Lorillard Tobacco v. Reilly - Oral Argument

Argument of Jeffrey S. Sutton

Chief Justice Rehnquist: We'll hear argument now in Number 00-596, Lorillard Tobacco Company v. Thomas Reilly, and Number 00-597, Altadis, Inc. v. Thomas Reilly.

Mr. Sutton.

Mr. Sutton: Thank you, Mr. Chief Justice and may it please the Court:

The Massachusetts Attorney General's advertising ban constitutes a prohibition, based on smoking and health, imposed under State law with respect to cigarettes and other tobacco products.

For those straightforward reasons, it is preempted by Federal law and, for these and other reasons, it abridges free speech in violation of the First and Fourteenth Amendments.

As to the preemption argument, the Court of Appeals analysis is no longer being defended.

It cannot be.

This ban is emphatically a prohibition with respect to advertising.

Nor can the ban, alternatively, be defended on the ground that it is not based on smoking and health.

Of course it is based on smoking and health, as one look at Massachusetts' First Amendment argument proves, and as they ultimately concede.

Massachusetts' alternative argument is that the ban can be sustained so long as there are other permissible nonpreemptive grounds for the ban, but if...

Justice Kennedy: Well, what is it on the face of the statutory scheme, of the Massachusetts scheme that tells us that it is based on health?

Mr. Sutton: Well, we know, Your Honor, as a matter of motivation, it's based on, the phrase is based on, so it has a subjective component to it and, as the Attorney General acknowledged when he announced the regulations... look at J.A. page 251.

Justice Scalia: Well, but I...

Mr. Sutton: The reason...

Justice Kennedy: Before we get into the... on the... if I look at this on its face, what tells me that it's based on health?

Mr. Sutton: Well, the very fact, Your Honor, that the word based on, if you look at 5(b), they use the word based on, and I think what they're trying to do is read that out of the statute.

That has a motviational component to it, and so it is fully appropriate...

Justice Kennedy: Well, you want me to go to motivation again.

I want to stay with the statutory scheme.

Can you help me with that at first?

Mr. Sutton: Well, if you look at the...

Justice Kennedy: Just from an objective standpoint, why is this based on health?

Mr. Sutton: Well, the fact is, under the ban you're not allowed to have advertisements specifically with the warning label that is required under Federal law, so in that way, operationally, it's precluded.

But I just want to make sure that our position is clear.

It has both an effects and an intent component to it, the based-on-smoking-and-health language, and that's why it's banned under either theory.

Justice Kennedy: So the fact that the Surgeon General's warning cannot be advertised in conjunction with a proposal for a commercial transaction means that health is adversely affected?

Mr. Sutton: Absolutely, Your Honor, and here's the reason.

In 1969, when they were looking at whether to amend section 5(d) and how to amend it, one of the great concerns was that States or localities ultimately would respond to the FTC's warning requirement on advertising by ultimately expressing disagreement with that warning requirement.

The concern was after '69 they'd say, that's not enough, we don't like it, and so what they'd do in response is, they'd say, we're just going to ban advertising altogether, and that's exactly what California was considering in '69, New York City was considering in '69.

It was before the Congress in 1969, and that's why they banned this very type of thing.

Justice Kennedy: Other than the elimination and the unavailability of the Surgeon General's warning, are there any other objective and not subjective or motivational features that I... that show that this is based on health that I can determine from the... by looking at the regulatory scheme itself?

Mr. Sutton: Everything, Your Honor... you're saying specifically regulations themselves, and you're saying we're not going to look at why Massachusetts did that, and so just for a second we'll suspend that and assume you don't look at intent.

But even if you look at intent, at what they did in effect, it's not just that you can't get the warnings.

Obviously, it just relates to schools.

I mean, that is a health-related reason.

They were concerned about underage sales to children.

That's a health...

Chief Justice Rehnquist: Well, of course, the very fact that they applied this to tobacco advertising and no other kind of advertising suggests something peculiar about tobacco that they didn't like.

Mr. Sutton: Absolutely, Your Honor, and I mean, that alone on the face of the statute proves the very fact.

Justice Souter: Mr. Sutton what are... the response to that was... or one response to that was in the Massachusetts brief, and it said, look, in the real world, any... as the Chief Justice suggested, any advertising ban or lmitation directed to tobacco is going to be based on smoke... on the relationship between tobacco and health.

We recognize that.

