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United States Supreme Court
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Nos. 00-596 and 00-597
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533 U.S. 525, 533 U.S. 525, 121 S.Ct. 2404, 121 S.Ct. 2404, 150
L.Ed.2d 532, 150 L.Ed.2d 532, 2001.SCT.0000124
<http://www.versuslaw.com>, 69 USLW 4581, 69 USLW 4581, 69 USLW
4582, 69 USLW 4582
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June 28, 2001
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LORILLARD TOBACCO COMPANY, ET AL., PETITIONERS
v.
THOMAS F.
REILLY, ATTORNEY GENERAL OF MASSACHUSETTS, ET AL.
ALTADIS U. S. A.
INC., ETC., ET AL., PETITIONERS
v.
THOMAS F. REILLY, ATTORNEY
GENERAL OF MASSACHUSETTS, ET AL.
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SYLLABUS BY THE COURT
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OCTOBER TERM, 2000
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After the Attorney General of Massachusetts (Attorney General)
promulgated comprehensive regulations governing the advertising and sale
of cigarettes, smokeless tobacco, and cigars, petitioners, a group of
tobacco manufacturers and retailers, filed this suit asserting, among
other things, the Supremacy Clause claim that the cigarette advertising
regulations are pre-empted by the Federal Cigarette Labeling and
Advertising Act (FCLAA), which prescribes mandatory health warnings for
cigarette packaging and advertising, 15 U. S. C. §1333, and pre-empts
similar state regulations, §1334(b); and a claim that the regulations
violate the First and Fourteenth Amendments to the Federal Constitution.
In large measure, the District Court upheld the regulations. Among its
rulings, the court held that restrictions on the location of advertising
were not pre-empted by the FCLAA, and that neither the regulations
prohibiting outdoor advertising within 1,000 feet of a school or
playground nor the sales practices regulations restricting the location
and distribution of tobacco products violated the First Amendment. The
court ruled, however, that the point-of-sale advertising regulations
requiring that indoor advertising be placed no lower than five feet from
the floor were invalid because the Attorney General had not provided
sufficient justification for that restriction. The First Circuit affirmed
the District Court's rulings that the cigarette advertising regulations
are not pre-empted by the FCLAA and that the outdoor advertising
regulations and the sales practices regulations do not violate the First
Amendment under Central Hudson Gas & Elec. Corp. v. Public Serv.
Comm'n of N. Y., 447 U. S. 557, but reversed the lower court's
invalidation of the point-of-sale advertising regulations, concluding that
the Attorney General is better suited than courts to determine what
restrictions are necessary.
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Held:
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1. The FCLAA pre-empts Massachusetts' regulations governing outdoor
and point-of-sale cigarette advertising. Pp. 9-23.
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(a) The FCLAA's pre-emption provision, §1334, prohibits (a) requiring
cigarette packages to bear any "statement relating to smoking and health,
other than the statement required by" §1333, and (b) any "requirement or
prohibition based on smoking and health ... imposed under state law with
respect to the advertising or promotion of any cigarettes the packages of
which are labeled in conformity with" §1333. The Court's analysis begins
with the statute's language. Hughes Aircraft Co. v. Jacobson, 525 U. S.
432, 438. The statute's interpretation is aided by considering the
predecessor pre-emption provision and the context in which the current
language was adopted. See, e.g., Medtronic, Inc. v. Lohr, 518 U. S. 470,
486. The original provision simply prohibited any "statement relating to
smoking and health ... in the advertising of any cigarettes the packages
of which are labeled in conformity with the [Act's] provisions." Without
question, the current pre-emption provision's plain language is much
broader. Cipollone v. Liggett Group, Inc.,505 U. S. 504, 520. Rather than
preventing only "statements," the amended provision reaches all
"requirement[s] or prohibition[s] ... imposed under State law." And,
although the former statute reached only statements "in the advertising,"
the current provision governs "with respect to the advertising or
promotion" of cigarettes. At the same time that Congress expanded the
pre-emption provision with respect to the States, it enacted a provision
prohibiting cigarette advertising in electronic media altogether. Pp.
10-15.
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(b) Congress pre-empted state cigarette advertising regulations like
the Attorney General's because they would upset federal legislative
choices to require specific warnings and to impose the ban on cigarette
advertising in electronic media in order to address concerns about smoking
and health. In holding that the FCLAA does not nullify the Massachusetts
regulations, the First Circuit concentrated on whether they are "with
respect to" advertising and promotion, concluding that the FCLAA only
pre-empts regulations of the content of cigarette advertising. The court
also reasoned that the regulations are a form of zoning, a traditional
area of state power, and, therefore, a presumption against pre-emption
applied, see California Div. of Labor Standards Enforcement v. Dillingham
Constr., N. A., Inc., 519 U. S. 316, 325. This Court rejects the notion
that the regulations are not "with respect to" cigarette advertising and
promotion. There is no question about an indirect relationship between the
Massachusetts regulations and cigarette advertising: The regulations
expressly target such advertising. Id., at 324-325. The Attorney General's
argument that the regulations are not "based on smoking and health" since
they do not involve health-related content, but instead target youth
exposure to cigarette advertising, is unpersuasive because, at bottom, the
youth exposure concern is intertwined with the smoking and health concern.
Also unavailing is the Attorney General's claim that the regulations are
not pre-empted because they govern the location, not the content, of
cigarette advertising. The content/location distinction cannot be squared
with the pre-emption provision's language, which reaches all
"requirements" and "prohibitions" "imposed under State law." A distinction
between advertising content and location in the FCLAA also cannot be
reconciled with Congress' own location-based restriction, which bans
advertising in electronic media, but not elsewhere. The Attorney General's
assertion that a complete state ban on cigarette advertising would not be
pre-empted because Congress did not intend to preclude local control of
zoning finds no support in the FCLAA, whose comprehensive warnings,
advertising restrictions, and pre-emption provision would make little
sense if a State or locality could simply target and ban all cigarette
advertising. Pp. 15-21.
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(c) The FCLAA's pre-emption provision does not restrict States' and
localities' ability to enact generally applicable zoning restrictions on
the location and size of advertisements that apply to cigarettes on equal
terms with other products, see, e.g., Metromedia, Inc. v. San Diego, 453
U. S. 490, 507-508, or to regulate conduct as it relates to the sale or
use of cigarettes, as by prohibiting cigarette sales to minors, see 42 U.
S. C. §§300x-26(a)(1), 300x-21, as well as common inchoate offenses that
attach to criminal conduct, such as solicitation, conspiracy, and attempt,
cf. Central Hudson, supra, at 563-564. Pp. 21-22.
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(d) Because the issue was not decided below, the Court declines to
reach the smokeless tobacco petitioners' argument that, if the outdoor and
point-of-sale advertising regulations for cigarettes are pre-empted, then
the same regulations for smokeless tobacco must be invalidated because
they cannot be severed from the cigarette provisions. Pp.
22-23.
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2. Massachusetts' outdoor and point-of-sale advertising regulations
relating to smokeless tobacco and cigars violate the First Amendment, but
the sales practices regulations relating to all three tobacco products are
constitutional. Pp. 23-41.
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(a) Under Central Hudson's four-part test for analyzing regulations of
commercial speech, the Court must determine (1) whether the expression is
protected by the First Amendment, (2) whether the asserted governmental
interest is substantial, (3) whether the regulation directly advances the
governmental interest asserted, and (4) whether it is not more extensive
than is necessary to serve that interest. 447 U. S., at 566. Only the last
two steps are at issue here. The Attorney General has assumed for summary
judgment purposes that the First Amendment protects the speech of
petitioners, none of whom contests the importance of the State's interest
in preventing the use of tobacco by minors. The third step of Central
Hudson requires that the government demonstrate that the harms it recites
are real and that its restriction will in fact alleviate them to a
material degree. Edenfield v. Fane, 507 U. S. 761, 770-771. The fourth
step of Central Hudson requires a reasonable fit between the legislature's
ends and the means chosen to accomplish those ends, a means narrowly
tailored to achieve the desired objective. E.g., Florida Bar v. Went For
It, Inc., 515 U. S. 618, 632. Pp. 23-26.
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(b) The outdoor advertising regulations prohibiting smokeless tobacco
or cigar advertising within 1,000 feet of a school or playground violate
the First Amendment. Pp. 26-38.
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(1) Those regulations satisfy Central Hudson's third step by directly
advancing the governmental interest asserted to justify them. The Court's
detailed review of the record reveals that the Attorney General has
provided ample documentation of the problem with underage use of smokeless
tobacco and cigars. In addition, the Court disagrees with petitioners'
claim that there is no evidence that preventing targeted advertising
campaigns and limiting youth exposure to advertising will decrease
underage use of those products. On the record below and in the posture of
summary judgment, it cannot be concluded that the Attorney General's
decision to regulate smokeless tobacco and cigar advertising in an effort
to combat the use of tobacco products by minors was based on mere
"speculation and conjecture." Edenfield, supra, at 770. Pp.
26-31.
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(2) Whatever the strength of the Attorney General's evidence to
justify the outdoor advertising regulations, however, the regulations do
not satisfy Central Hudson's fourth step. Their broad sweep indicates that
the Attorney General did not "carefully calculat[e] the costs and benefits
associated with the burden on speech imposed." Cincinnati v. Discovery
Network, Inc., 507 U. S. 410, 417. The record indicates that the
regulations prohibit advertising in a substantial portion of
Massachusetts' major metropolitan areas; in some areas, they would
constitute nearly a complete ban on the communication of truthful
information. This substantial geographical reach is compounded by other
factors. "Outdoor" advertising includes not only advertising located
outside an establishment, but also advertising inside a store if visible
from outside. Moreover, the regulations restrict advertisements of any
size, and the term advertisement also includes oral statements. The
uniformly broad sweep of the geographical limitation and the range of
communications restricted demonstrate a lack of tailoring. The
governmental interest in preventing underage tobacco use is substantial,
and even compelling, but it is no less true that the sale and use of
tobacco products by adults is a legal activity. A speech regulation cannot
unduly impinge on the speaker's ability to propose a commercial
transaction and the adult listener's opportunity to obtain information
about products. The Attorney General has failed to show that the
regulations at issue are not more extensive than necessary. Pp.
31-36.
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(c) The regulations prohibiting indoor, point-of-sale advertising of
smokeless tobacco and cigars lower than 5 feet from the floor of a retail
establishment located within 1,000 feet of a school or playground fail
both the third and fourth steps of the Central Hudson analysis. The 5-foot
rule does not seem to advance the goals of preventing minors from using
tobacco products and curbing demand for that activity by limiting youth
exposure to advertising. Not all children are less than 5 feet tall, and
those who are can look up and take in their surroundings. Nor can the
blanket height restriction be construed as a mere regulation of
communicative action under United States v. O'Brien, 391 U. S. 367, since
it is not unrelated to expression, see, e.g., Texas v. Johnson, 491 U. S.
397, 403, but attempts to regulate directly the communicative impact of
indoor advertising. Moreover, the restriction does not constitute a
reasonable fit with the goal of targeting tobacco advertising that entices
children. Although the First Circuit decided that the restriction's burden
on speech is very limited, there is no de minimis exception for a speech
restriction that lacks sufficient tailoring or justification. Pp.
36-38.
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(d) Assuming that petitioners have a cognizable speech interest in a
particular means of displaying their products, cf. Cincinnati v. Discovery
Network, Inc., 507 U. S. 410, the regulations requiring retailers to place
tobacco products behind counters and requiring customers to have contact
with a salesperson before they are able to handle such a product withstand
First Amendment scrutiny. The State has demonstrated a substantial
interest in preventing access to tobacco products by minors and has
adopted an appropriately narrow means of advancing that interest. See
e.g., O'Brien, supra, at 382. Because unattended displays of such products
present an opportunity for access without the proper age verification
required by law, the State prohibits self-service and other displays that
would allow an individual to obtain tobacco without direct contact with a
salesperson. It is clear that the regulations leave open ample
communication channels. They do not significantly impede adult access to
tobacco products, and retailers have other means of exercising any
cognizable speech interest in the presentation of their products. The
Court presumes that vendors may place empty tobacco packaging on open
display, and display actual tobacco products so long as that display is
only accessible to sales personnel. As for cigars, there is no indication
that a customer is unable to examine a cigar prior to purchase, so long as
that examination takes place through a salesperson. Pp.
38-40.
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(e) The Court declines to address the cigar petitioners' First
Amendment challenge to a regulation prohibiting sampling or promotional
giveaways of cigars and little cigars. That claim was not sufficiently
briefed and argued before this Court. Pp. 40-41.
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218 F. 3d 30, affirmed in part, reversed in part, and
remanded.
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O'Connor, J., delivered the opinion of the Court, Parts I, II-C, and
II-D of which were unanimous; Parts III-A, III-C, and III-D of which were
joined by Rehnquist, C. J., and Scalia, Kennedy, Souter, and Thomas, JJ.;
Part III-B-1 of which was joined by Rehnquist, C. J., and Stevens, Souter,
Ginsburg, and Breyer, JJ.; and Parts II-A, II-B, III-B-2, and IV of which
were joined by Rehnquist, C. J., and Scalia, Kennedy, and Thomas, JJ.
Kennedy, J., filed an opinion concurring in part and concurring in the
judgment, in which Scalia, J., joined. Thomas, J., filed an opinion
concurring in part and concurring in the judgment. Souter, J., filed an
opinion concurring in part and dissenting in part. Stevens, J., filed an
opinion concurring in part, concurring in the judgment in part, and
dissenting in part, in which Ginsburg and Breyer, JJ., joined, and in Part
I of which Souter, J., joined.
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Court Below: 218 F. 3d 30
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Jeffrey S. Sutton argued the cause for petitioners in No. 00-596. With
him on the briefs were Daniel P. Collins, Kenneth S. Geller, Andrew L.
Frey, Richard M. Zielinski, John L. Strauch, Gregory G. Katsas, John B.
Connarton, Jr., Patricia A. Barald, and David H. Remes. James V. Kearney
filed a brief for petitioners in No. 00-597. With Mr. Kearney on the brief
were Christopher Harris and Richard P. Bress. Peter J. McKenna and Eric S.
Sarner filed a brief for petitioner U. S. Smokeless Tobacco Company in
both cases. William W. Porter, Assistant Attorney General of the
Commonwealth of Massachusetts, argued the cause for respondents in both
cases. With him on the brief were Thomas F. Reilly, Attorney General, and
Susan Paulson, Assistant Attorney General. Acting Solicitor General
Underwood argued the cause for the United States as amicus curiae urging
affirmance. With her on the brief were Acting Assistant Attorney General
Schiffer, Deputy Solicitor General Kneedler, Irving L. Gornstein, and
Douglas N. Letter. Briefs of amici curiae urging reversal were filed for
the American Advertising Federation et al. by Daniel E. Troy and Robin S.
Conrad; for the American Association of Advertising Agencies et al. by
Penelope S. Farthing; for the Association of National Advertisers, Inc.,
by Steven G. Brody, John J. Walsh, and Gilbert H. Weil; for Infinity
Outdoor, Inc., et al. by Floyd Abrams and Joel Kurtzberg; for the National
Association of Convenience Stores by Scott A. Sinder and John B. Williams;
for the Newspaper Association of America et al. by Bruce E. H. Johnson, P.
Cameron DeVore, Ren‚ P. Milam, Steven R. Shapiro, Stuart D. Karle, Robin
Bierstedt, Lucy Dalglish, and Gregg Leslie; for the Product Liability
Advisory Council, Inc., by Leslie G. Landau; and for the Washington Legal
Foundation by Daniel J. Popeo and Richard A. Samp. Briefs of amici curiae
urging affirmance were filed for the State of California et al. by Seth E.
Mermin and Corinne Lee Murphy, Deputy Attorneys General of California,
Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney
General, Herschel T. Elkins and Dennis Eckhart, Senior Assistant Attorneys
General, Ronald A. Reiter, Supervising Deputy Attorney General, and Robert
R. Rigsby, Corporation Counsel of the District of Columbia, and by the
Attorneys General for their respective jurisdictions as follows: Bruce M.
Botelho of Alaska, Janet Napolitano of Arizona, Mark Pryor of Arkansas,
Ken Salazar of Colorado, Richard Blumenthal of Connecticut, Robert A.
Butterworth of Florida, Earl I. Anzai of Hawaii, Alan G. Lance of Idaho,
Jim Ryan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Carla
J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Steve Rowe of Maine,
J. Joseph Curran, Jr., of Maryland, Mike Hatch of Minnesota, Mike Moore of
Mississippi, Jeremiah W. Nixon of Missouri, Mike McGrath of Montana,
Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire,
John Farmer of New Jersey, Patricia Madrid of New Mexico, Eliot Spitzer of
New York, Wayne Stenehjem of North Dakota, Herbert D. Soll of the Northern
Mariana Islands, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of
Oklahoma, Hardy Meyers of Oregon, Mike Fisher of Pennsylvania, Sheldon
Whitehouse of Rhode Island, Mark Barnett of South Dakota, Paul Summers of
Tennessee, John Cornyn of Texas, Mark Shurtleff of Utah, William H.
Sorrell of Vermont, Christine O. Gregoire of Washington, Darrel V. McGraw,
Jr., of West Virginia, and James E. Doyle of Wisconsin; for the Cities of
Oakland, California, et al. by Stephen P. Berzon, Michael E. Wall,
Lawrence Rosenthal, and Benna Ruth Solomon; for the City of Los Angeles et
al. by Mark E. Haddad, James M. Harris, Joseph R. Guerra, and James K.
Hahn; for the City of New York et al. by Michael D. Hess, Leonard J.
Koerner, Elizabeth Susan Natrella, Richard M. Weinberg, and Sandra R.
Gutman; for the American Legacy Foundation by A. Stephen Hut, Jr., John
Payton, Patrick J. Carome, and Matthew A. Brill; for the American Medical
Association et al. by Donald W. Garner; for the National Center for
Tobacco-Free Kids et al. by David Vladeck, Allison M. Zieve, Alan B.
Morrison, and Matthew L. Myers; for the National Conference of State
Legislatures et al. by Richard Ruda, James I. Crowley, and D. Bruce La
Pierre; and for the Tobacco Control Resource Center, Inc., by Richard A.
Daynard. Briefs of amici curiae were filed for the State's Attorney of
Dupage County, Illinois, et al. by Richard Hodyl, Jr., Joseph E. Birkett,
and Nancy J. Wolfe; and for the American Planning Association by Randal R.
Morrison.
