Supreme Court Dispatches

Joe Camel Versus Hamburglar

What is it about Big Tobacco that makes all us so crazy? Why is this vice different from all other vices? Is it simply the blackness of the hearts (and lungs?) of the fat cats at the cigarette companies? Or the tobacco lobby’s brazen domination of Congress, and even, as it would now seem, the president (who’s reportedly {{stiffing#2:}} the federal tobacco-litigation team to the tune of $55 million)? Is it the decades of fraud and deception? The needless illness and death? Why do we find the nice folks at Philip Morris so easy to hate, while McDonald’s gets off scot-free?

Well, jump back Hamburglar, because Clarence Thomas has set his sights on you. And there’s nowhere to run, Grimace. Because this time it’s personal.

Oral argument today in {{LorillardTobacco v. Reilly#2:}}, stands mainly for the proposition that in tobacco cases, perception is everything. The facts are virtually undisputed. The question turns mostly on how you cast Big Tobacco. Is it the misunderstood victim of a vengeful campaign to dismantle a venerable American institution? Or a mighty Hydra, pouring billions of dollars into addicting our children? Whose side are you on anyway, Marlboro Man?

Even the nine justices betray their own biases about smoking today, as they question industry and government lawyers about the constitutionality of Massachusetts’ draconian advertising laws. Justice Ginsburg announces to Jeffrey Sutton—attorney for Lorillard, Brown & Williamson, R.J. Reynolds, and Philip Morris: “Tobacco is not like any other commodity. It’s highly addictive. It’s especially dangerous to children. … This is a drug most people will get hooked on.” Justice Scalia, on the other hand, wonders why tobacco should be treated any differently than porn. Is tobacco different than other dangerous substances? There’s the rub.

Former Massachusetts Attorney General Scott Harshbarger also seems to be of the Big-Tobacco-as-Darth-Vader school of legislating. In 1998, after signing off on the huge 46-state settlement with the tobacco companies, Harshbarger enacted in his own state the same advertising restrictions he’d been unable to shoehorn into the national agreement. The Massachusetts law bars retail and convenience stores from displaying outdoor cigarette ads within 1,000 feet of schools, parks, or playgrounds and requires that cigarette, cigar, and smokeless tobacco ads in stores be posted five feet off the ground so that children and dwarves will not see them.

The tobacco companies sued, alleging that the Federal Cigarette Labeling and Advertising Act (FCLAA) of 1965 pre-empts state regulation on cigarette ads and that the Massachusetts law violates their First Amendment free-speech rights. The tobacco companies lost on both claims in the district court and again in the 1st Circuit.

Now if you’re thinking, “Hmm … pre-emption doctrine … where have I heard that before,” the answer may be in {{last year’s pre-emption case#52653:iMsg=13}}, {{Natsios v. National Foreign Trade Council#2:}} involving, well, Massachusetts, and its attempt to enact its own foreign policy toward Burma. What is up with Massachusetts? Tougher foreign policy, stricter advertising regulations … are they building their own space program too?

Although many of the amicus briefs in Lorillard come from advertising and free-speech groups hoping the court will do away with the long-standing distinction between vigorously protected speech and less-protected “commercial” speech, no one but Sutton really gets to talk about the speech claims today, except to say, “If I might use my remaining 12 seconds to address the First Amendment issue. …” So, it looks like the court’s golden opportunity to gut the goony four-part commercial speech test from {{Central Hudson v. Public Service#2:}} is lost. Instead, undaunted by yesterday’s exercise in statutory construction, the court manages to devote the better part of an hour to interpreting the words “based on” in the FCLAA.

Did Congress mean to pre-empt all state regulation of cigarette ads? Or did they mean to regulate merely the warning label on cigarette labels? You be the justice:

FCLAA 5(b) provides that: “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.”