They said, however, if you read the ban that broadly, if you read the preemption that broadly, rather, then the words of limitation, which are... which refer to smoking and health are going to have no limitation at all, becasue it's going to include everything, and therefore you've got to pull back or the words become meaningless.

What is your response to that?

Mr. Sutton: Well, Your Honor, that's an important point.

In 1969, the reason you had to have based-on-smoking-and-health language there is, otherwise this ban would apply to all general zoning laws.

In other words, you'd have ERISA II without the based-on-smoking-and-health language.

Justice Souter: Well, I suppose...

Mr. Sutton: The very point...

Justice Souter: I suppose if it were directed solely to tobacco, it wouldn't be confused with a... it wouldn't be thought to raise a conflict with the general zoning law, would it?

Mr. Sutton: No, but that's my point.

My point is that, without the based-on-smoking-and-health language you'd have ERISA in the sense that every State law that had any application to cigarette advertising would be covered.

That would mean the States or localities couldn't have general zoning laws regarding advertising, billboards, or store front signs.

The based-on-smoking-and-health language critically...

Justice Souter: Well, that would assume... it would assume that the State laws would be interpreted to mean that they were intended to modify zoning laws rather than intended to regulate tobacco, and I don't know that that would have been a realistic interpretation, would it?

Mr. Sutton: Maybe I'm not understanding your question, but...

Justice Scalia: You're talking about general zoning laws that preclude not just tobacco billboards but all billboards.

Mr. Sutton: Exactly.

Exactly, and I'm making the point that, without the based-on-smoking-and-health language you'd have a situation where section 5(b) conceivably, a little bit like ERISA, could cover every single general zoning law regarding all commercial, all noncommercial...

Justice Kennedy: It's a very indirect way for the Congress to accomplish that objective, it seems to me.

Mr. Sutton: Not at all, Your Honor.

If you take...

Justice Kennedy: Rather, it could have said, specifically directed to cigarettes, and that would have done it just as easily.

Mr. Sutton: Well, the based-on-smoking-and-health language, I think, does it very directly.

I mean, keep in mind, they were amending section 5(b) in 1969.

Prior to 1969 they had the language that said, statements in advertising.

In '69 they go to requirements or prohibitions with respect to advertising.

That would cover an awful lot of general laws but for the based-on-smoking-and-health language, and that's exactly...

Justice O'Connor: Well, I suppose, though, that here the State might say, what we're concerned about is underage smoking.

Do you say that the State laws that prohibit children from smoking are invalid somehow?

Mr. Sutton: No, Your Honor, and that's a critical, and again if you go back to section 5(b), you'll see why.

Conspicuously missing from 5(b) is the word sale.

It just preempts bans on advertising or promotion, but not sale, so for example... and this is in Cippolone at footnote 26...

Justice O'Connor: Well, it's not that the State has to address all aspects of the problem, but is the State not entitled to do something about promotion and advertising to the extent that it encourages underage people to smoke?

Mr. Sutton: Well, I think there would be some situaitons where State laws along those lines would not be preempted, but they're very few.

Let me give you one example.

Justice O'Connor: Well, and these laws have some of that in there.

For instance, the requirement that to sell cigarettes it has to be a person-to-person transaction.

You can't get it from a vending machine, in order to protect children.

Mr. Sutton: But that's not a law at this Court that we're arguing is preempted here, and it's not one we sought preemption on.

Justice O'Connor: Okay, so now what we have is outdoor advertising, in effect, which the State says would encourage children to smoke, so they want to restrict it.

Mr. Sutton: I understand what you're saying.

I think there is a line here that the Court is going to have to draw, and I think it goes something like this.

We know the States after '69 could still have bans on sales to minors.

That also must mean you couldn't have offers to sell, conspiracies to sell, or a direct solicitation for...

Justice O'Connor: Well, there may be limits on advertising of some kind.

That's what we're dealing with here, so I think the focus on smoking and health may be just slightly off-base here.

Mr. Sutton: But Your Honor, once you're beyond a direct solicitation for a legal sale, you're into the main core language of section 5(b), and keep in mind, Congress was not unaware of the problems you're raising, and that's why they made sure that the FTC had authority in this industry to investigate unfair and deceptive trade practices.

Justice O'Connor: But when you read the Federal statute, it does seem to be directed more toward what has to be on cigarette labels than anything else.

I mean, they didn't want a whole conflicting array of State requirements of how the package had to be labeled.

