- The Washington Times - Sunday, July 8, 2001

The First Amendment guarantee of freedom of speech means we have to put up with all sorts of messages from people whose views we find vile, offensive, sickening and even dangerous. Nazis, communists, pornographers, WWF stars and Bill O'Reilly are all free to speak. But when it comes to another despised minority, the tobacco industry, the state of Massachusetts has pursued a simple policy: Shut up.
It thought that was permissible because the censorship affected mere "commercial speech." But in its recent decision, the Supreme Court said commercial speech is real speech, deserving real protection. Even cigarette companies can't be silenced just because some government thinks we would be better off not hearing from them.
The mainstay of the Massachusetts policy, struck down by the court, is a ban on outdoor advertising for tobacco products within 1,000 feet of any playground located in a park or school a regulation that puts up to 90 percent of some cities off-limits. The regulation also covers signs located inside stores that are visible to passersby, even if they contain nothing but prices. Any store in these zones is allowed to have just one outward-facing sign black and white, no more than 576 square inches in size and stating, "Tobacco products sold here."
The supposed point of all these rules is not to suppress free speech but to prevent "unfair or deceptive" advertising. What's unfair about a Marlboro billboard or a sign publicizing the price a store charges for a carton of Virginia Slims?
The deception, it seems, is that the forbidden ads might be seen by children. Children aren't allowed to buy these products, but they might be lured by the ads into trying. So any tobacco ad that might reach a youngster is somehow dishonest. Or something like that.
But the real point is to suppress communication because the government thinks it might have the wrong effects. As the state's then-Attorney General Scott Harshbarger said when he issued the regulations in 1999, "These landmark rules will be one more step toward denying Big Tobacco new customers in Massachusetts. When the 1999 school year starts, our children will no longer be bombarded with highly visible enticements that are designed to make smoking seem attractive and cool."
Ads that make smoking seem nauseating and destructive are allowed. Ads that make it seem attractive and cool are not. Only in the commercial realm would anyone even try to defend this approach, which amounts to gagging those with one point of view.
Of course, children are already bombarded with highly visible enticements for other products, many of which they are not old enough to use beer, cars, R-rated movies, mortgage loans and the like. If Massachusetts wants to shield children from all of these appeals, it had better start digging a lot of caves to house its juvenile population.
Commercial speech is certainly subject to regulation when it's false or deceptive. But if the state were merely concerned about potential fraud, why would it ban accurate price notices in the forbidden areas? Or color signs? Any promotion of tobacco products is banned, regardless of its content.
Massachusetts can insist that all tobacco ads are misleading by their very nature, just as it can pretend that the Red Sox won last year's World Series. But saying it doesn't make it so.
The state went too far, said the court in an opinion written by Justice Sandra Day O'Connor, because "tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products."
Claiming that the state's goal is to protect the little ones doesn't excuse the suppression, since the regulations "reduce the adult population to reading only what is fit for children." The state's approach was so egregious that all nine justices found it unconstitutional.
To prevent children from becoming smokers, governments have all sorts of tools at their disposal. They can ban vending machines in places open to children, outlaw possession of tobacco by minors, mandate stiff penalties for retailers that make illegal sales, and prohibit self-service displays in stores. Regulations like those curb behavior without censorship.

Steve Chapman is a nationally syndicated columnist.

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