Not surprisingly, the good folks at Jones, Day, Munger, Tolles, and Latham & Watkins, and every other behemoth law firm representing the tobacco companies here today, feel that the language above precludes the states from regulating virtually anything to do with smoking. Sutton says it was a “bargain” struck between Congress and the cigarette companies when FCLAA was amended in 1969. No advertising of smokes on television and radio, in exchange for a blanket ban on state regulation of other kinds of ads.

Breyer points out that the petitioners’ maps suck. How is he supposed to figure out what proportion of Massachusetts is affected if he can’t even find Worcester on their damn maps? Sutton then turns to the speech issue and explains that if racist speech and “fighting words” warrant strict scrutiny (the highest order of governmental protection), why is commercial speech accorded less protection? Here is where Ginsburg reminds Sutton that smoking is more dangerous than “sticks and stones may break my bones.”

Smoking is probably also more dangerous than a beating with actual sticks and stones, but Ginsburg is too subtle to tell us that.

“There is no vice exception to the First Amendment,” thunders Sutton (except he thunders very softly because both he and William Porter, the assistant attorney general from Massachussets, speak so softly, you might think a baby was napping in the clerk’s alcove this morning).

“Speak up!” hollers Justice O’Connor at Porter.

Big Tobacco is walking a thin line today because it must argue for the right to produce glossy adds that—if spectacularly effective—will lead millions more American citizens to a slow painful death from lung cancer. It’s tough to make that sympathetic. The Massachusetts regulations came into effect in part because when the luscious smoking billboards came down pursuant to the 1998 national settlement, billions of dollars of tobacco money went to putting luscious smoking ads in convenience stores, bus shelters, and other places kids hang out. Tobacco companies spend millions to addict new smokers, the same way gun companies spend millions to hook new killers. But so long as it’s legal to smoke and kill, they have the right to advertise. Really, the court is simply deciding how effective they’re going to let the ads for lethal, legal, products be.

Justice Stevens, patron saint of children and, well, me, asks Sutton: “What is the message your advertising tries to convey?

Sutton: “Brand loyalty.”

Stevens: “ONLY brand loyalty?”

Sutton: “Yes.”

Souter tags in: “If that were so, you’d only need the name and image of your product.” He adds that it’s not necessary to post ads that say “Smart Kids Smoke” or feature “Wind in the Willows characters” to show that cigarette ads target kids. Ads show “people in country suits, bars, and beaches doing healthy and sophisticated things.”

Scalia goes for the glove-save by reminding Sutton that ads can say “Smoking ain’t so bad. It’s worth it,” and they’d be permissible too. Advertising is legal.

William Porter, arguing for the state of Massachusetts, has a tough time parsing the “based on smoking and health” language in the pre-emption statute. A good deal of wrangling about the legislative history of the text ensues. Porter then concedes to Breyer and Kennedy that Massachusetts could ban all smoking and cigarette ads without violating the pre-emption statute. Four justices’ jaws hit the bench.

Barbara Underwood, the acting solicitor general, is given 10 minutes to support Massachusetts. With a minute before the buzzer, the booming, cartilage-crushing voice of Clarence Thomas rings out. Even though he already spoke once last term. He offers a hypothetical: “What if we learned that eating at fast-food joints, like McDonald’s, causes health problems for kids.” He wonders what principle Underwood would use to distinguish regulating McDonald’s ads from regulating Joe Camel.

“It’s the distinction between a wide variety of health dangers and the unparalleled magnitude of the smoking problem,” she replies, especially in this “critical window of 14.5 to 18.” Smoking is different enough to warrant ad regulation, she’s saying, but not different enough to be illegal.

Smoking is different for Thomas, because last year in a speech he reamed the Supreme Court press corps for reporting in the {{FDA-tobacco case#35174:iMsg=4}} how many justices smoked. It’s irrelevant, he feels. He smokes, by the way.

What possessed Thomas to speak on the last day of oral argument this term? The indignity of the Big Mac? The insipidness of the Filet-O-Fish? The wilted lettuce leaf that is the commercial-speech jurisprudence of the First Amendment? Or the fact that he understands the paradox underlying this mess of a case: Smoking, like McDonald’s, can kill you without ever breaking a law.