A First Amendment look at the statutory ban on tobacco advertisements and the self-regulation of alcohol advertisements.

• Author: Campbell, Hugh

Table of Contents I. Introduction. II. Overview of the First Amendment and Commercial Speech III. History and Health Effects of Tobacco and Alcohol in the U.S. A. Tobacco in the U.S B. Alcohol in the U.S. IV. Regulation of Commercial Speech of Harmful Products A. Deference to Congress and Broadcast Regulation B. Tobacco Advertisement Regulation Under Central Hudson C. Distinguishing Alcohol Advertising Under Central Hudson V. Conclusion. I. INTRODUCTION

In 1970, Congress passed the Cigarette Labeling and Advertising Act which prohibited advertising of cigarettes on "any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission." (1) The Federal Communications Commission ("FCC") "regulates interstate and international communications by radio, television, wire, satellite and cable in all 50 states, the District of Columbia and U.S. territories." (2) The prohibition was later amended to include a ban on advertising little cigars. (3) Unlike tobacco, alcohol advertisements are not prohibited. (4) Instead, broadcast alcohol advertising is only subject to self-regulation by private organizations. (5)

When the Cigarette Labeling and Advertising Act was passed, the Supreme Court was less than sympathetic to commercial speech First Amendment claims. (6) Since the passage of this Act, the Court has changed its Commercial Speech Doctrine and has become friendlier to parties challenging a regulation based on the First Amendment. (7) Currently, the Court's commercial speech test comes from Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. (8) The Court set out a four-prong test, henceforth referred to as the Central Hudson test, for First Amendment claims in the commercial speech setting:

If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive. (9) Because tobacco advertising regulations were enacted by Congress (10) and deal with the broadcast medium, (11) the Court will be more deferential in its First Amendment analysis. After taking a closer look at the Court's First Amendment Doctrine, it becomes clear why the Supreme Court would uphold the ban on tobacco advertising in the broadcast medium but would overturn a similar ban on alcohol advertising. The regulation of these two vices can be distinguished based on the substantial governmental interest prong of the Central Hudson test. (12) Due to the destructive nature of tobacco, (13) the government has a much stronger interest in banning its advertisement compared to alcohol.

Part I is a summary of this note. Part II provides an overview of current First Amendment Commercial Speech Doctrine and how the Court evolved to this point. In Part III of this note, the social and legal history of tobacco and alcohol, as well as the health effects of each, are discussed. In Part IV, the Commercial Speech Doctrine is applied to tobacco and alcohol, showing how the ban on alcohol and tobacco advertising would be treated under the Court's current First Amendment Doctrine. Part V concludes that a complete ban on tobacco advertising in broadcasting would be held constitutional while a similar ban on alcohol would be found unconstitutional due to the severe health effects from any amount of smoking.

2. OVERVIEW OF THE FIRST AMENDMENT AND COMMERCIAL SPEECH

   The First Amendment of the United States Constitution states that "Congress shall make no law ... abridging the freedom of speech, or of the press...." (14) In 1942, the Supreme Court was faced with a First Amendment claim to commercial speech. (15) This was the first case in which the Supreme Court reached the conclusion that the Constitution does not impose any restraint on government regulation of purely commercial advertising. (16)

   In Valentine v. Chrestensen, the owner of a United States Navy submarine moved to New York, where he set up the submarine as an attraction. (17) To promote this attraction, the owner printed out handbills for distribution. (18) He was advised by the Police Commissioner that distribution of commercial handbills was not allowed on city streets. (19) To avoid this law, the owner of the submarine printed two-sided handbills, one side had an advertisement and the other a criticism of city rules. (20) After the submarine owner was stopped from distributing the handbills, he brought suit in order to enjoin the city from stopping his distribution. (21)

   The suit reached the Supreme Court after the lower federal courts granted an injunction in favor of the submarine owner. (22) The Court reversed the Circuit Court decision and held that commercial speech is outside of the protection granted by the First Amendment. (23) The Court held:

   We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment. The question is not whether the legislative body may interfere with the harmless pursuit of a lawful business, but whether it must permit such pursuit by what it deems an undesirable invasion of, or interference with, the full and free use of the highways by the people in fulfillment of the public use to which streets are dedicated. (24) In 1976, the Supreme Court repudiated Valentine v. Chrestensen (25) The Court was given the chance to change the Commercial Speech Doctrine in a case brought by prescription drug consumers, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (26) The Virginia State Board of Pharmacy regulated pharmacists through a licensing system. (27) The Board restricted price advertising of prescription drugs to preserve the professional standards of pharmacists. (28)

   The Court held that the First Amendment protects commercial speech. (29) The Court held that a category of speech must be distinguished by content, not its commercial character, to fall outside the protection of the First Amendment. (30)

   The Court also found that the prescription drug consumers had standing to bring suit due to their First Amendment interest in receiving drug information. (31) The Court then weighed the consumer's right to receive information against the Board's justification in restricting price advertising. (32) The Board believed that price advertisements would "make it impossible" for pharmacists to supply professional services and would cause consumers to make bad choices by going to lower quality pharmacists. (33) The Court found that the regulation protected citizens by keeping the consumers ignorant. (34) The Court overturned this paternalistic regulation, holding that the best way to protect the consumer is through the free flow of information. (35)

   Finally, in bringing commercial speech within the area of protection of the First Amendment, the Court gave states the power to restrict advertisements if the advertisements are false or misleading, if illegal transactions are being advertised, or if the state is leaving open ample alternative channels of communication. (36) The Court also noted the complications arising from advertisements in broadcast media. (37)

   Four years later, the Supreme Court set up a clearer four-part test for its new Commercial Speech Doctrine in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. (38) The Court reiterated that commercial speech is protected by the First Amendment, but to a lesser extent than non-commercial speech. (39)

   The commercial speech standard set up by the Court begins by determining whether the speech is protected by the First Amendment. (40) To be given First Amendment protection, the speech must concern a lawful activity and not be misleading. (41) If the speech is protected by the First Amendment, the government must show a substantial governmental interest for the speech restrictive regulation. (42) This substantial governmental interest must be directly advanced by the regulation, and the regulation must be no "more extensive than is necessary to serve that interest." (43)

   During a time when the energy supply was a concern, New York enacted a law that completely banned Central Hudson, a utility company, from advertising use of its electricity. (44) Using the new Central Hudson test, the Court held that the total ban was more extensive than necessary to promote the State's interest in conservation. (45) Thus, the total ban on promotional advertising was unconstitutional under the First and Fourteenth Amendments. (46)

   First, the Court determined that advertisements promoting energy use are protected under the First Amendment because they endorse a legal activity by means that are neither false nor misleading. (47) Second, the Court found that the two interests of the state, conservation of energy and fair and efficient energy rates, were both substantial. (48) Even though both interests were substantial, the Court found that only the interest in energy conservation was directly advanced by the advertising ban. (49) Finally, the Court held that the advertising ban was unconstitutional because the regulation was "more extensive...