A Victory for Commercial Speech Rights in Massachusetts

A federal court in Massachusetts recently invalidated the City of Worcester’s total ban on outdoor advertising for tobacco products within the city limits.  Unsurprisingly, the court relied on the Supreme Court’s precedent in Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), which had essentially settled the same question over a decade earlier by overturning a state-wide ban on outdoor advertising for tobacco products.

According to the court, the only distinction the defendants identified between the Worcester ordinance and the Massachusetts statute that the Supreme Court struck down under the First Amendment in Lorillard was “that the Ordinance’s purpose is to protect adults as well as children.”  But from a constitutional standpoint, that really is a distinction without a difference.

In Lorillard, the Supreme Court invalidated a Massachusetts statute enacted to protect minors from tobacco products.  The advertising restrictions were almost identical to the restrictions in the Worcester Ordinance, except that the statute’s geographical requirements were somewhat more lenient.  In the statute at issue in Lorillard advertisements visible from the street were only prohibited within 1000 feet of a school or playground.  In the Worcester Ordinance they are prohibited anywhere in the City.

Quite predictably, then, the district court concluded that the attorneys for Worcester failed to show that the outdoor advertising ban was not more extensive than necessary to advance the City’s substantial interest in preventing underage tobacco use.  Neither the City’s goal to prevent tobacco related health problems among adults nor its correlative goal regarding minors could satisfy all four prongs of the Central Hudson test.

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