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The opinion of the court was delivered by: Justice
O'Connor
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533 U. S. ____ (2001)
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on writs of certiorari to the united states court of appeals for the
first circuit
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In January 1999, the Attorney General of Massachusetts promulgated
comprehensive regulations governing the advertising and sale of
cigarettes, smokeless tobacco, and cigars. 940 Code of Mass. Regs.
§§21.01-21.07, 22.01-22.09 (2000). Petitioners, a group of
cigarette, smokeless tobacco, and cigar manufacturers and retailers, filed
suit in Federal District Court claiming that the regulations violate
federal law and the United States Constitution. In large measure, the
District Court determined that the regulations are valid and enforceable.
The United States Court of Appeals for the First Circuit affirmed in part
and reversed in part, concluding that the regulations are not pre-empted
by federal law and do not violate the First Amendment. The first question
presented for our review is whether certain cigarette advertising
regulations are pre-empted by the Federal Cigarette Labeling and
Advertising Act (FCLAA), 79 Stat. 282, as amended, 15 U. S. C. §1331 et
seq. The second question presented is whether certain regulations
governing the advertising and sale of tobacco products violate the First
Amendment.
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I.
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In November 1998, Massachusetts, along with over 40 other States,
reached a landmark agreement with major manufacturers in the cigarette
industry. The signatory States settled their claims against these
companies in exchange for monetary payments and permanent injunctive
relief. See App. 253-258 (Outline of Terms for Massachusetts in National
Tobacco Settlement); Master Settlement Agreement (Nov. 23, 1998),
http://www.naag.org. At the press conference covering Massachusetts'
decision to sign the agreement, then-Attorney General Scott Harshbarger
announced that as one of his last acts in office, he would create consumer
protection regulations to restrict advertising and sales practices for
tobacco products. He explained that the regulations were necessary in
order to "close holes" in the settlement agreement and "to stop Big
Tobacco from recruiting new customers among the children of
Massachusetts." App. 251.
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In January 1999, pursuant to his authority to prevent unfair or
deceptive practices in trade, Mass. Gen. Laws, ch. 93A, §2 (1997), the
Massachusetts Attorney General (Attorney General) promulgated regulations
governing the sale and advertisement of cigarettes, smokeless tobacco, and
cigars. The purpose of the cigarette and smokeless tobacco regulations is
"to eliminate deception and unfairness in the way cigarettes and smokeless
tobacco products are marketed, sold and distributed in Massachusetts in
order to address the incidence of cigarette smoking and smokeless tobacco
use by children under legal age .... [and] in order to prevent access to
such products by underage consumers." 940 Code of Mass. Regs. §21.01
(2000). The similar purpose of the cigar regulations is "to eliminate
deception and unfairness in the way cigars and little cigars are packaged,
marketed, sold and distributed in Massachusetts [so that] ... consumers
may be adequately informed about the health risks associated with cigar
smoking, its addictive properties, and the false perception that cigars
are a safe alternative to cigarettes ... [and so that] the incidence of
cigar use by children under legal age is addressed ... in order to prevent
access to such products by underage consumers." Ibid. The regulations have
a broader scope than the master settlement agreement, reaching
advertising, sales practices, and members of the tobacco industry not
covered by the agreement. The regulations place a variety of restrictions
on outdoor advertising, point-of-sale advertising, retail sales
transactions, transactions by mail, promotions, sampling of products, and
labels for cigars.
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The cigarette and smokeless tobacco regulations being challenged
before this Court provide:
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"(2) Retail Outlet Sales Practices. Except as otherwise provided in
[§21.04(4)], it shall be an unfair or deceptive act or practice for any
person who sells or distributes cigarettes or smokeless tobacco products
through a retail outlet located within Massachusetts to engage in any of
the following retail outlet sales practices:
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"(c) Using self-service displays of cigarettes or smokeless tobacco
products;
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"(d) Failing to place cigarettes and smokeless tobacco products out of
the reach of all consumers, and in a location accessible only to outlet
personnel." §§21.04(2)(c)-(d).
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"(5) Advertising Restrictions. Except as provided in [§21.04(6)], it
shall be an unfair or deceptive act or practice for any manufacturer,
distributor or retailer to engage in any of the following
practices:
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"(a) Outdoor advertising, including advertising in enclosed stadiums
and advertising from within a retail establishment that is directed toward
or visible from the outside of the establishment, in any location that is
within a 1,000 foot radius of any public playground, playground area in a
public park, elementary school or secondary school;
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"(b) Point-of-sale advertising of cigarettes or smokeless tobacco
products any portion of which is placed lower than five feet from the
floor of any retail establishment which is located within a one thousand
foot radius of any public playground, playground area in a public park,
elementary school or secondary school, and which is not an adult-only
retail establishment." §§21.04(5)(a)-(b).
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The cigar regulations that are still at issue provide:
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"(1) Retail Sales Practices. Except as otherwise provided in
[§22.06(4)], it shall be an unfair or deceptive act or practice for any
person who sells or distributes cigars or little cigars directly to
consumers within Massachusetts to engage in any of the following
practices:
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"(a) sampling of cigars or little cigars or promotional give-aways of
cigars or little cigars." §21.06(1)(a).
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"(2) Retail Outlet Sales Practices. Except as otherwise provided in
[§22.06(4)], it shall be an unfair or deceptive act or practice for any
person who sells or distributes cigars or little cigars through a retail
outlet located within Massachusetts to engage in any of the following
retail outlet sales practices:
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"(c) Using self-service displays of cigars or little
cigars;
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"(d) Failing to place cigars and little cigars out of the reach of all
consumers, and in a location accessible only to outlet personnel."
§§22.06(2)(c)-(d).
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"(5) Advertising Restrictions. Except as provided in [§22.06(6)], it
shall be an unfair or deceptive act or practice for any manufacturer,
distributor or retailer to engage in any of the following
practices:
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"(a) Outdoor advertising of cigars or little cigars, including
advertising in enclosed stadiums and advertising from within a retail
establishment that is directed toward or visible from the outside of the
establishment, in any location within a 1,000 foot radius of any public
playground, playground area in a public park, elementary school or
secondary school;
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"(b) Point-of-sale advertising of cigars or little cigars any portion
of which is placed lower than five feet from the floor of any retail
establishment which is located within a one thousand foot radius of any
public playground, playground area in a public park, elementary school or
secondary school, and which is not an adult-only retail establishment."
§§22.06(5)(a)- (b).
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The term "advertisement" is defined as:
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"any oral, written, graphic, or pictorial statement or representation,
made by, or on behalf of, any person who manufactures, packages, imports
for sale, distributes or sells within Massachusetts [tobacco products],
the purpose or effect of which is to promote the use or sale of the
product. Advertisement includes, without limitation, any picture, logo,
symbol, motto, selling message, graphic display, visual image,
recognizable color or pattern of colors, or any other indicia of product
identification identical or similar to, or identifiable with, those used
for any brand of [tobacco product]. This includes, without limitation,
utilitarian items and permanent or semi-permanent fixtures with such
indicia of product identification such as lighting fixtures, awnings,
display cases, clocks and door mats, but does not include utilitarian
items with a volume of 200 cubic inches or less." §§21.03,
22.03.
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Before the effective date of the regulations, February 1, 2000,
members of the tobacco industry sued the Attorney General in the United
States District Court for the District of Massachusetts. Four cigarette
manufacturers (Lorillard Tobacco Company, Brown & Williamson Tobacco
Corporation, R. J. Reynolds Tobacco Company, and Philip Morris
Incorporated), a maker of smokeless tobacco products (U. S. Smokeless
Tobacco Company), and several cigar manufacturers and retailers claimed
that many of the regulations violate the Commerce Clause, the Supremacy
Clause, the First and Fourteenth Amendments, and Rev. Stat. §1979, 42 U.
S. C. §1983. The parties sought summary judgment. 76 F. Supp. 2d 124, 127
(1999); 84 F. Supp. 2d 180, 183 (2000).
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In its first ruling, the District Court considered the Supremacy
Clause claim that the FCLAA, 15 U. S. C. §1331 et seq., pre-empts the
cigarette advertising regulations. 76 F. Supp. 2d, at 128-134. The FCLAA
prescribes the health warnings that must appear on packaging and in
advertisements for cigarettes. The FCLAA contains a pre-emption provision
that prohibits a State from imposing any "requirement or prohibition based
on smoking and health ... with respect to the advertising or promotion of
... cigarettes." §1334(b). The FCLAA's pre-emption provision does not
cover smokeless tobacco or cigars.
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The District Court explained that the central question for purposes of
pre-emption is whether the regulations create a predicate legal duty based
on smoking and health. The court reasoned that to read the pre-emption
provision to proscribe any state advertising regulation enacted due to
health concerns about smoking would expand Congress' purpose beyond a
reasonable scope and leave States powerless to regulate in the area. The
court concluded that restrictions on the location of advertising are not
based on smoking and health and thus are not pre-empted by the FCLAA. The
District Court also concluded that a provision that permitted retailers to
display a black and white "tombstone" sign reading "Tobacco Products Sold
Here," 940 Code of Mass. Regs. §21.04(6) (2000), was pre-empted by the
FCLAA.
|
| [55] |
In a separate ruling, the District Court considered the claim that the
Attorney General's regulations violate the First Amendment. 84 F. Supp.
2d, at 183-196. Rejecting petitioners' argument that strict scrutiny
should apply, the court applied the four-part test of Central Hudson Gas
& Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980),
for commercial speech. The court reasoned that the Attorney General had
provided an adequate basis for regulating cigars and smokeless tobacco as
well as cigarettes because of the similarities among the products. The
court held that the outdoor advertising regulations, which prohibit
outdoor advertising within 1,000 feet of a school or playground, do not
violate the First Amendment because they advance a substantial government
interest and are narrowly tailored to suppress no more speech than
necessary. The court concluded that the sales practices regulations, which
restrict the location and distribution of tobacco products, survive
scrutiny because they do not implicate a significant speech interest. The
court invalidated the point-of-sale advertising regulations, which require
that indoor advertising be placed no lower than five feet from the floor,
finding that the Attorney General had not provided sufficient
justification for that restriction. The District Court's ruling with
respect to the cigar warning requirements and the Commerce Clause is not
before this Court.
|
| [56] |
The United States Court of Appeals for the First Circuit issued a stay
pending appeal, App. 8-9, and affirmed in part and reversed in part the
District Court's judgment, Consolidated Cigar Corp. v. Reilly, 218 F. 3d
30 (2000). With respect to the Supremacy Clause, the Court of Appeals
affirmed the District Court's ruling that the Attorney General's cigarette
advertising regulations are not pre-empted by the FCLAA. The First Circuit
was persuaded by the reasoning of the Second and Seventh Circuits, which
had concluded that the FCLAA's pre-emption provision is ambiguous, and
held that the provision pre-empts regulations of the content, but not the
location, of cigarette advertising. See Greater New York Metropolitan Food
Council, Inc. v. Giuliani, 195 F. 3d 100, 104-110 (CA2 1999); Federation
of Advertising Industry Representatives, Inc. v. Chicago, 189 F. 3d 633,
636-640 (CA7 1999).
|
| [57] |
With respect to the First Amendment, the Court of Appeals applied the
Central Hudson test. 447 U. S. 557 (1980). The court held that the outdoor
advertising regulations do not violate the First Amendment. The court
concluded that the restriction on outdoor advertising within 1,000 feet of
a school or playground directly advances the State's substantial interest
in preventing tobacco use by minors. The court also found that the outdoor
advertising regulations restrict no more speech than necessary, reasoning
that the distance chosen by the Attorney General is the sort of
determination better suited for legislative and executive decisionmakers
than courts. The Court of Appeals reversed the District Court's
invalidation of the point-of-sale advertising regulations, again
concluding that the Attorney General is better suited to determine what
restrictions are necessary. The Court of Appeals also held that the sales
practices regulations are valid under the First Amendment. The court found
that the regulations directly advance the State's interest in preventing
minors' access to tobacco products and that the regulations are narrowly
tailored because retailers have a variety of other means to present the
packaging of their products and to allow customers to examine the
products.
|
| [58] |
As for the argument that smokeless tobacco and cigars are different
from cigarettes, the court expressed some misgivings about equating all
tobacco products, but ultimately decided that the Attorney General had
presented sufficient evidence with respect to all three products to
regulate them similarly. The Court of Appeals' decision with respect to
the cigar warning requirements and the Commerce Clause is not before this
Court.
|
| [59] |
The Court of Appeals stayed its mandate pending disposition of a
petition for a writ of certiorari. App. 13. The cigarette manufacturers
and U. S. Smokeless Tobacco Company filed a petition, challenging the
Court of Appeals' decision with respect to the outdoor and point-of-sale
advertising regulations on pre-emption and First Amendment grounds, and
the sales practices regulations on First Amendment grounds. The cigar
companies filed a separate petition, again raising a First Amendment
challenge to the outdoor advertising, point-of-sale advertising, and sales
practices regulations. We granted both petitions, 531 U. S. 1068 (2001),
to resolve the conflict among the Courts of Appeals with respect to
whether the FCLAA pre-empts cigarette advertising regulations like those
at issue here, cf. Lindsey v. Tacoma-Pierce County Health Dept., 195 F. 3d
1065 (CA9 1999), and to decide the important First Amendment issues
presented in these cases.
|
| [60] |
II.
|
| [61] |
Before reaching the First Amendment issues, we must decide to what
extent federal law pre-empts the Attorney General's regulations. The
cigarette petitioners contend that the FCLAA, 15 U. S. C. §1331 et seq.,
pre-empts the Attorney General's cigarette advertising
regulations.
|
| [62] |
A.
|
| [63] |
Article VI of the United States Constitution commands that the laws of
the United States "shall be the supreme Law of the Land; ... any Thing in
the Constitution or Laws of any State to the Contrary notwithstanding."
Art. VI, cl. 2. See also McCulloch v. Maryland, 4 Wheat. 316, 427 (1819)
("It is of the very essence of supremacy, to remove all obstacles to its
action within its own sphere, and so to modify every power vested in
subordinate governments"). This relatively clear and simple mandate has
generated considerable discussion in cases where we have had to discern
whether Congress has pre-empted state action in a particular area. State
action may be foreclosed by express language in a congressional enactment,
see, e.g., Cipollone v. Liggett Group, Inc., 505 U. S. 504, 517 (1992), by
implication from the depth and breadth of a congressional scheme that
occupies the legislative field, see, e.g., Fidelity Fed. Sav. & Loan
Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982), or by implication
because of a conflict with a congressional enactment, see, e.g., Geier v.
American Honda Motor Co., 529 U. S. 861, 869-874 (2000).
|
| [64] |
In the FCLAA, Congress has crafted a comprehensive federal scheme
governing the advertising and promotion of cigarettes. The FCLAA's
pre-emption provision provides:
|
| [65] |
"(a) Additional statements
|
| [66] |
"No statement relating to smoking and health, other than the statement
required by section 1333 of this title, shall be required on any cigarette
package.
|
| [67] |
"(b) State regulations
|
| [68] |
"No requirement or prohibition based on smoking and health shall be
imposed under State law with respect to the advertising or promotion of
any cigarettes the packages of which are labeled in conformity with the
provisions of this chapter." 15 U. S. C. §1334.
|
| [69] |
The FCLAA's pre-emption provision does not cover smokeless tobacco or
cigars.
|
| [70] |
In this case, our task is to identify the domain expressly pre-empted,
see Cipollone, supra, at 517, because "an express definition of the
pre-emptive reach of a statute . . . supports a reasonable inference ...
that Congress did not intend to pre-empt other matters," Freightliner
Corp. v. Myrick, 514 U. S. 280, 288 (1995). Congressional purpose is the
"ultimate touchstone" of our inquiry. Cipollone, supra, at 516 (internal
quotation marks omitted). Because "federal law is said to bar state action
in [a] fiel[d] of traditional state regulation," namely, advertising, see
Packer Corp. v. Utah, 285 U. S. 105, 108 (1932), we "wor[k] on the
assumption that the historic police powers of the States [a]re not to be
superseded by the Federal Act unless that [is] the clear and manifest
purpose of Congress." California Div. of Labor Standards Enforcement v.
Dillingham Constr., N. A., Inc., 519 U. S. 316, 325 (1997) (internal
quotation marks omitted). See also Medtronic, Inc. v. Lohr, 518 U. S. 470,
475 (1996).
|
| [71] |
Our analysis begins with the language of the statute. Hughes Aircraft
Co. v. Jacobson, 525 U. S. 432, 438 (1999). In the pre-emption provision,
Congress unequivocally precludes the requirement of any additional
statements on cigarette packages beyond those provided in §1333. 15 U. S.
C. §1334(a). Congress further precludes States or localities from imposing
any requirement or prohibition based on smoking and health with respect to
the advertising and promotion of cigarettes. §1334(b). Without question,
the second clause is more expansive than the first; it employs far more
sweeping language to describe the state action that is pre-empted. We must
give meaning to each element of the pre-emption provision. We are aided in
our interpretation by considering the predecessor pre-emption provision
and the circumstances in which the current language was adopted. See
Medtronic, supra, at 486; McCarthy v. Bronson, 500 U. S. 136, 139 (1991);
K mart Corp. v. Cartier, Inc., 486 U. S. 281, 291 (1988).
|
| [72] |
In 1964, the groundbreaking Report of the Surgeon General's Advisory
Committee on Smoking and Health concluded that "[c]igarette smoking is a
health hazard of sufficient importance in the United States to warrant
appropriate remedial action." Department of Health, Education, and
Welfare, U. S. Surgeon General's Advisory Committee, Smoking and Health
33. In 1965, Congress enacted the FCLAA as a proactive measure in the face
of impending regulation by federal agencies and the States. Pub. L. 89-92,
79 Stat. 282. See also Cipollone, supra, at 513-515. The purpose of the
FCLAA was twofold: to inform the public adequately about the hazards of
cigarette smoking, and to protect the national economy from interference
due to diverse, non-uniform, and confusing cigarette labeling and
advertising regulations with respect to the relationship between smoking
and health. Pub. L. 89-92, §2. The FCLAA prescribed a label for cigarette
packages: "Caution: Cigarette Smoking May Be Hazardous to Your Health."
§4. The FCLAA also required the Secretary of Health, Education, and
Welfare (HEW) and the Federal Trade Commission (FTC) to report annually to
Congress about the health consequences of smoking and the advertising and
promotion of cigarettes. §5.
|
| [73] |
Section 5 of the FCLAA included a pre-emption provision in which
"Congress spoke precisely and narrowly." Cipollone, supra, at 518.
