Reply #33: Already a ruling in favor of commercial freedom of speech...

[LeftHander]

The "Court" already have protected substances illegal for minors...and now they have rules against individual speech. If the young man was advertising "Bong Hits 4 Jesus" t-shirts with that banner his rights would of been protected.

So I say to that young man...make a t-shirt design, sell the shirts on a website and advertise them with another banner...with the appropriate disclaimer: This phrase is meant for entertainment and humor purposes for adults only and does not encourage the use of illegal drugs by Jesus or anyone else.

As an adult passing by I would like my rights to be preserved to be offered "Bong Hits 4 Jesus" t-shirts.

Does that sound effed up? Of course it does. Clearly commercial interests outwiegh those of individual expression. Dammit I should of argued this case.

http://www.firstamendmentcenter.org/faclibrary/casesumm...

Case Summary for Lorillard Tobacco Co. v. Reilly

Argued: April 25, 2001
Decided: June 28, 2001
Issue: Whether Massachusetts' regulations limiting the advertising of tobacco products within 1,000 feet of playgrounds, parks and schools violates the commercial free-speech rights of the tobacco companies.

Preemption Issue — Whether the state regulations on tobacco advertising are preempted by the Federal Cigarette Labeling and Advertising Act.
Answer: The court determined 5-4 that the state restrictions on cigarette ads were preempted by the Federal Cigarette Labeling and Advertising Act.

Because cigars and smokeless tobacco products are not covered by the cigarette-labeling act, the Court proceeded to the First Amendment question. All nine justices determined that there were constitutional problems with the 1,000 ft. ban. Five justices ruled the ban was flatly unconstitutional. Four justices would have sent the 1,000 ft. advertising issue back to the trial court for development of more facts.
Decisions Below: The opinions of the federal district court are located at Lorillard Tobacco Co. v. Reilly, 76 F.Supp. 2d 124 (D. Mass. 1999) and Lorillard Tobacco Co. v. Reilly, 84 F.Supp. 2d 180 (D. Mass. 2000). The opinion of the 1st U.S. Circuit Court of Appeals is located at Consolidated Cigar Corp. v. Reilly, 218 F.3d 30 (1st Cir. 2000).
Facts:

In January 1999, the Massachusetts attorney general implements regulations limiting tobacco advertising. A key provision limits outdoor tobacco advertising within 1,000 feet of any public playground, playground in public parks and any secondary or elementary school. Another provision prohibits "point of sale advertising" within 1,000 feet of playgrounds or schools. The law defines point of sale advertising to include advertising placed lower than five feet in any store accessible to minors.

In May 1999, several tobacco companies challenge the constitutionality of the regulations on preemption and First Amendment grounds. With respect to the First Amendment argument, the companies argue that the restrictions are too broad and violate their rights to engage in commercial speech.

After a federal district court rejects the companies' preemption and the vast majority of its First Amendment claims, the companies appeal to the 1st Circuit.

The 1st Circuit also rules in favor of nearly all the regulations, including the 1,000 foot ban.

The 1st Circuit wrote: "although the geographical scope of the advertising restrictions is substantial, we do not find the restrictions equivalent to a 'blanket ban' on speech."
Petitioner's Principles: Regulations on truthful and nonmisleading commercial speech are constitutional if the government: (1) has a substantial interest for its regulation; (2) the regulation advances the governmental interest in a direct and material way; and (3) the regulation is narrowly drawn. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980).

Governmental interests in protecting minors from harmful speech do not justify a wholesale suppression of the free-speech rights of adults. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
Legal Basis: The 1,000 ft-regulation violates the final prong of the Central Hudson test because it sweeps far too broadly. "The uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring," the Court wrote. Even though the state has a substantial interest in protecting minors from tobacco usage, tobacco manufacturers and adult consumers have a First Amendment right to receive information about lawful products.
Majority: O'Connor (Rehnquist, Scalia, Kennedy and Thomas)
Concur: Kennedy and Thomas
Partial Dissent: Stevens (joined by Souter, Ginsberg, and Breyer)
Quotable: As the State protects children from tobacco advertisements, tobacco manufacturers and retailers and their adult consumers still have a protected interest in communication. (O'Connor) My continuing concerns that the test gives insufficient protection to truthful, nonmisleading commercial speech require me to refrain from expressing agreement with the Court's application of the third part of Central Hudson. (Kennedy)

I have observed previously that there is 'no philosophical or historical basis for asserting that 'commercial' speech is of lower value' than 'noncommercial speech.' Indeed, I doubt whether it is even possible to draw a coherent distinction between commercial and noncommercial speech. (Thomas)

Nevertheless noble ends do not save a speech restricting statute whose means are poorly tailored. (Stevens)