Tobacco and Free Speech

Massachusetts already has an admirable record of curbing tobacco use. Per-capita consumption of cigarettes among Bay Staters has fallen by 34 percent over the past decade, three times the national rate.

A sharp increase in the state tax on tobacco products and an aggressive antismoking campaign have helped accomplish this. But Massachusetts wants to do more - specifically, it wants to ban tobacco advertising anywhere within 1,000 feet of a school or public playground.

That would effectively shut down such advertising on billboards or storefronts in about 90 percent of the state's populated areas. The legislature has approved the ban, but the US Supreme Court will have the final say about whether it should be enforced (see story, page 1).

The court's essential question is whether the state's interest in shielding children from tobacco advertising outweighs the right of cigarette companies to promote a legal product. In a long line of past cases, the court has moved toward greater First Amendment protection of so-called "commercial speech." It has, for example, backed lawyers' rights to advertise their services, homeowners' rights to post "for sale" signs (even if they were perceived to encourage "white flight"), and the right of liquor stores to advertise their prices.

Massachusetts, however, is invoking a strong public interest - keeping away from children the alluring images of smoking portrayed in ads. Few would dispute the public-health rationale for trying to prevent another generation of citizens from becoming tobacco users.

The court has to decide whether the state's broad ban on advertising is tailored tightly enough to the goal of protecting children - or whether it reaches too far. Those opposed to the ban argue that it would stifle the speech rights of businesses and allow government to paternalistically censor messages it considers "harmful."

That argument could weigh heavily with a court bent on refining its decisions in this First Amendment area. But even a ruling against Massachusetts should have little impact on the antismoking trend the state has done so much to encourage. Tobacco is clearly failing in the marketplace of products and ideas.

(c) Copyright 2001. The Christian Science Monitor

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