Subsection 5(a) prohibited any requirement of additional statements on
cigarette packaging. Subsection 5(b) provided that "[n]o statement
relating to smoking and health shall be required in the advertising of any
cigarettes the packages of which are labeled in conformity with the
provisions of this Act." Section 10 of the FCLAA set a termination date of
July 1, 1969 for these provisions. As we have previously explained, "on
their face, [the pre-emption] provisions merely prohibited state and
federal rulemaking bodies from mandating particular cautionary statements
on cigarette labels [subsection (a)] or in cigarette advertisements
[subsection (b)]." Cipollone, 505 U. S., at 518.
|
| [74] |
The FCLAA was enacted with the expectation that Congress would
re-examine it in 1969 in light of the developing information about
cigarette smoking and health. H. R. Rep. No. 586, 89th Cong., 1st Sess., 6
(1965); 111 Cong. Rec. 16541 (1965). In the intervening years, Congress
received reports and recommendations from the HEW Secretary and the FTC.
S. Rep. No. 91-566, pp. 2-6 (1969). The HEW Secretary recommended that
Congress strengthen the warning, require the warning on all packages and
in advertisements, and publish tar and nicotine levels on packages and in
advertisements. Id., at 4. The FTC made similar and additional
recommendations. The FTC sought a complete ban on radio and television
advertising, a requirement that broadcasters devote time for health hazard
announcements concerning smoking, and increased funding for public
education and research about smoking. Id., at 6. The FTC urged Congress
not to continue to prevent federal agencies from regulating cigarette
advertising. Id., at 10. In addition, the Federal Communications
Commission (FCC) had concluded that advertising which promoted the use of
cigarettes created a duty in broadcast stations to provide information
about the hazards of cigarette smoking. Id., at 6-7.
|
| [75] |
In 1969, House and Senate committees held hearings about the health
effects of cigarette smoking and advertising by the cigarette industry.
The bill that emerged from the House of Representatives strengthened the
warning and maintained the pre-emption provision. The Senate amended that
bill, adding the ban on radio and television advertising, and changing the
pre-emption language to its present form. H. R. Conf. Rep. No. 91-897, pp.
4-5 (1970).
|
| [76] |
The final result was the Public Health Cigarette Smoking Act of 1969,
in which Congress, following the Senate's amendments, made three
significant changes to the FCLAA. Pub. L. 91-222, §2, 84 Stat. 87. First,
Congress drafted a new label that read: "Warning: The Surgeon General Has
Determined That Cigarette Smoking Is Dangerous to Your Health." FCLAA, §4.
Second, Congress declared it unlawful to advertise cigarettes on any
medium of electronic communication subject to the jurisdiction of the FCC.
§6. Finally, Congress enacted the current pre-emption provision, which
proscribes any "requirement or prohibition based on smoking and health ...
imposed under State law with respect to the advertising or promotion" of
cigarettes. §5(b). The new subsection 5(b) did not pre-empt regulation by
federal agencies, freeing the FTC to impose warning requirements in
cigarette advertising. See Cipollone, supra, at 515. The new pre-emption
provision, like its predecessor, only applied to cigarettes, and not other
tobacco products.
|
| [77] |
In 1984, Congress again amended the FCLAA in the Comprehensive Smoking
Education Act. Pub. L. 98-474, 98 Stat. 2200. The purpose of the Act was
to "provide a new strategy for making Americans more aware of any adverse
health effects of smoking, to assure the timely and widespread
dissemination of research findings and to enable individuals to make
informed decisions about smoking." §2. The Act established a series of
warnings to appear on a rotating basis on cigarette packages and in
cigarette advertising, §4, and directed the Health and Human Services
Secretary to create and implement an educational program about the health
effects of cigarette smoking, §3.
|
| [78] |
The FTC has continued to report on trade practices in the cigarette
industry. In 1999, the first year since the master settlement agreement,
the FTC reported that the cigarette industry expended $8.24 billion on
advertising and promotions, the largest expenditure ever. FTC, Cigarette
Report for 1999, p. 1 (2000). Substantial increases were found in
point-of-sale promotions, payments made to retailers to facilitate sales,
and retail offers such as buy one, get one free, or product giveaways.
Id., at 4-5. Substantial decreases, however, were reported for outdoor
advertising and transit advertising. Id., at 2. Congress and federal
agencies continue to monitor advertising and promotion practices in the
cigarette industry.
|
| [79] |
The scope and meaning of the current pre-emption provision become
clearer once we consider the original pre-emption language and the
amendments to the FCLAA. Without question, "the plain language of the
pre-emption provision in the 1969 Act is much broader." Cipollone, 505 U.
S., at 520. Rather than preventing only "statements," the amended
provision reaches all "requirement[s] or prohibition[s] ... imposed under
State law." And, although the former statute reached only statements "in
the advertising," the current provision governs "with respect to the
advertising or promotion" of cigarettes. See ibid. Congress expanded the
pre-emption provision with respect to the States, and at the same time, it
allowed the FTC to regulate cigarette advertising. Congress also
prohibited cigarette advertising in electronic media altogether. Viewed in
light of the context in which the current pre-emption provision was
adopted, we must determine whether the FCLAA pre-empts Massachusetts'
regulations governing outdoor and point-of-sale advertising of
cigarettes.
|
| [80] |
B.
|
| [81] |
The Court of Appeals acknowledged that the FCLAA pre-empts any
"requirement or prohibition based on smoking and health ... with respect
to the advertising or promotion of ... cigarettes," 15 U. S. C. §1334(b),
but concluded that the FCLAA does not nullify Massachusetts' cigarette
advertising regulations. The court concentrated its analysis on whether
the regulations are "with respect to" advertising and promotion, relying
on two of its sister Circuits to conclude that the FCLAA only pre-empts
regulations of the content of cigarette advertising. The Court of Appeals
also reasoned that the Attorney General's regulations are a form of
zoning, a traditional area of state power; therefore the presumption
against pre-emption applied.
|
| [82] |
The cigarette petitioners maintain that the Court of Appeals' "with
respect to" analysis is inconsistent with the FCLAA's statutory text and
legislative history, and gives the States license to prohibit almost all
cigarette advertising. Petitioners also maintain that there is no basis
for construing the pre-emption provision to prohibit only content-based
advertising regulations.
|
| [83] |
Although they support the Court of Appeals' result, the Attorney
General and United States as amicus curiae do not fully endorse that
court's textual analysis of the pre-emption provision. Instead, they
assert that the cigarette advertising regulations are not pre-empted
because they are not "based on smoking and health." The Attorney General
and the United States also contend that the regulations are not pre-empted
because they do not prescribe the content of cigarette advertising and
they fall squarely within the State's traditional powers to control the
location of advertising and to protect the welfare of
children.
|
| [84] |
Turning first to the language in the pre-emption provision relied upon
by the Court of Appeals, we reject the notion that the Attorney General's
cigarette advertising regulations are not "with respect to" advertising
and promotion. We disagree with the Court of Appeals' analogy to the
Employee Retirement Income Security Act of 1974 (ERISA). In some cases
concerning ERISA's pre-emption of state law, the Court has had to decide
whether a particular state law "relates to" an employee benefit plan
covered by ERISA even though the state law makes no express reference to
such a plan. See, e.g., California Div. of Labor Standards Enforcement v.
Dillingham Constr., N. A., Inc., 519 U. S., at 324-325. Here, however,
there is no question about an indirect relationship between the
regulations and cigarette advertising because the regulations expressly
target cigarette advertising. 940 Code of Mass. Regs. §21.04(5)
(2000).
|
| [85] |
Before this Court, the Attorney General focuses on a different phrase
in the pre-emption provision: "based on smoking and health." The Attorney
General argues that the cigarette advertising regulations are not "based
on smoking and health," because they do not involve health-related content
in cigarette advertising but instead target youth exposure to cigarette
advertising. To be sure, Members of this Court have debated the precise
meaning of "based on smoking and health," see Cipollone, supra, at 529, n.
7 (plurality opinion), but we cannot agree with the Attorney General's
narrow construction of the phrase.
|
| [86] |
As Congress enacted the current pre-emption provision, Congress did
not concern itself solely with health warnings for cigarettes. In the 1969
amendments, Congress not only enhanced its scheme to warn the public about
the hazards of cigarette smoking, but also sought to protect the public,
including youth, from being inundated with images of cigarette smoking in
advertising. In pursuit of the latter goal, Congress banned electronic
media advertising of cigarettes. And to the extent that Congress
contemplated additional targeted regulation of cigarette advertising, it
vested that authority in the FTC.
|
| [87] |
The context in which Congress crafted the current pre-emption
provision leads us to conclude that Congress prohibited state cigarette
advertising regulations motivated by concerns about smoking and health.
Massachusetts has attempted to address the incidence of underage cigarette
smoking by regulating advertising, see 940 Code of Mass. Regs. §21.01
(2000), much like Congress' ban on cigarette advertising in electronic
media. At bottom, the concern about youth exposure to cigarette
advertising is intertwined with the concern about cigarette smoking and
health. Thus the Attorney General's attempt to distinguish one concern
from the other must be rejected.
|
| [88] |
The Attorney General next claims that the State's outdoor and
point-of-sale advertising regulations for cigarettes are not pre-empted
because they govern the location, and not the content, of advertising.
This is also Justice Stevens' main point with respect to pre-emption.
Post, at 6 (opinion concurring in part and dissenting in
part).
|
| [89] |
The content versus location distinction has some surface appeal. The
pre-emption provision immediately follows the section of the FCLAA that
prescribes warnings. See 15 U. S. C. §§1333, 1334. The pre-emption
provision itself refers to cigarettes "labeled in conformity with" the
statute. §1334(b). But the content/location distinction cannot be squared
with the language of the pre-emption provision, which reaches all
"requirements" and "prohibitions" "imposed under State law." A distinction
between the content of advertising and the location of advertising in the
FCLAA also cannot be reconciled with Congress' own location-based
restriction, which bans advertising in electronic media, but not
elsewhere. See §1335. We are not at liberty to pick and choose which
provisions in the legislative scheme we will consider, see post, at 7, n.
5 (opinion of Stevens, J.), but must examine the FCLAA as a
whole.
|
| [90] |
Moreover, any distinction between the content and location of
cigarette advertising collapses once the implications of that approach are
fully considered. At oral argument, the Attorney General was pressed to
explain what types of state regulations of cigarette advertising, in his
view, are pre-empted by the FCLAA. The Attorney General maintained that a
state law that required cigarette retailers to remove the word "tobacco"
from advertisements, or required cigarette billboards to be blank, would
be pre-empted if it were a regulation of "health-related content." Tr. of
Oral Arg. 41, 42. The Attorney General also maintained, however, that a
complete ban on all cigarette advertising would not be pre-empted because
Congress did not intend to invade local control over zoning. Id., at
42-44. The latter position clearly follows from the factual distinction
between content and location, but it finds no support in the text of the
FCLAA's pre-emption provision. We believe that Congress wished to ensure
that "a State could not do through negative mandate (e.g., banning all
cigarette advertising) that which it already was forbidden to do through
positive mandate (e.g., mandating particular cautionary statements)."
Cipollone, 505 U. S., at 539 (Blackmun, J., joined by Kennedy and Souter,
JJ., concurring in part and dissenting in part). See also Vango Media,
Inc. v. New York, 34 F. 3d 68 (CA2 1994) (holding pre-empted a regulation
that required one public health message for every four cigarette
advertisements).
|
| [91] |
Justice Stevens, post, at 6-10, maintains that Congress did not intend
to displace state regulation of the location of cigarette advertising.
There is a critical distinction, however, between generally applicable
zoning regulations, see infra, at 21-22, and regulations targeting
cigarette advertising. The latter type of regulation, which is inevitably
motivated by concerns about smoking and health, squarely contradicts the
FCLAA. The FCLAA's comprehensive warnings, advertising restrictions, and
pre-emption provision would make little sense if a State or locality could
simply target and ban all cigarette advertising.
|
| [92] |
Justice Stevens finds it ironic that we conclude that "federal law
precludes States and localities from protecting children from dangerous
products within 1,000 feet of a school," in light of our prior conclusion
that the "Federal Government lacks the constitutional authority to impose
a similarly-motivated ban" in United States v. Lopez, 514 U. S. 549
(1995). Post, at 10, n. 8. Our holding is not as broad as the dissent
states; we hold only that the FCLAA pre-empts state regulations targeting
cigarette advertising. States remain free to enact generally applicable
zoning regulations, and to regulate conduct with respect to cigarette use
and sales. Infra, at 21-22. The reference to Lopez is also inapposite. In
Lopez, we held that Congress exceeded the limits of its Commerce Clause
power in the Gun-Free School Zones Act of 1990, which made it a federal
crime to possess a firearm in a school zone. 514 U. S., at 553-568. This
case, by contrast, concerns the Supremacy Clause and the doctrine of
pre-emption as applied in a case where Congress expressly precluded
certain state regulations of cigarette advertising. Massachusetts did not
raise a constitutional challenge to the FCLAA, and we are not confronted
with whether Congress exceeded its constitutionally delegated authority in
enacting the FCLAA.
|
| [93] |
In sum, we fail to see how the FCLAA and its pre-emption provision
permit a distinction between the specific concern about minors and
cigarette advertising and the more general concern about smoking and
health in cigarette advertising, especially in light of the fact that
Congress crafted a legislative solution for those very concerns. We also
conclude that a distinction between state regulation of the location as
opposed to the content of cigarette advertising has no foundation in the
text of the pre-emption provision. Congress pre-empted state cigarette
advertising regulations like the Attorney General's because they would
upset federal legislative choices to require specific warnings and to
impose the ban on cigarette advertising in electronic media in order to
address concerns about smoking and health. Accordingly, we hold that the
Attorney General's outdoor and point-of-sale advertising regulations
targeting cigarettes are pre-empted by the FCLAA.
|
| [94] |
C.
|
| [95] |
Although the FCLAA prevents States and localities from imposing
special requirements or prohibitions "based on smoking and health" "with
respect to the advertising or promotion" of cigarettes, that language
still leaves significant power in the hands of States to impose generally
applicable zoning regulations and to regulate conduct. As we noted in
Cipollone, "each phrase within [the provision] limits the universe of
[state action] pre-empted by the statute." 505 U. S., at 524 (plurality
opinion).
|
| [96] |
For instance, the FCLAA does not restrict a State or locality's
ability to enact generally applicable zoning restrictions. We have
recognized that state interests in traffic safety and esthetics may
justify zoning regulations for advertising. See Metromedia, Inc. v. San
Diego, 453 U. S. 490, 507-508 (1981). See also St. Louis Poster
Advertising Co. v. St. Louis, 249 U. S. 269, 274 (1919); Thomas Cusack Co.
v. Chicago, 242 U. S. 526, 529-531 (1917). Although Congress has taken
into account the unique concerns about cigarette smoking and health in
advertising, there is no indication that Congress intended to displace
local community interests in general regulations of the location of
billboards or large marquee advertising, or that Congress intended
cigarette advertisers to be afforded special treatment in that regard.
Restrictions on the location and size of advertisements that apply to
cigarettes on equal terms with other products appear to be outside the
ambit of the pre-emption provision. Such restrictions are not "based on
smoking and health."
|
| [97] |
The FCLAA also does not foreclose all state regulation of conduct as
it relates to the sale or use of cigarettes. The FCLAA's pre-emption
provision explicitly governs state regulations of "advertising or
promotion."*fn1 Accordingly, the FCLAA does not pre-empt state laws
prohibiting cigarette sales to minors. To the contrary, there is an
established congressional policy that supports such laws; Congress has
required States to prohibit tobacco sales to minors as a condition of
receiving federal block grant funding for substance abuse treatment
activities. 106 Stat. 394, 388, 42 U. S. C. §§300x-26(a)(1),
300x-21.
|
| [98] |
In Massachusetts, it is illegal to sell or distribute tobacco products
to persons under the age of 18. Mass. Gen. Laws, ch. 270, §6 (2000).
Having prohibited the sale and distribution of tobacco products to minors,
the State may prohibit common inchoate offenses that attach to criminal
conduct, such as solicitation, conspiracy, and attempt. Cf. Central Hudson
Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U. S. 557,
563-564 (1980); Carey v. Population Servs. Int'l, 431 U. S. 678, 701
(1977); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U. S. 748, 772 (1976); 60 Fed. Reg. 41330-41332 (1995) (citing
evidence that industry may be attempting to induce individuals under 18 to
smoke cigarettes). States and localities also have at their disposal other
means of regulating conduct to ensure that minors do not obtain
cigarettes. See Part III-D, infra.
|
| [99] |
D.
|
| [100] |
The smokeless tobacco petitioners argue that if the State's outdoor
and point-of-sale advertising regulations for cigarettes are pre-empted,
then the same advertising regulations with respect to smokeless tobacco
must be invalidated because they cannot be severed from the cigarette
provisions. Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos.
00-596 and 00-597, p. 4, n. 5. The District Court did not reach the
severability issue with respect to the advertising provisions that are
before this Court. 76 F. Supp. 2d, at 134, n. 11. The Court of Appeals
also did not reach severability because that court likewise concluded that
the cigarette advertising regulations were not pre-empted. 218 F. 3d, at
37, n. 3. We decline to reach an issue that was not decided below.
National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470
(1999).
|
| [101] |
III.
|
| [102] |
By its terms, the FCLAA's pre-emption provision only applies to
cigarettes. Accordingly, we must evaluate the smokeless tobacco and cigar
petitioners' First Amendment challenges to the State's outdoor and
point-of-sale advertising regulations. The cigarette petitioners did not
raise a pre-emption challenge to the sales practices regulations. Thus, we
must analyze the cigarette as well as the smokeless tobacco and cigar
petitioners' claim that certain sales practices regulations for tobacco
products violate the First Amendment.
|
| [103] |
A.
|
| [104] |
For over 25 years, the Court has recognized that commercial speech
does not fall outside the purview of the First Amendment. See, e.g.,
Virginia Bd. of Pharmacy, supra, at 762. Instead, the Court has afforded
commercial speech a measure of First Amendment protection " `commensurate'
" with its position in relation to other constitutionally guaranteed
expression. See, e.g., Florida Bar v. Went For It, Inc., 515 U. S. 618,
623 (1995) (quoting Board of Trustees of State Univ. of N. Y. v. Fox, 492
U. S. 469, 477 (1989)). In recognition of the "distinction between speech
proposing a commercial transaction, which occurs in an area traditionally
subject to government regulation, and other varieties of speech," Central
Hudson, supra, at 562 (internal quotation marks omitted), we developed a
framework for analyzing regulations of commercial speech that is
"substantially similar" to the test for time, place, and manner
restrictions, Board of Trustees of State Univ. of N. Y. v. Fox, supra, at
477. The analysis contains four elements:
|
| [105] |
"At the outset, we must determine whether the expression is protected
by the First Amendment. For commercial speech to come within that
provision, it at least must concern lawful activity and not be misleading.