Mr. Sutton: I respectfully disagree, Your Honor, and this was the quid pro quo in 1969.

On the one hand, in the same act they said there shall be no cigarette advertisiing on radio and TV.

On the other hand, the other side of the bargain is, we're not going to let localities and States after the fact start to ban it as well, just as they were considering doing.

But I think... there are two things that get to the children's solicitation.

If it is not a direct solicitation for an illegal sale, then it is preempted, but there are two reasons the Court may not be concerned about that.

First, the FTC does have authority to investigate this very thing.

In fact, the State of Massachusetts in 1993 asked the FTC to investigate a tobacco company on just these grounds.

The FTC did, and so it shows they understood it, and the FTC knew how to operate.

Secondly...

Justice Ginsburg: But then you're saying it has to be Federal authority, the FTC, and the FDA, at the time they thought they might regulate nicotine as a drug...

Mr. Sutton: In 1996, right.

Justice Ginsburg: also had a similar ban, as I understand it.

If there's doubt on this, as to how this should be interpreted, doesn't the presumption against preemption of State control prevail, and isn't... has... it's not just the First Circuit who has said no preemption... isn't that so?

Mr. Sutton: Well, Your Honor, on this... the theory that's being advanced to this Court has been embraced by only one circuit, the Fourth, and...

Justice Ginsburg: How many circuits have held that there is no preemption of size and location regulations?

Mr. Sutton: Well, all told, four, but the three others that have done it have done it with respect to advertising, which is a theory that is no longer being defended.

The only court that has embraced the based-on-smoking-and-health theory was the fourth, and the Second Circuit dismissed that as mere sophistry, as I think they should have.

Justice Ginsburg: With respect to allowing States to regulate the location and the size, of signs.

Mr. Sutton: Exactly.

Justice Ginsburg: There are four circuits that have held that there is no preemption of that.

They may have given different reasons, but four have said that the States' authority has not been taken away from them by the Federal Government.

Mr. Sutton: And I'm just making the point that three of those circuits embraced a reasoning that is no longer being defended, which leaves the based-on-smoking-and-health theory advocated here, and I don't know how you can look honestly at their brief, the press release of the Attorney General when he announced these regulations, and say they weren't based on smoking and health.

That animated everything they did.

Justice Ginsburg: So would you like this Court, then, to send it back and say, First Circuit, consider the theories that other courts of appeals have accepted?

Mr. Sutton: Well, that is fully up to the Court.

I mean, we've been willing to argue the alternative ground that Massachusetts presented, but if the Court wishes to send it back, that's fine.

We're agnostic about that point.

But we do think either theory does not work.

And the other point I wanted to make that I think gets to your point, Justice Ginsburg, and yours, Justice O'Connor, is, keep in mind these children's solicitation hypotheticals are really hypotheticals.

I mean, all of the major tobacco manufacturers entered into an MSA, multisettlement agreement, multi-State settlement agreement, in November of 1998, that prohibits this very thing.

I mean, this is something that cannot happen after 1998 by 98 percent of the cigarette manufacturers in this country.

Justice Breyer: Can I go back to your first point?

You started off saying this is a ban, and suppose hypothetically I were to think that it's okay for the State to regulate location, but not okay for them to ban all advertising.

Then, at that point, you get to your maps.

You have a number, and you have the maps.

When I saw the number, I thought, well, this is a ban, because 90 percent of the area can't advertise.

Then I looked at the maps.

It didn't seem to me... I can't make heads or tails out of them.

I would have thought the right question is, of the area previously available for advertising, in how much of that area can you no longer advertise as a result of this, and I can't get an answer to that question from the map, and the map only covers Boston and not the suburbs.

It doesn't cover the suburbs of Worcester.

I mean, most of the population of Massachusetts, I don't know what the situation is... we now have those maps... and yet I think it's very important to your argument, on my assumption.

Mr. Sutton: Your Honor, this provides a transition to the First Amendment argument.

I mean, ultimately, you are allowed to aggregate all State conduct, so the 90-percent figure is a legitimate figure, because it is aggregating all State conduct.

Justice Breyer: I'm not saying legitimate or not, but in my own mind, I thought the relevant distinction turned on taking the area previously available for advertising.

What percentage of that area was cut off?

I take it I cannot get an answer to that question in the State of Massachusetts.

Mr. Sutton: That is not...

