The Massachusetts enacted a statute that prohibits smokeless tobacco or cigar advertising within a 1000-foot radius of a school or playground in order to eliminate unfair practices in the marketplace and to prevent access to and use by underage consumers.
Commercial speech shall receive commensurate protection of the First Amendment in relation to other constitutionally guaranteed expression.
In January 1999, the Attorney General of Massachusetts promulgated regulations governing the sale and advertisement of cigarettes, smokeless tobacco, and cigars to eliminate deception and unfair practices in the market and to prevent access to and use by underage consumers. The State statute prohibits smokeless tobacco or cigar advertising within a 1000-foot radius of a school or playground. The petitioners argue that the statute restricts their right to speech and thus violates the First Amendment.
Is the State statute that prohibits smokeless tobacco or cigar advertising within a 1000-foot radius of a school or playground constitutional?
No, while Massachusetts’ interest and the means identified by the State to advance that interest has a correlation and the speech restriction directly and materially advances the asserted State interest, there is no reasonable fit between the means and ends of the regulatory scheme. The Attorney General’s regulations fails to meet this standard and thus, the Massachusetts’ statute is unconstitutional.
Unlike what the majority has concluded, when the government seeks to restrict truthful speech to suppress the ideas it conveys, strict scrutiny is appropriate, whether or not the speech in question may be characterized as “commercial.” The State may not use its power to limit the content of commercial speech for any reason not related to the preservation of a fair bargaining process. That is what Massachusetts precisely did with respect to the advertisement of tobacco products, and the statute thus violates the First Amendment.
The Attorney General did not carefully calculate the costs and benefits associated with the burden on speech imposed by the regulations. The outdoor advertising regulations prohibit any smokeless tobacco or cigar advertising within 1000 feet of schools or playgrounds, which have effectively prevented advertising of approximately 90% in four major cities in Massachusetts. In some areas, the regulations completely banned communication of truthful information about smokeless tobacco and cigar to adult consumers. Moreover, the Court must consider that tobacco retailers and manufacturers have an interest in delivering truthful information about their products to adults, who in turn have a corresponding interest in obtaining truthful information about tobacco products. Because the respondent has failed to demonstrate that the regulations are not more extensive than necessary to advance the State’s substantial interest in preventing underage tobacco use, the State statute shall be deemed invalid.