Next, we ask whether the asserted governmental interest is substantial. If
both inquiries yield positive answers, we must determine whether the
regulation directly advances the governmental interest asserted, and
whether it is not more extensive than is necessary to serve that
interest." Central Hudson, supra, at 566.
|
| [106] |
Petitioners urge us to reject the Central Hudson analysis and apply
strict scrutiny. They are not the first litigants to do so. See, e.g.,
Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S.
173, 184 (1999). Admittedly, several Members of the Court have expressed
doubts about the Central Hudson analysis and whether it should apply in
particular cases. See, e.g., Greater New Orleans, supra, at 197 (Thomas,
J., concurring in judgment); 44 Liquormart, Inc. v. Rhode Island, 517 U.
S. 484, 501, 510-514 (1996) (joint opinion of Stevens, Kennedy, and
Ginsburg, JJ.); id., at 517 (Scalia, J. concurring in part and concurring
in judgment); id., at 518 (Thomas, J., concurring in part and concurring
in judgment). But here, as in Greater New Orleans, we see "no need to
break new ground. Central Hudson, as applied in our more recent commercial
speech cases, provides an adequate basis for decision." 527 U. S., at
184.
|
| [107] |
Only the last two steps of Central Hudson's four-part analysis are at
issue here. The Attorney General has assumed for purposes of summary
judgment that petitioners' speech is entitled to First Amendment
protection. 218 F. 3d., at 43; 84 F. Supp. 2d, at 185-186. With respect to
the second step, none of the petitioners contests the importance of the
State's interest in preventing the use of tobacco products by minors.
Brief for Petitioners Lorillard Tobacco Co. et al. in No. 00-596, p. 41;
Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00-596 and
00-597, at 16; Brief for Petitioners Altadis U. S. A. Inc. et al. in No.
00-597, p. 8.
|
| [108] |
The third step of Central Hudson concerns the relationship between the
harm that underlies the State's interest and the means identified by the
State to advance that interest. It requires that
|
| [109] |
"the speech restriction directly and materially advanc[e] the asserted
governmental interest. `This burden is not satisfied by mere speculation
or conjecture; rather, a governmental body seeking to sustain a
restriction on commercial speech must demonstrate that the harms it
recites are real and that its restriction will in fact alleviate them to a
material degree.' " Greater New Orleans, supra, at 188 (quoting Edenfield
v. Fane, 507 U. S. 761, 770-771 (1993)).
|
| [110] |
We do not, however, require that "empirical data come ... accompanied
by a surfeit of background information... [W]e have permitted litigants to
justify speech restrictions by reference to studies and anecdotes
pertaining to different locales altogether, or even, in a case applying
strict scrutiny, to justify restrictions based solely on history,
consensus, and `simple common sense.' " Florida Bar v. Went For It, Inc.,
515 U. S., at 628 (citations and internal quotation marks
omitted).
|
| [111] |
The last step of the Central Hudson analysis "complements" the third
step, "asking whether the speech restriction is not more extensive than
necessary to serve the interests that support it." Greater New Orleans,
supra, at 188. We have made it clear that "the least restrictive means" is
not the standard; instead, the case law requires a reasonable " `fit
between the legislature's ends and the means chosen to accomplish those
ends, ... a means narrowly tailored to achieve the desired objective.' "
Went For It, Inc., supra, at 632 (quoting Board of Trustees of State Univ.
of N. Y. v. Fox, 492 U. S., at 480). Focusing on the third and fourth
steps of the Central Hudson analysis, we first address the outdoor
advertising and point-of-sale advertising regulations for smokeless
tobacco and cigars. We then address the sales practices regulations for
all tobacco products.
|
| [112] |
B.
|
| [113] |
The outdoor advertising regulations prohibit smokeless tobacco or
cigar advertising within a 1,000-foot radius of a school or playground.
940 Code of Mass. Regs. §§21.04(5)(a), 22.06(5)(a) (2000). The District
Court and Court of Appeals concluded that the Attorney General had
identified a real problem with underage use of tobacco products, that
limiting youth exposure to advertising would combat that problem, and that
the regulations burdened no more speech than necessary to accomplish the
State's goal. 218 F. 3d, at 44-53; 84 F. Supp. 2d, at 186-193. The
smokeless tobacco and cigar petitioners take issue with all of these
conclusions.
|
| [114] |
1.
|
| [115] |
The smokeless tobacco and cigar petitioners contend that the Attorney
General's regulations do not satisfy Central Hudson's third step. They
maintain that although the Attorney General may have identified a problem
with underage cigarette smoking, he has not identified an equally severe
problem with respect to underage use of smokeless tobacco or cigars. The
smokeless tobacco petitioner emphasizes the "lack of parity" between
cigarettes and smokeless tobacco. Brief for Petitioner U. S. Smokeless
Tobacco Co. in Nos. 00-596 and 00-597, at 19; Reply Brief for Petitioner
U. S. Smokeless Tobacco Co. in Nos. 00-596 and 00-597, pp. 4, 10-11. The
cigar petitioners catalogue a list of differences between cigars and other
tobacco products, including the characteristics of the products and
marketing strategies. Brief for Petitioners Altadis U. S. A. Inc. et al.
in No. 00-597, at 9-11. The petitioners finally contend that the Attorney
General cannot prove that advertising has a causal link to tobacco use
such that limiting advertising will materially alleviate any problem of
underage use of their products. Brief for Petitioner U. S. Smokeless
Tobacco Co. in Nos. 00-596 and 00-597, at 20-22; Brief for Petitioners
Altadis U. S. A. Inc. et al. in No. 00-597, at 9-16.
|
| [116] |
In previous cases, we have acknowledged the theory that product
advertising stimulates demand for products, while suppressed advertising
may have the opposite effect. See Rubin, 514 U. S., at 487; United States
v. Edge Broadcasting Co., 509 U. S. 418, 434 (1993); Central Hudson, 447
U. S., at 568-569. The Attorney General cites numerous studies to support
this theory in the case of tobacco products.
|
| [117] |
The Attorney General relies in part on evidence gathered by the Food
and Drug Administration (FDA) in its attempt to regulate the advertising
of cigarettes and smokeless tobacco. See Regulations Restricting the Sale
and Distribution of Cigarettes and Smokeless Tobacco Products to Protect
Children and Adolescents, FDA Proposed Rule, 60 Fed. Reg. 41314 (1995);
Regulations Restricting the Sale and Distribution of Cigarettes and
Smokeless Tobacco to Protect Children and Adolescents, FDA Final Rule, 61
Fed. Reg. 44396 (1996). The FDA promulgated the advertising regulations
after finding that the period prior to adulthood is when an overwhelming
majority of Americans first decide to use tobacco products, and that
advertising plays a crucial role in that decision. FDA Final Rule, 61 Fed.
Reg., at 44398-44399. We later held that the FDA lacks statutory authority
to regulate tobacco products. See FDA v. Brown & Williamson Tobacco
Corp., 529 U. S. 120 (2000). Nevertheless, the Attorney General relies on
the FDA's proceedings and other studies to support his decision that
advertising affects demand for tobacco products. Cf. Erie v. Pap's A. M.,
529 U. S. 277, 296 (2000) (plurality opinion) (cities and localities may
rely on evidence from other jurisdictions to demonstrate harmful secondary
effects of adult entertainment and to justify regulation); Barnes v. Glen
Theatre, Inc., 501 U. S. 560, 583-584 (1991) (Souter, J., concurring in
judgment) (same); Renton v. Playtime Theatres, Inc., 475 U. S. 41, 50-52
(1986) (same). See also Nixon v. Shrink Missouri Government PAC, 528 U. S.
377, 393, and n. 6 (2000) (discussing evidence of corruption and the
appearance of corruption in campaign finance).
|
| [118] |
In its rulemaking proceeding, the FDA considered several studies of
tobacco advertising and trends in the use of various tobacco products. The
Surgeon General's report and the Institute of Medicine's report found that
"there is sufficient evidence to conclude that advertising and labeling
play a significant and important contributory role in a young person's
decision to use cigarettes or smokeless tobacco products." 60 Fed. Reg.
41332. See also Pierce et al., Tobacco Industry Promotion of Cigarettes
and Adolescent Smoking, 279 JAMA 511, 514 (1998).
|
| [119] |
For instance, children smoke fewer brands of cigarettes than adults,
and those choices directly track the most heavily advertised brands,
unlike adult choices, which are more dispersed and related to pricing. FDA
Proposed Rule, 60 Fed. Reg. 41332. Another study revealed that 72% of 6
year olds and 52% of children ages 3 to 6 recognized "Joe Camel," the
cartoon anthropomorphic symbol of R. J. Reynolds' Camel brand cigarettes.
Id., at 41333. After the introduction of Joe Camel, Camel cigarettes'
share of the youth market rose from 4% to 13%. Id., at 41330. The FDA also
identified trends in tobacco consumption among certain populations, such
as young women, that correlated to the introduction and marketing of
products geared toward that population. Id., at 41333.
|
| [120] |
The FDA also made specific findings with respect to smokeless tobacco.
The FDA concluded that "[t]he recent and very large increase in the use of
smokeless tobacco products by young people and the addictive nature of
these products has persuaded the agency that these products must be
included in any regulatory approach that is designed to help prevent
future generations of young people from becoming addicted to
nicotine-containing tobacco products." Id., at 41318. Studies have
analyzed smokeless tobacco use by young people, discussing trends based on
gender, school grade, and locale. See, e.g., Boyd et al., Use of Smokeless
Tobacco among Children and Adolescents in the United States, 16
Preventative Medicine 402-418 (1987), Record, Doc. No. 38, Exh.
63.
|
| [121] |
Researchers tracked a dramatic shift in patterns of smokeless tobacco
use from older to younger users over the past 30 years. See, e.g., FDA
Proposed Rule, 60 Fed. Reg., at 41317; Tomar et al., Smokeless tobacco
brand preference and brand switching among US adolescents and young
adults, 4 Tobacco Control 67 (1995), Record, Doc. No. 38, Exh. 62;
Department of Health and Human Services, Preventing Tobacco Use Among
Young People: A Report of the Surgeon General 163 (1994), Record, Doc. No.
36, Exh. 1. In particular, the smokeless tobacco industry boosted sales
tenfold in the 1970s and 1980s by targeting young males. FDA Proposed
Rule, 60 Fed. Reg., at 41331. See also National Cancer Institute, Cigars:
Health Effects and Trends, Smoking and Tobacco Control Monograph No. 9, p.
16 (1998), Record, Doc. No. 39, Exh. 67. Another study documented the
targeting of youth through smokeless tobacco sales and advertising
techniques. Ernster, Advertising and Promotion of Smokeless Tobacco
Products, National Cancer Institute Monograph No. 8, pp. 87-93 (1989),
Record, Doc. No. 38, Exh. 66.
|
| [122] |
The Attorney General presents different evidence with respect to
cigars. There was no data on underage cigar use prior to 1996 because the
behavior was considered "uncommon enough not to be worthy of examination."
Smoking and Tobacco Control Monograph No. 9, at 13; FTC Report to
Congress: Cigar Sales and Advertising and Promotional Expenses for
Calendar Years 1996 and 1997, p. 9 (1999), Record, Doc. No. 39, Exh. 71.
In 1995, the FDA decided not to include cigars in its attempted regulation
of tobacco product advertising, explaining that "the agency does not
currently have sufficient evidence that these products are drug delivery
devices ... . FDA has focused its investigation of its authority over
tobacco products on cigarettes and smokeless tobacco products, and not on
pipe tobacco or cigars, because young people predominantly use cigarettes
and smokeless tobacco products." 60 Fed. Reg. 41322.
|
| [123] |
More recently, however, data on youth cigar use has emerged. The
National Cancer Institute concluded in its 1998 Monograph that the rate of
cigar use by minors is increasing and that, in some States, the cigar use
rates are higher than the smokeless tobacco use rates for minors. Smoking
and Tobacco Control Monograph No. 9, at 19, 42-51. In its 1999 Report to
Congress, the FTC concluded that "substantial numbers of adolescents are
trying cigars." FTC Report to Congress, at 9. See also Department of
Health and Human Services, Office of Inspector General, Youth Use of
Cigars: Patterns of Use and Perceptions of Risk (1999), Record, Doc. No.
39, Exh. 78.
|
| [124] |
Studies have also demonstrated a link between advertising and demand
for cigars. After Congress recognized the power of images in advertising
and banned cigarette advertising in electronic media, television
advertising of small cigars "increased dramatically in 1972 and 1973,"
"filled the void left by cigarette advertisers," and "sales ... soared."
Smoking and Tobacco Control Monograph No. 9, at 24. In 1973, Congress
extended the electronic media advertising ban for cigarettes to little
cigars. Little Cigar Act, §3, Pub. L. 93-109, 87 Stat. 352, as amended, 15
U. S. C. §1335. In the 1990s, cigar advertising campaigns triggered a
boost in sales. Smoking and Tobacco Control Monograph No. 9, at
215.
|
| [125] |
Our review of the record reveals that the Attorney General has
provided ample documentation of the problem with underage use of smokeless
tobacco and cigars. In addition, we disagree with petitioners' claim that
there is no evidence that preventing targeted campaigns and limiting youth
exposure to advertising will decrease underage use of smokeless tobacco
and cigars. On this record and in the posture of summary judgment, we are
unable to conclude that the Attorney General's decision to regulate
advertising of smokeless tobacco and cigars in an effort to combat the use
of tobacco products by minors was based on mere "speculation [and]
conjecture." Edenfield v. Fane, 507 U. S., at 770.
|
| [126] |
2.
|
| [127] |
Whatever the strength of the Attorney General's evidence to justify
the outdoor advertising regulations, however, we conclude that the
regulations do not satisfy the fourth step of the Central Hudson analysis.
The final step of the Central Hudson analysis, the "critical inquiry in
this case," requires a reasonable fit between the means and ends of the
regulatory scheme. 447 U. S., at 569. The Attorney General's regulations
do not meet this standard. The broad sweep of the regulations indicates
that the Attorney General did not "carefully calculat[e] the costs and
benefits associated with the burden on speech imposed" by the regulations.
Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 417 (1993) (internal
quotation marks omitted).
|
| [128] |
The outdoor advertising regulations prohibit any smokeless tobacco or
cigar advertising within 1,000 feet of schools or playgrounds. In the
District Court, petitioners maintained that this prohibition would prevent
advertising in 87% to 91% of Boston, Worchester, and Springfield,
Massachusetts. 84 F. Supp. 2d, at 191. The 87% to 91% figure appears to
include not only the effect of the regulations, but also the limitations
imposed by other generally applicable zoning restrictions. See App.
161-167. The Attorney General disputed petitioners' figures but
"concede[d] that the reach of the regulations is substantial." 218 F. 3d,
at 50. Thus, the Court of Appeals concluded that the regulations prohibit
advertising in a substantial portion of the major metropolitan areas of
Massachusetts. Ibid.
|
| [129] |
The substantial geographical reach of the Attorney General's outdoor
advertising regulations is compounded by other factors. "Outdoor"
advertising includes not only advertising located outside an
establishment, but also advertising inside a store if that advertising is
visible from outside the store. The regulations restrict advertisements of
any size and the term advertisement also includes oral statements. 940
Code of Mass. Regs §§21.03, 22.03 (2000).
|
| [130] |
In some geographical areas, these regulations would constitute nearly
a complete ban on the communication of truthful information about
smokeless tobacco and cigars to adult consumers. The breadth and scope of
the regulations, and the process by which the Attorney General adopted the
regulations, do not demonstrate a careful calculation of the speech
interests involved.
|
| [131] |
First, the Attorney General did not seem to consider the impact of the
1,000-foot restriction on commercial speech in major metropolitan areas.
The Attorney General apparently selected the 1,000-foot distance based on
the FDA's decision to impose an identical 1,000-foot restriction when it
attempted to regulate cigarette and smokeless tobacco advertising. See FDA
Final Rule, 61 Fed. Reg. 44399; Brief for Respondents 45, and n. 23. But
the FDA's 1,000-foot regulation was not an adequate basis for the Attorney
General to tailor the Massachusetts regulations. The degree to which
speech is suppressed -- or alternative avenues for speech remain available
--under a particular regulatory scheme tends to be case specific. See,
e.g., Renton, 475 U. S., at 53-54. And a case specific analysis makes
sense, for although a State or locality may have common interests and
concerns about underage smoking and the effects of tobacco advertisements,
the impact of a restriction on speech will undoubtedly vary from place to
place. The FDA's regulations would have had widely disparate effects
nationwide. Even in Massachusetts, the effect of the Attorney General's
speech regulations will vary based on whether a locale is rural, suburban,
or urban. The uniformly broad sweep of the geographical limitation
demonstrates a lack of tailoring.
|
| [132] |
In addition, the range of communications restricted seems unduly
broad. For instance, it is not clear from the regulatory scheme why a ban
on oral communications is necessary to further the State's interest.
Apparently that restriction means that a retailer is unable to answer
inquiries about its tobacco products if that communication occurs
outdoors. Similarly, a ban on all signs of any size seems ill suited to
target the problem of highly visible billboards, as opposed to smaller
signs. To the extent that studies have identified particular advertising
and promotion practices that appeal to youth, tailoring would involve
targeting those practices while permitting others. As crafted, the
regulations make no distinction among practices on this
basis.
|
| [133] |
The Court of Appeals recognized that the smokeless tobacco and cigar
petitioners' concern about the amount of speech restricted was "valid,"
but reasoned that there was an "obvious connection to the state's interest
in protecting minors." 218 F. 3d, at 50. Even on the premise that
Massachusetts has demonstrated a connection between the outdoor
advertising regulations and its substantial interest in preventing
underage tobacco use, the question of tailoring remains. The Court of
Appeals failed to follow through with an analysis of the countervailing
First Amendment interests.
|
| [134] |
The State's interest in preventing underage tobacco use is
substantial, and even compelling, but it is no less true that the sale and
use of tobacco products by adults is a legal activity. We must consider
that tobacco retailers and manufacturers have an interest in conveying
truthful information about their products to adults, and adults have a
corresponding interest in receiving truthful information about tobacco
products. In a case involving indecent speech on the Internet we explained
that "the governmental interest in protecting children from harmful
materials ... does not justify an unnecessarily broad suppression of
speech addressed to adults." Reno v. American Civil Liberties Union, 521
U. S. 844, 875 (1997) (citations omitted). See, e.g., Bolger v. Youngs
Drug Products Corp., 463 U. S. 60, 74 (1983) ("The level of discourse
reaching a mailbox simply cannot be limited to that which would be
suitable for a sandbox"); Butler v. Michigan, 352 U. S. 380, 383 (1957)
("The incidence of this enactment is to reduce the adult population ... to
reading only what is fit for children"). As the State protects children
from tobacco advertisements, tobacco manufacturers and retailers and their
adult consumers still have a protected interest in communication. Cf.