Justice Breyer: So I cannot get a... even a guess as to whether this is more a ban, which sounds like content, or more like location, which sounds like not content.

Mr. Sutton: Well, either way, Your Honor, I would submit it is an advertising ban.

It is a regulation with respect to advertising cigarettes and, as Justice Blackmun said in Cippolone, you cannot, after 1969, do by negative mandate what you can't do by positive mandate.

Justice Breyer: But my question is about maps...

Mr. Sutton: To the extent of the...

Justice Breyer: What... is there anything you can say that can, in the light...

Mr. Sutton: It's not in the record.

It's simply not in the record as to what the additional percentage of restriction is by the advertising ban.

Justice Breyer: So then, if I thought my question was important, then the answer would be... and I'm not saying it is, but if I came to that conclusion, I would then have to think, we should send it back to get this fact developed.

Mr. Sutton: Conceivably, Your Honor, yes.

If I could turn to the First Amendment argumemt...

Justice Souter: Just before you do, Mr. Sutton, I want to double-check on one assumption I'm making.

You referred a minute ago to a quid pro quo relatinoship between subsection (a) and subsection (b).

Mr. Sutton: But I was actually referring to 1335, which is the ban on radio and TV advertising.

Justice Souter: Okay.

Justice Breyer: Okay.

Mr. Sutton: And then section 5 of 1334(b) is what has the preemption.

Justice Souter: Is there any... I have assumed... there is no indication in the record, but I will ask you, is there any indication in the legislative record that there was in effect a legislative agreement between the tobacco companies and the people who were pushing the legislation that, in response to withdrawing tobacco company opposition to some things that the companies didn't like, there would... they would be rewarded by a preemption ban as broad as you are arguing for?

Mr. Sutton: Your Honor, the legislative history is pretty extensive in 1969.

It's clear, we know one reason for the radio and TV ban was protecting children health, and I think that's one reason why the 5(b) preemption, after section 5(b), would still apply to types of hypotheticals we've been talking about.

But your question, you know, as to whether... what were the cigarette companies getting out of the quid pro quo...

Justice Scalia: They... to put it...

Mr. Sutton: obviously...

Justice Souter: Did they make a deal to get what you say they are entitled to under (b)?

Mr. Sutton: I have no idea, but it's clear there was one thing animating the discussion.

We're not going to say there's a complete ban on radio and TV, and then after the fact every city and State in this country can then supppress the rest of the speech.

Justice Ginsburg: Mr. Sutton, with respect to that trade-off, as you've described it, I take it now you're making a transition to First Amendment.

Mr. Sutton: Trying, yes.

[Laughter]

Justice Ginsburg: If I read you correctly on your strict standard, then that ban on radio and television would flunk, would it not?

Mr. Sutton: Not necessarily at all, Your Honor, and again this is hypothetical.

The industry agreed they they were going to withdraw from that particular form of advertising before the ban went into effect.

They've not challenged it since and, in fact, this Court has already upheld the ban.

Justice Ginsburg: But on your theory of strict scrutiny of Federal restrictions, on what basis could the ban on television and radio survive, other than the embrace of the tobacco people, who say, well, we'll put up with it?

Mr. Sutton: On the view that different medium... a different medium is treated differently, and that's what the Court did in Red Lion.

The Court has followed Red Lion since and, in fact, in Virginia Board of Pharmacy, the key case in 1976 that started to recognize the constitutional protection for commercial speech, that's exactly what the Court did.

We said, we're going to... we've got here a price advertising ban.

We're not going to deal with the question of how that ban would be treated if it were on a different medium of communication.

I think the Court should do the same thing here.

The key problem with this particular law and why it gets strict scrutiny is the fact that it does suppress a substantial amount of speech directed to adults about a lawful product, and does so solely based on the message in the speech.

Chief Justice Rehnquist: What's your case authority for the proposition you just stated, Mr. Sutton?

Mr. Sutton: Well, Your Honor, I would say it is very much like Playboy Entertainment, and we would submit, Your Honor... and RV, but if indecent speech, if racist fighting words get strict scrutiny, then surely commercial speech should as well.

Justice Kennedy: Well, you don't need to argue that in order to prevail, do you?

I mean, just... you began by saying that since this prohibits all adult speech, isn't that more extensive than necessary under the Central Hudson test?

Mr. Sutton: You're exactly right, Justice Kennedy.

We do not need to have a strict scrutiny argument in order to win.

