Today, U.S. Federal District Court Judge Douglas Woodlock issued a decision that the ordinance adopted on May 10, 2011, by the Worcester, Mass., City Council banning all outdoor tobacco advertisements and any in-store tobacco advertisements that can be seen from a public street is unconstitutional.
NATO, R.J. Reynolds Tobacco Co., Philip Morris USA Inc., and Lorillard Tobacco Co. filed a lawsuit against the City of Worcester in June of 2011 alleging that the tobacco advertising ban violated the First Amendment to the U.S. Constitution. The U.S. Supreme Court has ruled that the First Amendment's protection of free speech includes product advertising and that truthful advertising of products to adults cannot be banned or overly restricted.
In the decision issued today, Judge Woodlock held that the City of Worcester "has no legitimate interest in prohibiting non-misleading advertising to adults to prevent them from making decisions of which the City disapproves." That is, although the Worcester city council members believe that adults should not smoke, the city has no legal justification to ban advertising of legal products. Specifically, Judge Woodlock wrote that "Worcester may not prohibit tobacco advertisements in order to prevent adults from making the choice to legally purchase tobacco products."
Even though the City of Worcester claimed that the tobacco advertising ban ordinance was principally enacted to prevent minors from accessing and using tobacco products, the total ban went too far. Judge Woodlock relied on the 2001 Supreme Court decision in the case of Lorillard Tobacco Co. v. Reilly which struck down as unconstitutional a Massachusetts' state law that was less restrictive and only banned outdoor tobacco advertisements within 1,000 feet of a school or playground. The Worcester ordinance was much broader than the Massachusetts' state law because tobacco advertisements were banned anywhere outdoors in the city as well as in stores if the advertisements could be seen from a street. According to Judge Woodlock, the Worcester ban "was more extensive than necessary to serve the government's interest" of preventing minors from accessing and using tobacco products.
In order to be constitutional, a law restricting advertising needs to be narrowly tailored to achieve the government's interest. While the City of Worcester has a valid government interest in preventing minors from using tobacco, restrictions on advertising cannot overreach. In the decision, the judge found that "the governmental interest in protecting children from harmful materials … does not justify an unnecessarily broad suppression of speech addressed to adults." However, as the judge notes in the decision, "the Ordinance suggests that the [City of Worcester] did not consider how to tailor the restrictions so as not unduly to burden the plaintiffs' free speech rights and the rights of adults to truthful information about tobacco products."
The Worcester decision follows and is in line with U.S. Supreme Court decisions in cases that involve protecting product advertising from restrictions or bans. It is not known at this time whether the City of Worcester will appeal today's court ruling.
For a copy of Judge Woodlock's decision, see File Attachments below.
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