American Civil Liberties Union, supra, at 886-889 (O'Connor, J.,
concurring in judgment in part and dissenting in part) (discussing the
creation of "adult zones" on the Internet).
|
| [135] |
In some instances, Massachusetts' outdoor advertising regulations
would impose particularly onerous burdens on speech. For example, we
disagree with the Court of Appeals' conclusion that because cigar
manufacturers and retailers conduct a limited amount of advertising in
comparison to other tobacco products, "the relative lack of cigar
advertising also means that the burden imposed on cigar advertisers is
correspondingly small." 218 F. 3d, at 49. If some retailers have
relatively small advertising budgets, and use few avenues of
communication, then the Attorney General's outdoor advertising regulations
potentially place a greater, not lesser, burden on those retailers'
speech. Furthermore, to the extent that cigar products and cigar
advertising differ from that of other tobacco products, that difference
should inform the inquiry into what speech restrictions are
necessary.
|
| [136] |
In addition, a retailer in Massachusetts may have no means of
communicating to passersby on the street that it sells tobacco products
because alternative forms of advertisement, like newspapers, do not allow
that retailer to propose an instant transaction in the way that onsite
advertising does. The ban on any indoor advertising that is visible from
the outside also presents problems in establishments like convenience
stores, which have unique security concerns that counsel in favor of full
visibility of the store from the outside. It is these sorts of
considerations that the Attorney General failed to incorporate into the
regulatory scheme.
|
| [137] |
We conclude that the Attorney General has failed to show that the
outdoor advertising regulations for smokeless tobacco and cigars are not
more extensive than necessary to advance the State's substantial interest
in preventing underage tobacco use. Justice Stevens urges that the Court
remand the case for further development of the factual record. Post, at
12-14. We believe that a remand is inappropriate in this case because the
State had ample opportunity to develop a record with respect to tailoring
(as it had to justify its decision to regulate advertising), and
additional evidence would not alter the nature of the scheme before the
Court. See Greater New Orleans, 527 U. S., at 189, n. 6.
|
| [138] |
A careful calculation of the costs of a speech regulation does not
mean that a State must demonstrate that there is no incursion on
legitimate speech interests, but a speech regulation cannot unduly impinge
on the speaker's ability to propose a commercial transaction and the adult
listener's opportunity to obtain information about products. After
reviewing the outdoor advertising regulations, we find the calculation in
this case insufficient for purposes of the First Amendment.
|
| [139] |
C.
|
| [140] |
Massachusetts has also restricted indoor, point-of-sale advertising
for smokeless tobacco and cigars. Advertising cannot be "placed lower than
five feet from the floor of any retail establishment which is located
within a one thousand foot radius of" any school or playground. 940 Code
of Mass. Regs. §§21.04(5)(b), 22.06(5)(b) (2000). The District Court
invalidated these provisions, concluding that the Attorney General had not
provided a sufficient basis for regulating indoor advertising. 84 F. Supp.
2d, at 192-193, 195. The Court of Appeals reversed. 218 F. 3d, at 50-51.
The court explained: "We do have some misgivings about the effectiveness
of a restriction that is based on the assumption that minors under five
feet tall will not, or will less frequently, raise their view above
eye-level, but we find that such [a] determination falls within that range
of reasonableness in which the Attorney General is best suited to pass
judgment." Id., at 51.
|
| [141] |
We conclude that the point-of-sale advertising regulations fail both
the third and fourth steps of the Central Hudson analysis. A regulation
cannot be sustained if it " `provides only ineffective or remote support
for the government's purpose,' " Edenfield, 507 U. S., at 770 (quoting
Central Hudson, 447 U. S., at 564), or if there is "little chance" that
the restriction will advance the State's goal, Greater New Orleans, supra,
at 193 (internal quotation marks omitted). As outlined above, the State's
goal is to prevent minors from using tobacco products and to curb demand
for that activity by limiting youth exposure to advertising. The 5 foot
rule does not seem to advance that goal. Not all children are less than 5
feet tall, and those who are certainly have the ability to look up and
take in their surroundings.
|
| [142] |
By contrast to Justice Stevens, post, at 16-17, we do not believe this
regulation can be construed as a mere regulation of conduct under United
States v. O'Brien, 391 U. S. 367 (1968). To qualify as a regulation of
communicative action governed by the scrutiny outlined in O'Brien, the
State's regulation must be unrelated to expression. Texas v. Johnson, 491
U. S. 397, 403 (1989). See also Erie v. Pap's A. M., 529 U. S. 277,
289-296 (2000) (plurality opinion). Here, Massachusetts' height
restriction is an attempt to regulate directly the communicative impact of
indoor advertising.
|
| [143] |
Massachusetts may wish to target tobacco advertisements and displays
that entice children, much like floor-level candy displays in a
convenience store, but the blanket height restriction does not constitute
a reasonable fit with that goal. The Court of Appeals recognized that the
efficacy of the regulation was questionable, but decided that "[i]n any
event, the burden on speech imposed by the provision is very limited." 218
F. 3d, at 51. There is no de minimis exception for a speech restriction
that lacks sufficient tailoring or justification. We conclude that the
restriction on the height of indoor advertising is invalid under Central
Hudson's third and fourth prongs.
|
| [144] |
D.
|
| [145] |
The Attorney General also promulgated a number of regulations that
restrict sales practices by cigarette, smokeless tobacco, and cigar
manufacturers and retailers. Among other restrictions, the regulations bar
the use of self-service displays and require that tobacco products be
placed out of the reach of all consumers in a location accessible only to
salespersons. 940 Code of Mass. Regs. §§21.04(2)(c)-(d), 22.06(2)(c)-(d)
(2000). The cigarette petitioners do not challenge the sales practices
regulations on pre-emption grounds. Brief for Petitioners Lorillard
Tobacco Co. et al. in No. 00-596, at 5, n. 2. Two of the cigarette
petitioners (Brown & Williamson Tobacco Corporation and Lorillard
Tobacco Company), petitioner U. S. Smokeless Tobacco Company, and the
cigar petitioners challenge the sales practices regulations on First
Amendment grounds. The cigar petitioners additionally challenge a
provision that prohibits sampling or promotional giveaways of cigars or
little cigars. 940 Code of Mass. Regs. §22.06(1)(a).
|
| [146] |
The District Court concluded that these restrictions implicate no
cognizable speech interest, 84 F. Supp. 2d, at 195-196, but the Court of
Appeals did not fully adopt that reasoning. The Court of Appeals
recognized that self-service displays "often do have some communicative
commercial function," but noted that the restriction in the regulations
"is not on speech, but rather on the physical location of actual tobacco
products." 218 F. 3d, at 53. The court reasoned that nothing in the
regulations would prevent the display of empty tobacco product containers,
so long as no actual tobacco product was displayed, much like movie
jackets at a video store. Ibid. With respect to cigar products, the court
observed that retailers traditionally allow access to those products, so
that the consumer may make a selection on the basis of a number of
objective and subjective factors including the aroma and feel of the
cigars. Ibid. Even assuming a speech interest, however, the court
concluded that the regulations were narrowly tailored to serve the State's
substantial interest in preventing access to tobacco products by minors.
Id., at 54. The court also noted that the restrictions do not apply to
adult-only establishments. Ibid.
|
| [147] |
Petitioners devoted little of their briefing to the sales practices
regulations, and our understanding of the regulations is accordingly
limited by the parties' submissions. As we read the regulations, they
basically require tobacco retailers to place tobacco products behind
counters and require customers to have contact with a salesperson before
they are able to handle a tobacco product.
|
| [148] |
The cigarette and smokeless tobacco petitioners contend that "the same
First Amendment principles that require invalidation of the outdoor and
indoor advertising restrictions require invalidation of the display
regulations at issue in this case." Brief for Petitioners Lorillard
Tobacco Co. et al. in No. 00-596, at 46, n. 7. See also Reply Brief for
Petitioner U. S. Smokeless Tobacco Co. in Nos. 00-596 and 00-597, at 12,
n. 7. The cigar petitioners contend that self-service displays for cigars
cannot be prohibited because each brand of cigar is unique and customers
traditionally have sought to handle and compare cigars at the time of
purchase. Brief for Petitioners Altadis U. S. A. Inc. et al. in No.
00-597, at 23, n. 9; Reply Brief for Petitioners Altadis U. S. A. Inc. et
al. in No. 00-597, p. 10, n. 7.
|
| [149] |
We reject these contentions. Assuming that petitioners have a
cognizable speech interest in a particular means of displaying their
products, cf. Cincinnati v. Discovery Network, Inc., 507 U. S. 410 (1993)
(distribution of a magazine through newsracks), these regulations
withstand First Amendment scrutiny.
|
| [150] |
Massachusetts' sales practices provisions regulate conduct that may
have a communicative component, but Massachusetts seeks to regulate the
placement of tobacco products for reasons unrelated to the communication
of ideas. See O'Brien, supra, at 382. See also Pap's A. M., 529 U. S., at
289 (plurality opinion); id., at 310 (Souter, J., concurring in part and
dissenting in part); Johnson, 491 U. S., at 403. We conclude that the
State has demonstrated a substantial interest in preventing access to
tobacco products by minors and has adopted an appropriately narrow means
of advancing that interest. See O'Brien, supra, at 382.
|
| [151] |
Unattended displays of tobacco products present an opportunity for
access without the proper age verification required by law. Thus, the
State prohibits self-service and other displays that would allow an
individual to obtain tobacco products without direct contact with a
salesperson. It is clear that the regulations leave open ample channels of
communication. The regulations do not significantly impede adult access to
tobacco products. Moreover, retailers have other means of exercising any
cognizable speech interest in the presentation of their products. We
presume that vendors may place empty tobacco packaging on open display,
and display actual tobacco products so long as that display is only
accessible to sales personnel. As for cigars, there is no indication in
the regulations that a customer is unable to examine a cigar prior to
purchase, so long as that examination takes place through a
salesperson.
|
| [152] |
The cigar petitioners also list Massachusetts' prohibition on sampling
and free giveaways among the regulations they challenge on First Amendment
grounds. See 940 Code of Mass. Regs. §22.06(1)(a) (2000); Brief for
Petitioners Altadis U. S. A. Inc. et al. in No. 00-597, at 2. At no point
in their briefs or at oral argument, however, did the cigar petitioners
argue the merits of their First Amendment claim with respect to the
sampling and giveaway regulation. We decline to address an issue that was
not sufficiently briefed and argued before this Court. See Northwest
Airlines, Inc. v. County of Kent, 510 U. S. 355, 366, n. 10 (1994);
Williams v. United States, 503 U. S. 193, 206 (1992); Granfinanciera, S.
A. v. Nordberg, 492 U. S. 33, 38-40 (1989).
|
| [153] |
We conclude that the sales practices regulations withstand First
Amendment scrutiny. The means chosen by the State are narrowly tailored to
prevent access to tobacco products by minors, are unrelated to expression,
and leave open alternative avenues for vendors to convey information about
products and for would-be customers to inspect products before
purchase.
|
| [154] |
IV.
|
| [155] |
We have observed that "tobacco use, particularly among children and
adolescents, poses perhaps the single most significant threat to public
health in the United States." FDA v. Brown & Williamson Tobacco Corp.,
529 U. S., at 161. From a policy perspective, it is understandable for the
States to attempt to prevent minors from using tobacco products before
they reach an age where they are capable of weighing for themselves the
risks and potential benefits of tobacco use, and other adult activities.
Federal law, however, places limits on policy choices available to the
States.
|
| [156] |
In this case, Congress enacted a comprehensive scheme to address
cigarette smoking and health in advertising and pre-empted state
regulation of cigarette advertising that attempts to address that same
concern, even with respect to youth. The First Amendment also constrains
state efforts to limit advertising of tobacco products, because so long as
the sale and use of tobacco is lawful for adults, the tobacco industry has
a protected interest in communicating information about its products and
adult customers have an interest in receiving that
information.
|
| [157] |
To the extent that federal law and the First Amendment do not prohibit
state action, States and localities remain free to combat the problem of
underage tobacco use by appropriate means. The judgment of the United
States Court of Appeals for the First Circuit is therefore affirmed in
part and reversed in part, and the cases are remanded for further
proceedings consistent with this opinion.
|
| [158] |
It is so ordered.
|
| [159] |
Justice Kennedy, with whom Justice Scalia joins, concurring in part
and concurring in the judgment.
|
| [160] |
The obvious overbreadth of the outdoor advertising restrictions
suffices to invalidate them under the fourth part of the test in Central
Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S.
557 (1980). As a result, in my view, there is no need to consider whether
the restrictions satisfy the third part of the test, a proposition about
which there is considerable doubt. Cf. post, at 13-14 (Thomas, J.,
concurring in part and concurring in judgment). Neither are we required to
consider whether Central Hudson should be retained in the face of the
substantial objections that can be made to it. See post, at 4-11 (opinion
of Thomas, J.). My continuing concerns that the test gives insufficient
protection to truthful, non-misleading commercial speech require me to
refrain from expressing agreement with the Court's application of the
third part of Central Hudson. See, e.g., 44 Liquormart, Inc. v. Rhode
Island, 517 U. S. 484, 501-504 (1996) (opinion of Stevens, J., joined by
Kennedy and Ginsburg, JJ.). With the exception of Part III-B-1, then, I
join the opinion of the Court.
|
| [161] |
Justice Thomas, concurring in part and concurring in the
judgment.
|
| [162] |
I join the opinion of the Court (with the exception of Part III-B-1)
because I agree that the Massachusetts cigarette advertising regulations
are preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.
S. C. §1331 et seq. I also agree with the Court's disposition of the First
Amendment challenges to the other regulations at issue here, and I share
the Court's view that the regulations fail even the intermediate scrutiny
of Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y.,
447 U. S. 557 (1980). At the same time, I continue to believe that when
the government seeks to restrict truthful speech in order to suppress the
ideas it conveys, strict scrutiny is appropriate, whether or not the
speech in question may be characterized as "commercial." See 44
Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 518 (1996) (Thomas, J.,
concurring in part and concurring in judgment). I would subject all of the
advertising restrictions to strict scrutiny and would hold that they
violate the First Amendment.
|
| [163] |
I.
|
| [164] |
At the heart of this litigation is a Massachusetts regulation that
imposes a sweeping ban on speech about tobacco products. 940 Code of Mass.
Regs. §21.04(5) (2000), which governs cigarettes and smokeless tobacco,
and §22.06(5), which governs cigars, prohibit all outdoor advertising, all
indoor advertising that can be seen from outdoors, and all point-of-sale
advertising (even if not visible from outdoors) that is lower than five
feet from the floor.*fn2 These restrictions are superficially limited in their
geographic scope: they apply only within 1,000 feet of "any public
playground, playground area in a public park, elementary school or
secondary school." §21.04(5)(a). But the Court of Appeals acknowledged
that the zone of prohibition covers as much as 90 percent of the three
largest cities in Massachusetts, Consolidated Cigar Corp. v. Reilly, 218
F. 3d 30, 50 (CA1 2000), so the practical effect is little different from
that of a total ban. Cf. United States v. Playboy Entertainment Group,
Inc., 529 U. S. 803, 812 (2000) ("The Government's content-based burdens
must satisfy the same rigorous scrutiny as its content-based
bans").
|
| [165] |
Respondents suggest in passing that the regulations are "zoning-type
restrictions" that should receive "the intermediate level of scrutiny
traditionally associated with various forms of `time, place, and manner'
regulations." Brief for Respondents 31. We have indeed upheld time, place,
and manner regulations that prohibited certain kinds of outdoor signs,
see, e.g., Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U. S. 789 (1984), and we have similarly upheld zoning laws
that had the effect of restricting certain kinds of sexually explicit
expression, see, e.g., Renton v. Playtime Theatres, Inc., 475 U. S. 41
(1986). But the abiding characteristic of valid time, place, and manner
regulations is their content neutrality. See Ward v. Rock Against Racism,
491 U. S. 781, 791-796 (1989). In Vincent the city prohibited all signs on
public property, not to suppress the message conveyed by any of the signs,
but simply to minimize the esthetic effect of visual clutter. Likewise,
the ordinance in Renton was aimed not at expression, but at the "secondary
effects" caused by adult businesses.
|
| [166] |
The regulations here are very different. Massachusetts is not
concerned with any "secondary effects" of tobacco advertising -- it is
concerned with the advertising's primary effect, which is to induce those
who view the advertisements to purchase and use tobacco products. Cf. Boos
v. Barry, 485 U. S. 312, 321 (1988) ("Listeners' reactions to speech are
not the type of `secondary effects' we referred to in Renton"). In other
words, it seeks to suppress speech about tobacco because it objects to the
content of that speech. We have consistently applied strict scrutiny to
such content-based regulations of speech. See, e.g., Turner Broadcasting
System, Inc. v. FCC, 512 U. S. 622, 641-643 (1994).
|
| [167] |
A.
|
| [168] |
There was once a time when this Court declined to give any First
Amendment protection to commercial speech. In Valentine v. Chrestensen,
316 U. S. 52 (1942), the Court went so far as to say that "the
Constitution imposes [no] restraint on government as respects purely
commercial advertising." Id., at 54. That position was repudiated in
Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425
U. S. 748 (1976), which explained that even speech "which does `no more
than propose a commercial transaction' " is protected by the First
Amendment. Id., at 762 (quoting Pittsburgh Press Co. v. Pittsburgh Comm'n
on Human Relations, 413 U. S. 376, 385 (1973)). Since then, the Court has
followed an uncertain course -- much of the uncertainty being generated by
the malleability of the four-part balancing test of Central Hudson. See 44
Liquormart, 517 U. S., at 520-522 (Thomas, J., concurring in part and
concurring in judgment).
|
| [169] |
I have observed previously that there is no "philosophical or
historical basis for asserting that `commercial' speech is of `lower
value' than `noncommercial' speech." Id., at 522. Indeed, I doubt whether
it is even possible to draw a coherent distinction between commercial and
noncommercial speech. See id., at 523, n. 4 (citing Kozinski & Banner,
Who's Afraid of Commercial Speech, 76 Va. L. Rev. 627 (1990)).*fn3
|
| [170] |
It should be clear that if these regulations targeted anything other
than advertising for commercial products -- if, for example, they were
directed at billboards promoting political candidates -- all would agree
that the restrictions should be subjected to strict scrutiny. In my view,
an asserted government interest in keeping people ignorant by suppressing
expression "is per se illegitimate and can no more justify regulation of
`commercial' speech than it can justify regulation of `noncommercial'
speech." 517 U. S., at 518 (Thomas, J., concurring in part and concurring
in judgment). That is essentially the interest asserted here, and,
adhering to the views I expressed in 44 Liquormart, I would subject the
Massachusetts regulations to strict scrutiny.
|
| [171] |
B.
|
| [172] |
Even if one accepts the premise that commercial speech generally is
entitled to a lower level of constitutional protection than are other
forms of speech, it does not follow that the regulations here deserve
anything less than strict scrutiny. Although we have recognized several
categories of speech that normally receive reduced First Amendment
protection, or no First Amendment protection at all, we have never held
that the government may regulate speech within those categories in any way
that it wishes. Rather, we have said "that these areas of speech can,
consistently with the First Amendment, be regulated because of their
constitutionally proscribable content." R. A. V. v. St. Paul, 505 U. S.
