case could determine how far states and cities can go beyond the 1998 settlement in regulating the placement of tobacco ads.

Much of the one-hour argument turned on the meaning of a 1969 law that forbids states from imposing advertising regulations that are "based on smoking and health." One purpose of the law was to give the federal government exclusive control over health warnings on cigarette labels so that tobacco companies would not face conflicting state mandates.

But tobacco company lawyers argued yesterday that the law goes further. They said a regulation limiting the placement of cigarette ads is "based on smoking and health" if the motive of state officials is to protect residents from the health consequences of smoking.

And because the Massachusetts measure is designed to prevent children from smoking, they said, it violates the federal law.

Several justices appeared skeptical of that argument. Justice Sandra Day O'Connor questioned why a state should be forbidden from restricting the placement of cigarette ads.

"Is a state not entitled to do something about promotion and advertising to the extent that it encourages children to smoke?" she asked. "When you read the federal statute, it does seem to be directed more toward what has to be on cigarette labels than anything else."

Lawyers for the tobacco companies-Lorillard, Brown & Williamson, RJ Reynolds and Philip Morris - also argued that the Massachusetts regulation violates the First Amendment. Under current First Amendment doctrine, restrictions on commercial speech - such as advertising - are constitutional as long as they advance a substantial state interest and are narrowly drawn.

In their brief, the tobacco companies had urged the court to adopt a more permissive stance toward commercial speech, similar to the court's position on political and artistic expression. Several justices have appeared sympathetic to that argument in recent years, and observers anticipated that the court might debate the point during argument yesterday.

But for the most part, the argument steered clear of that issue. Instead, lawyers for the tobacco companies maintained that the Massachusetts regulation amounts to a complete ban on cigarette ads, in which case it would be unconstitutional even under current First Amendment law.

To support their argument, the lawyers said that the regulation - which prohibits cigarette ads within 1,000 feet of schools and playgrounds and indoor ads visible through store windows - covers 90 percent of the state's three largest cities.

But Justice Stephen G. Breyer seemed unconvinced. He asked what percentage of city land had already been closed to advertising as a result of other laws not targeted specifically at tobacco. When lawyers for the companies were unable to answer that question, he suggested that perhaps the case should be sent back to a lower court to gather evidence on that point.

In other developments yesterday, the court issued two opinions that limit the ability of inmates to challenge prior convictions that were used to increase the punishment for a later conviction.

In the first case, a federal prisoner who had been convicted on weapons charges received an increased prison term because he had previously been convicted of similar offenses in state court. The prisoner argued that the state convictions were unconstitutional and therefore could not be used to increase his federal sentence.

In a 5-4 decision, the court ruled that such challenges are prohibited. Writing for the majority, Justice Sandra Day O'Connor said the prisoner had ample opportunity - in this instance, 13 years - to contest his state convictions and that allowing a challenge at this stage would undermine the finality of state court proceedings. She also said that federal courts would have difficulty reviewing the constitutionality of state trials that took place many years before.

The second case decided by the court yesterday involved a similar challenge brought by a state - rather than a federal - prisoner. The court rejected this challenge as well in a 5-4 vote.

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