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First Amendment Library:
William W. Porter


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." 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).