377, 383 (1992). Even when speech falls into a category of reduced
constitutional protection, the government may not engage in content
discrimination for reasons unrelated to those characteristics of the
speech that place it within the category. For example, a city may ban
obscenity (because obscenity is an unprotected category, see, e.g., Roth
v. United States, 354 U. S. 476 (1957)), but it may not ban "only those
legally obscene works that contain criticism of the city government." R.
A. V., supra, at 384.
|
| [173] |
In explaining the distinction between commercial speech and other
forms of speech, we have emphasized that commercial speech is both "more
easily verifiable by its disseminator" and less likely to be "chilled by
proper regulation." Virginia Bd., 425 U. S., at 772, n. 24. These
characteristics led us to conclude that, in the context of commercial
speech, it is "less necessary to tolerate inaccurate statements for fear
of silencing the speaker," and also that it is more "appropriate to
require that a commercial message appear in such a form, or include such
additional information, warnings, and disclaimers, as are necessary to
prevent its being deceptive." Ibid. Whatever the validity of this
reasoning, it is limited to the peculiarly commercial harms that
commercial speech can threaten -- i.e., the risk of deceptive or
misleading advertising. As we observed in R. A. V.:
|
| [174] |
"[A] State may choose to regulate price advertising in one industry
but not in others, because the risk of fraud (one of the characteristics
of commercial speech that justifies depriving it of full First Amendment
protection) is in its view greater there. But a State may not prohibit
only that commercial advertising that depicts men in a demeaning fashion."
505 U. S., at 388-389 (citations omitted).
|
| [175] |
In 44 Liquormart, several Members of the Court said much the same
thing:
|
| [176] |
"[W]hen a State entirely prohibits the dissemination of truthful,
non-misleading commercial messages for reasons unrelated to the
preservation of a fair bargaining process, there is far less reason to
depart from the rigorous review that the First Amendment generally
demands." 517 U. S., at 501 (opinion of Stevens, J., joined by Kennedy and
Ginsburg, JJ.).
|
| [177] |
Whatever power the State may have to regulate commercial speech, it
may not use that power to limit the content of commercial speech, as it
has done here, "for reasons unrelated to the preservation of a fair
bargaining process." Such content-discriminatory regulation -- like all
other content-based regulation of speech -- must be subjected to strict
scrutiny.
|
| [178] |
C.
|
| [179] |
In an effort to avoid the implications of these basic principles of
First Amendment law, respondents make two principal claims. First, they
argue that the regulations target deceptive and misleading speech. See
Brief for Respondents 33 ("Petitioners' advertising clearly engenders `the
potential for deception or confusion' that allows for regulation of
commercial speech based on its content" (quoting Bolger v. Youngs Drug
Products Corp., 463 U. S. 60, 65 (1983)). Second, they argue that the
regulations restrict speech that promotes an illegal transaction -- i.e.,
the sale of tobacco to minors. See Brief for Respondents 15 ("The
regulations . . . exhibit a close connection to a commercial transaction
the State has prohibited").
|
| [180] |
Neither theory is properly before the Court. For purposes of summary
judgment, respondents were willing to assume "that the tobacco
advertisements at issue here are truthful, non-misleading speech about a
lawful activity." 218 F. 3d, at 43. Although respondents now claim that
they have not conceded this point, see Brief for Respondent 35, n. 17, the
fact remains that they did not urge their theories in the lower courts,
and in general, we do not consider arguments for affirmance that were not
presented below. See, e.g., Glover v. United States, 531 U. S. 198, 205
(2001). These concessions should make this an easy case, one clearly
controlled by 44 Liquormart and by Greater New Orleans Broadcasting Assn.,
Inc. v. United States, 527 U. S. 173 (1999). At all events, even if we
were to entertain these arguments, neither is persuasive.
|
| [181] |
Respondents suggest that tobacco advertising is misleading because
"its youthful imagery and ... sheer ubiquity" leads children to believe
"that tobacco use is desirable and pervasive." Brief for Respondents 33;
see also Brief for United States as Amicus Curiae 7 ("[S]o many children
lack the maturity in judgment to resist the tobacco industry's appeals to
excitement, glamour, and independence"). This justification is belied,
however, by the sweeping overinclusivity of the regulations. Massachusetts
has done nothing to target its prohibition to advertisements appealing to
"excitement, glamour, and independence"; the ban applies with equal force
to appeals to torpor, homeliness, and servility. It has not focused on
"youthful imagery"; smokers depicted on the sides of buildings may no more
play shuffleboard than they may ride skateboards.
|
| [182] |
The regulations even prohibit a store from accurately stating the
prices at which cigarettes are sold. Such a display could not possibly be
misleading, unless one accepts the State's apparent view that the simple
existence of tobacco advertisements misleads people into believing that
tobacco use is more pervasive than it actually is. The State
misunderstands the purpose of advertising. Promoting a product that is not
yet pervasively used (or a cause that is not yet widely supported) is a
primary purpose of advertising. Tobacco advertisements would be no more
misleading for suggesting pervasive use of tobacco products than are any
other advertisements that attempt to expand a market for a product, or to
rally support for a political movement. Any inference from the
advertisements that businesses would like for tobacco use to be pervasive
is entirely reasonable, and advertising that gives rise to that inference
is in no way deceptive.
|
| [183] |
The State also contends that tobacco advertisements may be restricted
because they propose an illegal sale of tobacco to minors. A direct
solicitation of unlawful activity may of course be proscribed, whether or
not it is commercial in nature. See Brandenburg v. Ohio, 395 U. S. 444
(1969) (per curiam). The State's power to punish speech that solicits or
incites crime has nothing to do with the commercial character of the
speech. After all, it is often the case that solicitation to commit a
crime is entirely noncommercial. The harm that the State seeks to prevent
is the harm caused by the unlawful activity that is solicited; it is
unrelated to the commercial transaction itself. Thus there is no reason to
apply anything other than our usual rule for evaluating solicitation and
incitement simply because the speech in question happens to be commercial.
See Carey v. Population Services Int'l, 431 U. S. 678, 701-702
(1977).
|
| [184] |
Viewed as an effort to proscribe solicitation to unlawful conduct,
these regulations clearly fail the Brandenburg test. A State may not
"forbid or proscribe advocacy of the use of force or of law violation
except where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action."
Brandenburg, supra, at 447. Even if Massachusetts could prohibit
advertisements reading, "Hey kids, buy cigarettes here," these regulations
sweep much more broadly than that. They cover "any . . . statement or
representation . . . the purpose or effect of which is to promote the use
or sale" of tobacco products, whether or not the statement is directly or
indirectly addressed to minors. 940 Code of Mass. Regs. §21.03 (2000). On
respondents' theory, all tobacco advertising may be limited because some
of its viewers may not legally act on it.
|
| [185] |
It is difficult to see any stopping point to a rule that would allow a
State to prohibit all speech in favor of an activity in which it is
illegal for minors to engage. Presumably, the State could ban car
advertisements in an effort to enforce its restrictions on underage
driving. It could regulate advertisements urging people to vote, because
children are not permitted to vote. And, although the Solicitor General
resisted this implication of her theory, see Tr. of Oral Arg. 55-56, the
State could prohibit advertisements for adult businesses, which children
are forbidden to patronize.
|
| [186] |
At bottom, respondents' theory rests on the premise that an indirect
solicitation is enough to empower the State to regulate speech, and that,
as petitioners put it, even an advertisement directed at adults "will give
any children who may happen to see it the wrong idea and therefore must be
suppressed from public view." Brief for Petitioners Lorillard Tobacco Co.
et al. in No. 00-596, p. 36. This view is foreign to the First Amendment.
"Every idea is an incitement," Gitlow v. New York, 268 U. S. 652, 673
(1925) (Holmes, J., dissenting), and if speech may be suppressed whenever
it might inspire someone to act unlawfully, then there is no limit to the
State's censorial power. Cf. American Booksellers Assn., Inc. v. Hudnut,
771 F. 2d 323 (CA7 1985), aff'd, 475 U. S. 1001 (1986).
|
| [187] |
There is a deeper flaw in the State's argument. Even if Massachusetts
has a valid interest in regulating speech directed at children -- who, it
argues, may be more easily misled, and to whom the sale of tobacco
products is unlawful -- it may not pursue that interest at the expense of
the free speech rights of adults.
|
| [188] |
The theory that public debate should be limited in order to protect
impressionable children has a long historical pedigree: Socrates was
condemned for being "a doer of evil, inasmuch as he corrupts the youth." 1
Dialogues of Plato, Apology 348 (B. Jowett transl., 4th ed. 1953). But the
theory has met with a less enthusiastic reception in this Court than it
did in the Athenian assembly. In Butler v. Michigan, 352 U. S. 380 (1957),
we struck down a statute restricting the sale of materials " `tending to
incite minors to violent or depraved or immoral acts.' " Id., at 381
(quoting then Mich. Penal Code §343). The effect of the law, we observed,
was "to reduce the adult population of Michigan to reading only what is
fit for children." 352 U. S., at 383. As Justice Frankfurter colorfully
put it, "Surely, this is to burn the house to roast the pig."
Ibid.
|
| [189] |
We have held consistently that speech "cannot be suppressed solely to
protect the young from ideas or images that a legislative body thinks
unsuitable for them." Erznoznik v. Jacksonville, 422 U. S. 205, 213-214
(1975); accord, Bolger, 463 U. S., at 74 ("The level of discourse reaching
a mailbox simply cannot be limited to that which would be suitable for a
sandbox"). To be sure, in FCC v. Pacifica Foundation, 438 U. S. 726
(1978), we upheld the Federal Communications Commission's power to
regulate indecent but nonobscene radio broadcasts. But Pacifica relied
heavily on what it considered to be the "special justifications for
regulation of the broadcast media that are not applicable to other
speakers." Reno v. American Civil Liberties Union, 521 U. S. 844, 868
(1997). It emphasized that radio is "uniquely pervasive" and "uniquely
accessible to children, even those too young to read." Pacifica, supra, at
748-749 (emphasis added).
|
| [190] |
Outside of the broadcasting context, we have adhered to the view that
"the governmental interest in protecting children from harmful materials"
does not "justify an unnecessarily broad suppression of speech addressed
to adults." Reno, supra, at 875; see also Playboy Entertainment, 529 U.
S., at 814 ("[T]he objective of shielding children does not suffice to
support a blanket ban if the protection can be accomplished by a less
restrictive alternative"). Massachusetts may not avoid the application of
strict scrutiny simply because it seeks to protect children.
|
| [191] |
II.
|
| [192] |
Under strict scrutiny, the advertising ban may be saved only if it is
narrowly tailored to promote a compelling government interest. See, e.g.,
id., at 813. If that interest could be served by an alternative that is
less restrictive of speech, then the State must use that alternative
instead. See ibid.; Reno, supra, at 874. Applying this standard, the
regulations here must fail.
|
| [193] |
A.
|
| [194] |
Massachusetts asserts a compelling interest in reducing tobacco use
among minors. Applied to adults, an interest in manipulating market
choices by keeping people ignorant would not be legitimate, let alone
compelling. See supra, at 5. But assuming that there is a compelling
interest in reducing underage smoking, and that the ban on outdoor
advertising promotes this interest, I doubt that the same is true of the
ban on point-of-sale advertising below five feet. See 940 Code of Mass.
Regs. §§21.04(5)(b), 22.06(5)(b) (2000). The Court of Appeals admitted to
having "some misgivings about the effectiveness of a restriction that is
based on the assumption that minors under five feet tall will not, or will
less frequently, raise their view above eye-level," 218 F. 3d, at 51, as
well it might have, since respondents have produced no evidence to support
this counterintuitive assumption. Obviously even short children can see
objects that are taller than they are. Anyway, by the time they are 12½
years old, both the median girl and the median boy are over five feet
tall. See U. S. Centers for Disease Control and Prevention, Growth Charts
(2000). Thus, there is no reason to believe that this regulation does
anything to protect minors from exposure to tobacco advertising.*fn4 Far from serving a compelling interest, the ban on
displays below five feet seems to lack even a minimally rational
relationship to any conceivable interest.
|
| [195] |
There is also considerable reason to doubt that the restrictions on
cigar and smokeless tobacco outdoor advertising promote any state
interest. Outdoor advertising for cigars, after all, is virtually
nonexistent. Cigar makers use no billboards in Massachusetts, and in fact
their nationwide outdoor advertising budget is only about $50,000 per
year. See 218 F. 3d, at 49. To the extent outdoor advertising exists,
there is no evidence that it is targeted at youth or has a significant
effect on youth. The Court of Appeals focused on the State's evidence of a
relationship between "tobacco advertising and tobacco use," id., at 48,
thus eliding the dearth of evidence showing any relationship between cigar
advertising and cigar use by minors. Respondents principally rely on a
National Cancer Institute report on cigar smoking, see Brief for
Respondents 39, n. 19. But that report contains only the conclusory
assertion that cigars are being "heavily promoted in ways likely to
influence adolescent use," and it does not even discuss outdoor
advertising, instead focusing on "[e]ndorsements by celebrities," "the
resurgence of cigar smoking in movies," and "cigar lifestyle magazines
such as `Cigar Aficionado.' " National Cancer Institute, Cigars: Health
Effects and Trends, Smoking and Tobacco Control Monograph No. 9, pp. 14-15
(1998), Record, Doc. No. 39, Exh. 67. The report candidly acknowledges
that "[a]additional information is needed to better characterize marketing
efforts for cigars" and "to learn the extent to which advertising and
promotion for cigars . . . reaches and affects kids." Id., at 216-217. In
other words, respondents have adduced no evidence that a ban on cigar
advertising will do anything to promote their asserted
interest.
|
| [196] |
Much the same is true of smokeless tobacco. Here respondents place
primary reliance on evidence that, in the late 1960's, the U. S. Smokeless
Tobacco Company increased its sales through advertising targeted at young
males. See Brief for Respondents 39, n. 19. But this does nothing to show
that advertising affecting minors is a problem today. The Court invokes
the Food and Drug Administration's findings, see ante, at 29-30, but the
report it cites based its conclusions on the observed "very large increase
in the use of smokeless tobacco products by young people." 60 Fed. Reg.
41318 (1995). This premise is contradicted by one of respondents' own
studies, which reports a large, steady decrease in smokeless tobacco use
among Massachusetts high school students during the 1990's. See App. 292.
This finding casts some doubt on whether the State's interest in
additional regulation is truly compelling. More importantly, because
cigarette smoking among high school students has not exhibited such a
trend, see ibid., it indicates that respondents' effort to aggregate
cigarettes and smokeless tobacco is misguided.
|
| [197] |
B.
|
| [198] |
In any case, even assuming that the regulations advance a compelling
state interest, they must be struck down because they are not narrowly
tailored. The Court is correct, see ante, at 32-33, that the arbitrary
1,000-foot radius demonstrates a lack of narrow tailoring, but the problem
goes deeper than that. A prohibited zone defined solely by circles drawn
around schools and playgrounds is necessarily overinclusive, regardless of
the radii of the circles. Consider, for example, a billboard located
within 1,000 feet of a school but visible only from an elevated freeway
that runs nearby. Such a billboard would not threaten any of the interests
respondents assert, but it would be banned anyway, because the regulations
take no account of whether the advertisement could even be seen by
children. The prohibited zone is even more suspect where, as here, it
includes all but 10 percent of the area in the three largest cities in the
State.
|
| [199] |
The loose tailoring of the advertising ban is displayed not only in
its geographic scope but also in the nature of the advertisements it
affects. The regulations define "advertisement" very broadly; the term
includes any "written ... statement or representation, made by" a person
who sells tobacco products, "the purpose or effect of which is to promote
the use or sale of the product." §21.03. Almost everything a business does
has the purpose of promoting the sale of its products, so this definition
would cover anything a tobacco retailer might say. Some of the prohibited
speech would not even be commercial. If a store displayed a sign promoting
a candidate for Attorney General who had promised to repeal the tobacco
regulations if elected, it probably would be doing so with the long-term
purpose of promoting sales, and the display of such a sign would be
illegal.
|
| [200] |
Even if the definition of "advertisement" were read more narrowly so
as to require a specific reference to tobacco products, it still would
have Draconian effects. It would, for example, prohibit a tobacconist from
displaying a sign reading "Joe's Cigar Shop." The effect of this rule is
not to make cigars impossible to find; retailers are after all allowed to
display a 576-square-inch black-and-white sign reading "Tobacco Products
Sold Here." §22.06(6). Rather, it is to make individual cigar retailers
more difficult to identify by making them change their names. Respondents
assert no interest in cigar retailer anonymity, and it is difficult to
conceive of any other interest to which this rule could be said to be
narrowly tailored.
|
| [201] |
The regulations fail the narrow tailoring inquiry for another, more
fundamental reason. In addition to examining a narrower advertising ban,
the State should have examined ways of advancing its interest that do not
require limiting speech at all. Here, respondents had several
alternatives. Most obviously, they could have directly regulated the
conduct with which they were concerned. See, e.g., Rubin v. Coors Brewing
Co., 514 U. S. 476, 490-491 (1995) (invalidating ban on disclosure of
alcohol content on beer labels, in part because the Government could have
pursued alternatives such as "directly limiting the alcohol content of
beers"); see also 44 Liquormart, 517 U. S., at 524 (Thomas, J., concurring
in part and concurring in judgment) ("[I]t would seem that directly
banning a product (or ... otherwise restricting its sale in specific ways)
would virtually always be at least as effective in discouraging
consumption as merely restricting advertising"). Massachusetts already
prohibits the sale of tobacco to minors, but it could take steps to
enforce that prohibition more vigorously. It also could enact laws
prohibiting the purchase, possession, or use of tobacco by minors. And, if
its concern is that tobacco advertising communicates a message with which
it disagrees, it could seek to counteract that message with "more speech,
not enforced silence," Whitney v. California, 274 U. S. 357, 377 (1927)
(Brandeis, J., concurring).
|
| [202] |
III.
|
| [203] |
Underlying many of the arguments of respondents and their amici is the
idea that tobacco is in some sense sui generis -- that it is so special,
so unlike any other object of regulation, that application of normal First
Amendment principles should be suspended. See, e.g., Brief for Respondents
50 (referring to tobacco use as "one of the State's -- and indeed the
Nation's -- most urgent problems"); Brief for United States as Amicus
Curiae 19-20 (cataloging the prevalence and the effects of tobacco use);
Brief for American Medical Association et al. as Amici Curiae 24
(advocating "the authority of governments to protect children from
uniquely dangerous messages"). Smoking poses serious health risks, and
advertising may induce children (who lack the judgment to make an
intelligent decision about whether to smoke) to begin smoking, which can
lead to addiction. The State's assessment of the urgency of the problem
posed by tobacco is a policy judgment, and it is not this Court's place to
second-guess it. Nevertheless, it seems appropriate to point out that to
uphold the Massachusetts tobacco regulations would be to accept a line of
reasoning that would permit restrictions on advertising for a host of
other products.
|
| [204] |
Tobacco use is, we are told, "the single leading cause of preventable
death in the United States." Brief for United States as Amicus Curiae 19.
The second largest contributor to mortality rates in the United States is
obesity. Koplan & Dietz, Caloric Imbalance and Public Health Policy,
282 JAMA 1579 (1999). It is associated with increased incidence of
diabetes, hypertension, and coronary artery disease, ibid., and it
represents a public health problem that is rapidly growing worse. See
Mokdad et al., The Spread of the Obesity Epidemic in the United States,
1991-1998, 282 JAMA 1519 (1999). Although the growth of obesity over the
last few decades has had many causes, a significant factor has been the
increased availability of large quantities of high-calorie, high-fat
foods. See Hill, Environmental Contributions to the Obesity Epidemic, 280
Science 1371 (1998). Such foods, of course, have been aggressively
marketed and promoted by fast food companies. See Nestle & Jacobson,
Halting the Obesity Epidemic, U. S. Dept. of Health and Human Services,
115 Public Health Reports 12, 18 (2000).
|
| [205] |
Respondents say that tobacco companies are covertly targeting children
in their advertising. Fast food companies do so openly. See, e.g., Kramer,
McD's Steals Another Toy from BK, Advertising Age, Nov. 15, 1999, p. 1
(describing a McDonald's promotional campaign); Lucas, BK Takes Choice
Message to Kids, Adweek, June 29, 1998, p. 4 (describing a Burger King
promotional campaign). Moreover, there is considerable evidence that they
have been successful in changing children's eating behavior. See
Borzekowski & Robinson, The 30-Second Effect, 101 J. Am. Dietetic
Assn. 42 (2001); Taras, Sallis, Patterson, Nader, & Nelson,
Television's Influence on Children's Diet and Physical Activity, 10 J.
Dev. & Behav. Pediatrics 176 (1989). The effect of advertising on
children's eating habits is significant for two reasons. First, childhood
obesity is a serious health problem in its own right. Troiano &
Flegal, Overweight Children and Adolescents, 101 Pediatrics 497 (1998).
Second, eating preferences formed in childhood tend to persist in
adulthood. Birch & Fisher, Development of Eating Behaviors Among
Children and Adolescents, 101 Pediatrics 539 (1998). So even though fast
food is not addictive in the same way tobacco is, children's exposure to
fast food advertising can have deleterious consequences that are difficult
to reverse.
|
| [206] |
To take another example, the third largest cause of preventable deaths
in the United States is alcohol. McGinnis & Foege, Actual Causes of
Death in the United States, 270 JAMA 2207, 2208 (1993). Alcohol use is
associated with tens of thousands of deaths each year from cancers and
digestive diseases. Id., at 2208-2209. And the victims of alcohol use are
not limited to those who drink alcohol. In 1996, over 17,000 people were
killed, and over 321,000 people were injured, in alcohol-related car
accidents. U. S. Dept. of Justice, Alcohol and Crime 13 (1998). Each year,
alcohol is involved in several million violent crimes, including almost
200,000 sexual assaults. Id., at 3-4.
|
| [207] |
Although every State prohibits the sale of alcohol to those under age
21, much alcohol advertising is viewed by children. Federal Trade
Commission, J. Evans & R. Kelly, Self-Regulation in the Alcohol
Industry (Sept. 1999); Grube & Wallack, Television Beer Advertising
and Drinking Knowledge, Beliefs, and Intentions among Schoolchildren, 84
Am. J. Pub. Health 254 (1994). Not surprisingly, there is considerable
evidence that exposure to alcohol advertising is associated with underage
drinking. See Atkin, Survey and Experimental Research on Effects of
Alcohol Advertising, in The Effects of the Mass Media on the Use and Abuse
of Alcohol 39 (S. Martin ed. 1995); Madden & Grube, The Frequency and
Nature of Alcohol and Tobacco Advertising in Televised Sports, 1990
through 1992, 84 Am. J. Pub. Health 297 (1994).
|
| [208] |
Like underage tobacco use, underage drinking has effects that cannot
be undone later in life. Those who begin drinking early are much more
likely to become dependent on alcohol. Indeed, the probability of lifetime
alcohol dependence decreases approximately 14 percent with each additional
year of age at which alcohol is first used. Grant & Dawson, Age at
Onset of Alcohol Use and its Association with DSM-IV Alcohol Abuse and
Dependence, 9 J. Substance Abuse 103, 108 (1997). And obviously the
effects of underage drinking are irreversible for the nearly 1,700
Americans killed each year by teenage drunk drivers. See National Highway
Traffic Safety Administration, 1998 Youth Fatal Crash and Alcohol
Facts.
|
| [209] |
Respondents have identified no principle of law or logic that would
preclude the imposition of restrictions on fast food and alcohol
advertising similar to those they seek to impose on tobacco advertising.
Cf. Tr. of Oral Arg. 56-57. In effect, they seek a "vice" exception to the
First Amendment. No such exception exists. See 44 Liquormart, 517 U. S.,
at 513-514 (opinion of Stevens, J., joined by Kennedy, Thomas, and
Ginsburg, JJ.). If it did, it would have almost no limit, for "any product
that poses some threat to public health or public morals might reasonably
be characterized by a state legislature as relating to `vice activity.' "
Id., at 514. That is why "a `vice' label that is unaccompanied by a
corresponding prohibition against the commercial behavior at issue fails
to provide a principled justification for the regulation of commercial
speech about that activity." Ibid.
|
| [210] |
No legislature has ever sought to restrict speech about an activity it
regarded as harmless and inoffensive. Calls for limits on expression
always are made when the specter of some threatened harm is looming. The
identity of the harm may vary. People will be inspired by totalitarian
dogmas and subvert the Republic. They will be inflamed by racial
demagoguery and embrace hatred and bigotry. Or they will be enticed by
cigarette advertisements and choose to smoke, risking disease. It is
therefore no answer for the State to say that the makers of cigarettes are
doing harm: perhaps they are. But in that respect they are no different
from the purveyors of other harmful products, or the advocates of harmful
ideas. When the State seeks to silence them, they are all entitled to the
protection of the First Amendment.
|
| [211] |
Justice Souter, concurring in part and dissenting in
part.
|
| [212] |
I join Parts I, II-C, II-D, III-A, III-B-1, III-C, and III-D of the
Court's opinion. I join Part I of the opinion of Justice Stevens
concurring in the judgment in part and dissenting in part. I respectfully
dissent from Part III-B-2 of the opinion of the Court, and like Justice
Stevens would remand for trial on the constitutionality of the 1,000-foot
limit.
|
| [213] |
Justice Stevens, with whom Justice Ginsburg and Justice Breyer join,
and with whom Justice Souter joins as to Part I, concurring in part,
concurring in the judgment in part, and dissenting in part.
|
| [214] |
This suit presents two separate sets of issues. The first -- involving
preemption -- is straightforward. The second -- involving the First
Amendment -- is more complex. Because I strongly disagree with the Court's
conclusion that the Federal Cigarette Labeling and Advertising Act of 1965
(FCLAA or Act), 15 U. S. C. §1331 et seq. as amended, precludes States and
localities from regulating the location of cigarette advertising, I
dissent from Parts II-A and II-B of the Court's opinion. On the First
Amendment questions, I agree with the Court both that the outdoor
advertising restrictions imposed by Massachusetts serve legitimate and
important state interests and that the record does not indicate that the
measures were properly tailored to serve those interests. Because the
present record does not enable us to adjudicate the merits of those claims
on summary judgment, I would vacate the decision upholding those
restrictions and remand for trial on the constitutionality of the outdoor
advertising regulations. Finally, because I do not believe that either the
point-of-sale advertising restrictions or the sales practice restrictions
implicate significant First Amendment concerns, I would uphold them in
their entirety.
|
| [215] |
I.
|
| [216] |
As the majority acknowledges, ante, at 11, under prevailing
principles, any examination of the scope of a preemption provision must "
`start with the assumption that the historic police powers of the States
[are] not to be superseded by ... Federal Act unless that [is] the clear
and manifest purpose of Congress.' " Cipollone v. Liggett Group, Inc., 505
U. S. 504, 516 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U. S.
218, 230 (1947)); see also, e.g., California Div. of Labor Standards
Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 325 (1997);
Medtronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996). As the regulations at
issue in this suit implicate two powers that lie at the heart of the
States' traditional police power -- the power to regulate land usage and
the power to protect the health and safety of minors -- our precedents
require that the Court construe the preemption provision "narrow[ly]."
Id., at 485; see also Cippolone, 505 U. S., at 518. If Congress' intent to
preempt a particular category of regulation is ambiguous, such regulations
are not preempted.*fn5
|
| [217] |
The text of the preemption provision must be viewed in context, with
proper attention paid to the history, structure, and purpose of the
regulatory scheme in which it appears. See, e.g., Medtronic, 518 U. S., at
484-486; New York State Conference of Blue Cross & Blue Shield Plans
v. Travelers Ins. Co., 514 U. S. 645, 655-656 (1995); Cippolone, 505 U.
S., at 513-515, 519-520, 529, 530, n.27; accord, ante, at 11-12.*fn6 An assessment of the scope of a preemption provision
must give effect to a "reasoned understanding of the way in which Congress
intended the statute and its surrounding regulatory scheme to affect
business, consumers, and the law." Medtronic, 518 U. S., at
486.
|
| [218] |
This task, properly performed, leads inexorably to the conclusion that
Congress did not intend to preempt state and local regulations of the
location of cigarette advertising when it adopted the provision at issue
in this suit. In both 1965 and 1969, Congress made clear the purposes of
its regulatory endeavor, explaining with precision the federal policies
motivating its actions. According to the acts, Congress adopted a
"comprehensive Federal program to deal with cigarette labeling and
advertising with respect to any relationship between smoking and health,"
for two reasons: (1) to inform the public that smoking may be hazardous to
health and (2) to ensure that commerce and the interstate economy not be
"impeded by diverse, non-uniform, and confusing cigarette labeling and
advertising regulations with respect to any relationship between smoking
and health." 15 U. S. C. §1331.
|
| [219] |
In order to serve the second purpose it was necessary to preempt state
regulation of the content of both cigarette labels and cigarette
advertising. If one State required the inclusion of a particular warning
on the package of cigarettes while another State demanded a different
formulation, cigarette manufacturers would have been forced into the
difficult and costly practice of producing different packaging for use in
different States. To foreclose the waste of resources that would be
entailed by such a patchwork regulatory system, Congress expressly
precluded other regulators from requiring the placement on cigarette
packaging of any "statement relating to smoking and health." §1334(a).
Similar concerns applied to cigarette advertising. If different regulatory
bodies required that different warnings or statements be used when
cigarette manufacturers advertised their products, the text and layout of
a company's ads would have had to differ from locale to locale. The
resulting costs would have come with little or no health benefit.
Moreover, given the nature of publishing, it might well have been the case
that cigarette companies would not have been able to advertise in national
publications without violating the laws of some jurisdictions. In response
to these concerns, Congress adopted a parallel provision preempting state
and local regulations requiring inclusion in cigarette advertising of any
"statement relating to smoking and health." §1334(b) (1970 ed.) (amended
1970).
|
| [220] |
There was, however, no need to interfere with state or local zoning
laws or other regulations prescribing limitations on the location of signs
or billboards. Laws prohibiting a cigarette company from hanging a
billboard near a school in Boston in no way conflict with laws permitting
the hanging of such a billboard in other jurisdictions. Nor would such
laws even impose a significant administrative burden on would-be
advertisers, as the great majority of localities impose general
restrictions on signage, thus requiring advertisers to examine local law
before posting signs whether or not cigarette-specific laws are preempted.
See Greater N. Y. Metroploitan Food Council, Inc. v. Giuliani, 195 F. 3d
100, 109 (CA2 1999) ("Divergent local zoning restrictions on the location
of sign advertising are a commonplace feature of the national landscape
and cigarette advertisers have always been bound to observe them"). Hence,
it is unsurprising that Congress did not include any provision in the 1965
Act preempting location restrictions.
|
| [221] |
The Public Health Cigarette Smoking Act of 1969 (1969 Act), §2, 84
Stat. 87, made two important changes in the preemption provision. First,
it limited the applicability of the advertising prong to States and
localities, paving the way for further federal regulation of cigarette
advertising. FCLAA., §4. Second, it expanded the scope of the advertising
preemption provision. Where previously States were prohibited from
requiring particular statements in cigarette advertising based on health
concerns, they would henceforth be prohibited from imposing any
"requirement or prohibition based on smoking and health ... with respect
to the advertising or promotion" of cigarettes. §5(b), 15 U. S. C.
§1334(b).*fn7
|
| [222] |
Ripped from its context, this provision could theoretically be read as
a breathtaking expansion of the limitations imposed by the 1965 Act.
However, both our precedents and common sense require us to read statutory
provisions -- and, in particular, preemption clauses -- in the context of
both their neighboring provisions and of the history and purpose of the
statutory scheme. See supra, at 3. When so viewed, it is quite clear that
the 1969 amendments were intended to expand the provision to capture a
narrow set of content regulations that would have escaped preemption under
the prior provision, not to fundamentally reorder the division of
regulatory authority between the Federal and State
Governments.
|
| [223] |
All signs point inescapably to the conclusion that Congress only
intended to preempt content regulations in the 1969 Act. It is of crucial
importance that, in making modifications of the preemption provision,
Congress did not alter the statement laying out the federal policies the
provision was intended to serve. See 15 U. S. C. §1331. To this day, the
stated federal policies in this area are (1) to inform the public of the
dangers of cigarette smoking and (2) to protect the cigarette companies
from the burdens of confusing and contradictory state regulations of their
labels and advertisements. See ibid. The retention of this provision
unchanged is strong evidence that Congress' only intention in expanding
the preemption clause was to capture forms of content regulation that had
fallen through the cracks of the prior provision -- for example, state
laws prohibiting cigarette manufacturers from making particular claims in
their advertising or requiring them to utilize specified layouts or
include particular graphics in their marketing.*fn8
|
| [224] |
The legislative history of the provision also supports such a reading.
The record does not contain any evidence that Congress intended to expand
the scope of preemption beyond content restrictions.*fn9 To the contrary, the Senate Report makes it clear that
the changes merely "clarified" the scope of the original provision. S.
Rep. No. 91-566, p. 12 (1969). Even as amended, Congress perceived the
provision as "narrowly phrased" and emphasized that its purpose is to
"avoid the chaos created by a multiplicity of conflicting regulations."
Ibid. According to the Senate Report, the changes "in no way affect the
power of any state or political subdivision of any state with respect to
... the sale of cigarettes to minors ...or similar police regulations."
Ibid.
|
| [225] |
In analyzing the scope of the preemption provision, the Courts of
Appeals have almost uniformly concluded that state and local laws
regulating the location of billboards and signs are not preempted. See
Consolidated Cigar Corp. v. Reilly, 218 F. 3d 30, 39-41 (CA1 2000) (case
below); Greater New York Metropolitan Food Council, Inc. v. Giuliani, 195
F. 3d 100, 104-110 (CA2 1999); Federation of Advertising Industry
Representatives, Inc. v. Chicago, 189 F. 3d 633, 636-640 (CA7 1999); Penn
Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, 63
F. 3d 1318 (CA4 1995); contra Lindsey v. Tacoma-Pierce County Health Dept,
195 F. 3d 1065 (CA9 1999). The decisions in those cases relied heavily
upon our discussion of the same preemption provision in Cipollone, 505 U.
S., at 515-524. In Cipollone, while the Members of the Court expressed
three different opinions concerning the scope of preemption mandated by
the provision, those differences related entirely to which, if any, of the
plaintiff's claims based on the content of the defendants' advertising
were preempted by §5. Nary a word in any of the three Cipollone opinions
supports the thesis that §5 should be interpreted to preempt state
regulation of the location of signs advertising cigarettes. Indeed, seven
of the nine Justices subscribed to opinions that explicitly tethered the
scope of the preemption provision to Congress' concern with "diverse,
non-uniform, and confusing cigarette labeling and advertising
regulations." Id., at 519; id., at 534, 541 (opinion of Blackmun, J.,
joined by Kennedy, and Souter, JJ.).
|
| [226] |
I am firmly convinced that, when Congress amended the preemption
provision in 1969, it did not intend to expand the application of the
provision beyond content regulations.*fn10 I, therefore, find the conclusion inescapable that
the zoning regulation at issue in this suit is not a "requirement or
prohibition ... with respect to ... advertising" within the meaning of the
1969 Act.*fn11 Even if I were not so convinced, however, I would
still dissent from the Court's conclusion with regard to preemption,
because the provision is, at the very least, ambiguous. The historical
record simply does not reflect that it was Congress' " `clear and manifest
purpose,' " Id., at 516, to preempt attempts by States to utilize their
traditional zoning authority to protect the health and welfare of minors.
Absent such a manifest purpose, Massachusetts and its sister States retain
their traditional police powers.*fn12
|
| [227] |
II.
|
| [228] |
On the First Amendment issues raised by petitioners, my disagreements
with the majority are less significant. I would, however, reach different
dispositions as to the 1,000-foot rule and the height restrictions for
indoor advertising, and my evaluation of the sales practice restrictions
differs from the Court's.
|
| [229] |
The 1,000-Foot Rule
|
| [230] |
I am in complete accord with the Court's analysis of the importance of
the interests served by the advertising restrictions. As the Court lucidly
explains, few interests are more "compelling," ante, at 34, than ensuring
that minors do not become addicted to a dangerous drug before they are
able to make a mature and informed decision as to the health risks
associated with that substance. Unlike other products sold for human
consumption, tobacco products are addictive and ultimately lethal for many
long&nbhyph;term users. When that interest is combined with the
State's concomitant concern for the effective enforcement of its laws
regarding the sale of tobacco to minors, it becomes clear that
Massachusetts' regulations serve interests of the highest order and are,
therefore, immune from any ends-based challenge, whatever level of
scrutiny one chooses to employ.
|
| [231] |
Nevertheless, noble ends do not save a speech-restricting statute
whose means are poorly tailored. Such statutes may be invalid for two
different reasons. First, the means chosen may be insufficiently related
to the ends they purportedly serve. See, e.g., Rubin v. Coors Brewing Co.,
514 U. S. 476 (1995) (striking a statute prohibiting beer labels from
displaying alcohol content because the provision did not significantly
forward the government's interest in the health, safety, and welfare of
its citizens). Alternatively, the statute may be so broadly drawn that,
while effectively achieving its ends, it unduly restricts communications
that are unrelated to its policy aims. See, e.g., United States v. Playboy
Entertainment Group, Inc., 529 U. S. 803, 812 (2000) (striking a statute
intended to protect children from indecent television broadcasts, in part
because it constituted "a significant restriction of communication between
speakers and willing adult listeners"). The second difficulty is most
frequently encountered when government adopts measures for the protection
of children that impose substantial restrictions on the ability of adults
to communicate with one another. See, e.g., Playboy Entertainment Group,
Inc., supra; Reno v. American Civil Liberties Union, 521 U. S. 844 (1997);
Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115
(1989).
|
| [232] |
To my mind, the 1,000-foot rule does not present a tailoring problem
of the first type. For reasons cogently explained in our prior opinions
and in the opinion of the Court, we may fairly assume that advertising
stimulates consumption and, therefore, that regulations limiting
advertising will facilitate efforts to stem consumption.*fn13 See, e.g., Rubin, 514 U. S., at 487; United States
v. Edge Broadcasting Co., 509 U. S. 418, 434 (1993); ante, at 27.
Furthermore, if the government's intention is to limit consumption by a
particular segment of the community -- in this case, minors -- it is
appropriate, indeed necessary, to tailor advertising restrictions to the
areas where that segment of the community congregates -- in this case, the
area surrounding schools and playgrounds.
|
| [233] |
However, I share the majority's concern as to whether the 1,000-foot
rule unduly restricts the ability of cigarette manufacturers to convey
lawful information to adult consumers. This, of course, is a question of
line-drawing. While a ban on all communications about a given subject
would be the most effective way to prevent children from exposure to such
material, the state cannot by fiat reduce the level of discourse to that
which is "fit for children." Butler v. Michigan, 352 U. S. 380, 383
(1957); cf. Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 74 (1983)
("The level of discourse reaching a mailbox simply cannot be limited to
that which would be suitable for a sandbox"). On the other hand, efforts
to protect children from exposure to harmful material will undoubtedly
have some spillover effect on the free speech rights of adults. See, e.g.,
FCC v. Pacifica Foundation, 438 U. S. 726, 749-750, and n. 28
(1978).
|
| [234] |
Finding the appropriate balance is no easy matter. Though many factors
plausibly enter the equation when calculating whether a child-directed
location restriction goes too far in regulating adult speech, one crucial
question is whether the regulatory scheme leaves available sufficient
"alternative avenues of communication." Renton v. Playtime Theatres, Inc.,
475 U. S. 41, 50 (1986); Members of City Council of Los Angeles v.
Taxpayers for Vincent, 466 U. S. 789, 819 (1984) (Brennan, J.,
dissenting); accord ante, at 33. Because I do not think the record
contains sufficient information to enable us to answer that question, I
would vacate the award of summary judgment upholding the 1,000-foot rule
and remand for trial on that issue. Therefore, while I agree with the
majority that the Court of Appeals did not sufficiently consider the
implications of the 1,000-foot rule for the lawful communication of
adults, see ante, at 31-36, I dissent from the disposition reflected in
Part III-B-2 of the Court's opinion.
|
| [235] |
There is no doubt that the 1,000-foot rule prohibits cigarette
advertising in a substantial portion of Massachusetts' largest cities.
Even on that question, however, the parties remain in dispute as to the
percentage of these urban areas that is actually off limits to tobacco
advertising. See ante, at 32. Moreover, the record is entirely silent on
the impact of the regulation in other portions of the Commonwealth. The
dearth of reliable statistical information as to the scope of the ban is
problematic.
|
| [236] |
More importantly, the Court lacks sufficient qualitative information
as to the areas where cigarette advertising is prohibited and those where
it is permitted. The fact that 80% or 90% of an urban area is unavailable
to tobacco advertisements may be constitutionally irrelevant if the
available areas are so heavily trafficked or so central to the city's
cultural life that they provide a sufficient forum for the propagation of
a manufacturer's message. One electric sign in Times Square or at the foot
of the Golden Gate Bridge may be seen by more potential customers than a
hundred signs dispersed in residential neighborhoods.
|
| [237] |
Finally, the Court lacks information as to other avenues of
communication available to cigarette manufacturers and retailers. For
example, depending on the answers to empirical questions on which we lack
data, the ubiquity of print advertisements hawking particular brands of
cigarettes might suffice to inform adult consumers of the special
advantages of the respective brands. Similarly, print advertisements,
circulars mailed to people's homes, word of mouth, and general information
may or may not be sufficient to imbue the adult population with the
knowledge that particular stores, chains of stores, or types of stores
sell tobacco products.*fn14
|
| [238] |
In granting summary judgment for the respondents, the District Judge
treated the First Amendment issues in this suit as pure questions of law
and stated that "there are no material facts in dispute concerning these
issues." 84 F. Supp. 2d, at 183. With due respect, I disagree. While the
ultimate question before us is one of law, the answer to that question
turns on complicated factual questions relating to the practical effects
of the regulations. As the record does not reveal the answer to these
disputed questions of fact, the court should have denied summary judgment
to both parties and allowed the parties to present further
evidence.
|
| [239] |
I note, moreover, that the alleged "overinclusivity" of the
advertising regulations, ante, at 8, (Thomas, J., concurring in part and
concurring in judgment), while relevant to whether the regulations are
narrowly tailored, does not "beli[e]" the claim that tobacco advertising
imagery misleads children into believing that smoking is healthy,
glamorous, or sophisticated, ibid. See Brief of Amicus Curiae American
Legacy Foundation in Support of Respondent 4-5 and nn. 9, 10; Brief of
Amicus Curiae City of Los Angeles in Support of Respondent 4 (documenting
charge that advertisements for cigarettes and smokeless tobacco target
underage smokers). For purposes of summary judgment, the State conceded
that the tobacco companies' advertising concerns lawful activity and is
not misleading. Under the Court's disposition of the case today, the State
remains free to proffer evidence that the advertising is in fact
misleading. See Virginia Bd. of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U. S. 748, 771 (1976) ("[M]uch commercial speech is not
provably false, or even wholly false, but only deceptive or misleading. We
foresee no obstacle to a State's dealing effectively with this problem").
I would vacate the grant of summary judgment to respondents on this issue
and remand for further proceedings.
|
| [240] |
The Sales Practice and Indoor Advertising Restrictions
|
| [241] |
After addressing petitioners' challenge to the sales practice
restrictions imposed by the Massachusetts statute, the Court concluded
that these provisions did not violate the First Amendment. I concur in
that judgment, but write separately on this issue to make two brief
points.
|
| [242] |
First, I agree with the District Court and the Court of Appeals that
the sales practice restrictions are best analyzed as regulating conduct,
not speech. See 218 F. 3d, at 53. While the decision how to display one's
products no doubt serves a marginal communicative function, the same can
be said of virtually any human activity performed with the hope or
intention of evoking the interest of others. This Court has long
recognized the need to differentiate between legislation that targets
expression and legislation that targets conduct for legitimate
non-speech-related reasons but imposes an incidental burden on expression.
See, e.g., United States v. O'Brien, 391 U. S. 367 (1968). However
difficult that line may be to draw, it seems clear to me that laws
requiring that stores maintain items behind counters and prohibiting
self-service displays fall squarely on the conduct side of the line.
Restrictions as to the accessibility of dangerous or legally-restricted
products are a common feature of the regulatory regime governing American
retail stores. I see nothing the least bit constitutionally problematic in
requiring individuals to ask for the assistance of a salesclerk in order
to examine or purchase a handgun, a bottle of penicillin, or a package of
cigarettes.
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| [243] |
Second, though I admit the question is closer, I would, for similar
reasons, uphold the regulation limiting tobacco advertising in certain
retail establishments to the space five feet or more above the floor.*fn15 When viewed in isolation, this provision appears to
target speech. Further, to the extent that it does target speech it may
well run into constitutional problems, as the connection between the ends
the statute purports to serve and the means it has chosen are dubious.
Nonetheless, I am ultimately persuaded that the provision is
unobjectionable because it is little more than an adjunct to the other
sales practice restrictions. As the Commonwealth of Massachusetts can
properly legislate the placement of products and the nature of displays in
its convenience stores, I would not draw a distinction between such
restrictions and height restrictions on related product advertising. I
would accord the Commonwealth some latitude in imposing restrictions that
can have only the slightest impact on the ability of adults to purchase a
poisonous product and may save some children from taking the first step on
the road to addiction.
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| [244] |
III.
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| [245] |
Because I strongly disagree with the Court's conclusion on the
preemption issue, I dissent from Parts II-A and II-B of its opinion.
Though I agree with much of what the Court has to say about the First
Amendment, I ultimately disagree with its disposition or its reasoning on
each of the regulations before us.*fn16
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Opinion Footnotes |
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| [246] |
*fn1 The Senate Report explained that the pre-emption
provision "would in no way affect the power of any State or political
subdivision of any State with respect to the taxation or the sale of
cigarettes to minors, or the prohibition of smoking in public buildings,
or similar police regulations. It is limited entirely to State or local
requirements or prohibitions in the advertising of cigarettes." S. Rep.
No. 91-566, p. 12 (1969).
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| [247] |
*fn2 Other regulations prohibit the sale of tobacco
products "in any manner other than in a direct, face-to-face exchange,"
forbid self-service displays, and require that tobacco products be
accessible only to store personnel. See §§21.04(2)(a), (c)-(d),
§§22.06(2)(a), (c)-(d). In addition, they prohibit sampling and
promotional giveaways. See §§21.04(1), 22.06(1). I agree with the Court,
see ante, at 38-41, that these regulations, which govern conduct rather
than expression, should be upheld under the test of United States v.
O'Brien, 391 U. S. 367 (1968).
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| [248] |
*fn3 Tobacco advertising provides a good illustration. The
sale of tobacco products is the subject of considerable political
controversy, and not surprisingly, some tobacco advertisements both
promote a product and take a stand in this political debate. See Brief for
National Association of Convenience Stores as Amicus Curiae 20-22. A
recent cigarette advertisement, for example, displayed a brand logo next
to text reading, "Why do politicians smoke cigars while taxing
cigarettes?" App. to Brief for National Association of Convenience Stores
as Amicus Curiae 2a.
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| [249] |
*fn4 This is not to say that the regulation does nothing at
all. As the Court points out, see ante, at 35, security concerns require
that convenience stores be designed so that the interior of the store is
visible from the street. See also Occupational Safety and Health
Administration, Recommendations for Workplace Violence Prevention Programs
in Late-Night Retail Establishments 6 (1998) ("Shelves should be low
enough to assure good visibility throughout the store"). The §21.04(5)(b)
ban on displays below five feet and the §21.04(5)(a) ban on displays
visible from outside the store, combined with these security concerns,
would prevent many convenience stores from displaying any tobacco products
at all. Thus, despite the State's disclaimers, see Brief for Respondents
30 ("The State, quite clearly, is not trying to suppress altogether the
communication of product information to interested consumers"), the
restrictions effectively produce a total ban.
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| [250] |
*fn5 See, e.g., Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U. S. 132, 146-147 (1963) ("[W]e are not to conclude that
Congress legislated the ouster of this [state] statute ... in the absence
of an unambiguous congressional mandate to that effect"); Cippolone, 505
U. S., at 533 (Blackmun, J., joined by Kennedy and Souter, JJ., concurring
in part, concurring in judgment in part, and dissenting in part) ("The
principles of federalism and respect for state sovereignty that underlie
the Court's reluctance to find pre-emption where Congress has not spoken
directly to the issue apply with equal force where Congress has spoken,
though ambiguously. In such cases, the question is not whether Congress
intended to pre-empt state regulation, but to what extent. We do not,
absent unambiguous evidence, infer a scope of pre-emption beyond that
which clearly is mandated by Congress' language" (emphasis
deleted)).
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| [251] |
*fn6 Cf. Central Hanover Bank & Trust Co. v.
Commissioner, 159 F. 2d 167, 169 (CA2 1947) (L. Hand, J.) ("There is no
more likely way to misapprehend the meaning of language -- be it in a
constitution, a statute, a will or a contract -- than to read the words
literally, forgetting the object which the document as a whole is meant to
secure").
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| [252] |
*fn7 In Cipollone v. Liggett Group, Inc., 505 U. S. 504,
521 (1992), we held that one of the consequences of this change in
language was that after 1969 the statute preempts some common-law
actions.
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| [253] |
*fn8 Because of the nature of magazine publishing and
distribution, it is conceivable that a State or locality might cause the
kind of regulatory confusion the statute was drafted to prevent by
adopting a law prohibiting the advertising of cigarettes in any
publication distributed within its boundaries. There is at least a modicum
of support for the suggestion that Congress may have intended the
preemption of such restrictions. See id., at 515, n. 11 (noting that
California was considering such a ban at the time Congress was considering
the 1969 Act). However, the concerns posed by the diverse regulation of
national publications are not present with regard to the local regulation
of the location of signs and billboards.
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| [254] |
*fn9 At one point, the Court briefly argues that it would
be wrong to conclude that Congress intended to preclude only content
restrictions, because it imposed a location restriction (a ban on
television and radio advertising) in another provision of the same bill.
See ante, at 18. This argument is something of a non sequitur. The fact
that Congress, in adopting a comprehensive legislative package, chose to
impose a federal location restriction for a national medium has no bearing
on whether, in a separate provision, the Legislature intended to strip
States and localities of the authority to impose location restrictions for
purely local advertising media.
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| [255] |
*fn10 Petitioners suggest in passing that Massachusetts'
regulation amounts to a "near-total ba[n]," Brief for Petitioners
Lorillard Tobacco Co. et al. 22, and thus is a de facto regulation of the
content of cigarette ads. But we need not consider today the circumstances
in which location restrictions approximating a total ban might constitute
regulation of content and thus be preempted by the Act, because
petitioners have failed to introduce sufficient evidence to create a
genuine issue as to that claim. Petitioners introduced maps purporting to
show that cigarette advertising is barred in 90.6% of Boston proper, 87.8%
of Worcester, and 88.8% of Springfield. See App. 165-167. But the maps do
not distinguish between the area restricted due to the regulation at issue
here and the area restricted due to pre-existing regulations, such as
general zoning requirements applicable to all outdoor advertising. Nor do
the maps show the percentage (with respect to either area or population)
of the State that is off limits to cigarette advertising; they cover only
three cities containing approximately 14% of the State's population. See
U. S. Census Bureau, Statistical Abstract of the United States 28, 47, 49
(1999) (providing population figures for 1998). The area in which
cigarette advertising is restricted is likely to be considerably less in
less densely populated portions of the State. And even on the
interpretation of this data most favorable to petitioners, the
Massachusetts regulation still permits indoor and outdoor cigarette
advertising in at least 10% of the geographical area of the State. In
short, the regulation here is not the equivalent of a total ban on
cigarette advertising.
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| [256] |
*fn11 Hence, while I agree in large part with the
substance of the arguments proffered by the respondents and the United
States on the preemption issue, I reject their conclusion that the
content/location distinction finds expression in the limiting phrase
"based on smoking and health." See Brief for Respondent 20; Brief for
United States as Amicus Curiae 5; accord Penn Advertising of Baltimore,
Inc. v. Mayor and City Council of Baltimore, 63 F. 3d 1318 (CA4 1995).
Instead, I would follow the First, Second, and Seventh Circuits in
concluding that a statute regulating the location of advertising is not a
"requirement or prohibition ... with respect to ... advertising" within
the meaning of the 1969 Act. See Consolidated Cigar Corp. v. Reilly, 218
F. 3d 30, 39-41 (CA1 2000) (case below); Greater N.Y. Metropolitan Food
Council, Inc. v. Giuliani, 195 F. 3d 100, 104-110 (CA2 1999); Federation
of Advertising Industry Representatives, Inc. v. Chicago, 189 F. 3d 633,
636-640 (CA7 1999).
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| [257] |
*fn12 The Court's holding that federal law precludes
States and localities from protecting children from dangerous products
within 1,000 feet of a school is particularly ironic given the Court's
conclusion six years ago that the Federal Government lacks the
constitutional authority to impose a similarly-motivated ban. See United
States v. Lopez, 514 U. S. 549 (1995). Despite the absence of any
identified federal interest in creating "an invisible federal zone
extending 1,000 feet beyond the (often irregular) boundaries of the school
property," as the majority construes it today, the "statute now before us
forecloses the States from experimenting and exercising their own judgment
in an area to which States lay claim by right of history and expertise,"
id., at 583 (Kennedy, J., concurring). I wonder why a Court sensitive to
federalism concerns would adopt such a strange construction of statutory
language whose quite different purpose Congress took pains to
explain.
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| [258] |
*fn13 Moreover, even if it were our practice to require a
particularized showing of the effects of advertising on consumption, the
respondents have met that burden in this suit. See ante, at 27-31
(summarizing the evidence).
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| [259] |
*fn14 As the above observations indicate, the analysis as
to whether the 1,000-foot rule impermissibly curtails speech between
adults will require a particularized analysis that may well ask slightly
different questions --and conceivably could reach different results --
with regard to the constitutionality of the restrictions as applied to
manufacturers and retailers.
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| [260] |
*fn15 This ban only applies to stores located within
1,000-feet of a school or playground and contains an exception for
adult-only establishments. See ante, at 5.
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| [261] |
*fn16 Reflecting my partial agreement with the Court, I
join Parts I, II-C, II-D, and III-B-1 and concur in the judgment reflected
in Part III-D.
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