We think the Court should embrace ultimately the plurality reasoning in 44 Liquor Mart, and we think this is a good case and a good vehicle to do it, but you're right, we do not need to do that.

This law does have a more fatal flaw, particularly under prong 4 of Central Hudson.

Justice Ginsburg: Mr. Sutton, may I tell you why I at least am concerned about your saying this is like any other commodity, but it really isn't.

I mean, we're dealing with a commodity that is like no other.

This is highly addictive, and especially dangerous to children, who can get hooked at age 13, and can't get off it for the rest of their lives, so it isn't like even sticks and stones can break my bones, bad words.

Mr. Sutton: But Your Honor, even if you take that view, our theory allows legislatures to take into account the commercial aspects of speech that they're allowed to regulate.

One aspect of that speech they can regulate is deceptive advertising, or advertising that solicits an illegal sale.

Justice Ginsburg: But my question to you is, can't you make a distinction with respect to the danger of the product and, in that respect, I don't know anything else that's lawful to sell that's like cigarettes.

Mr. Sutton: Well, Your Honor, just 2 years ago in Greater New Orleans the Court said there is not a vice exception to the First Amendment, and now it's being suggested there's a vice exception to the no-vice exception rule.

I mean, this is a product that is lawful in this country.

Whenever you've got a product that's lawful for adults but not for children, you always have the problem, invariably, that speech directed to adults ultimately will get to children.

Justice Kennedy: Well, that changes the approach a little bit.

Justice Ginsburg points out that it's addictive and therefore dangerous from that standpoint.

Mr. Sutton: And Your Honor...

Justice Kennedy: And then you equate that with vice, and I think that slides away a little bit from the thrust of her concern.

Mr. Sutton: But if that was, let's say, a commercial aspect concern the legislature was entitled to regulate, they'd have to follow up with regulations that were focused on that concern.

These regulations do no such thing.

They make tobacco...

Justice Ginsburg: Well my question to you is, is it legitimate to say there is something about this commodity that's not true of... some people are compulsive gamblers, but most people aren't.

Some people are sensitive to alcohol, but most people aren't, but this is a drug that most people will be addicted to if they get hooked on it.

Mr. Sutton: Your Honor, my only point is, if you take that view, and let's say, for the sake of argument, you do, that still means you have to tailor, whether under strict or intermediate scrutiny, your regulation to that concern.

You cannot say that about this law.

It draws...

Justice O'Connor: But has the State tried to tailor it by saying we're going to prohibit it where it's near places that children congregate, schools and parks, and within a certain distance we're going to be concerned about advertising cigarettes?

Mr. Sutton: Well, Your Honor, we would say that geographically it is still too broad, but the point I'm trying to make with Justice Ginsburg, and I hope addresses your concern, is that the regulation doesn't focus on words, advertisements that are uniquely appealing to children.

It bars the mere mention of the word, tobacco, cigarettes, cigar, anywhere.

There's no...

Justice Stevens: What is the message that the advertising tries to convey?

Mr. Sutton: Brand loyalty, in the case of most of the petitioners.

Brand loyalty.

Justice Stevens: Just brand loyalty, that's all...

Mr. Sutton: Yes.

Justice Breyer: that's at issue?

Mr. Sutton: Absolutely, Your Honor.

But the... I think this issue...

Justice Souter: You were saying that the only advertising, then, that could be targeted under a properly tailored scheme is an ad which literally had a juvenile, literal juvenile appeal, you know, smart kids smoke, Wind in the Willows characters with cigarettes?

Chief Justice Rehnquist: You're not...

Unidentified Justice: [Laughter]

Mr. Sutton: Your Honor...

Justice Souter: But I mean, it can't be that... I mean, it can't be that narrow, so what is it about the content that could be better targeted to children than simply the content of cigarette advertising which gives, tries to give the message that it's a nice and sophisticated thing to smoke?

Justice Scalia: I mean, what...

Mr. Sutton: But Your Honor, that's exactly my point.

That's not what all cigarette advertising does, and that's not what a Mom and Pop tobacco store would do.

They just want to communicate to their consumers what the price is, what the brand is, whether there's a sale, what the contents of the...

Justice Souter: Well, if that were the case, then all cigarette advertising would simply have brand names, or the photographs of the cigarette packages, and it would not have people in cowboy suits or people in bars or people in beaches doing sophisticated and healthy things, and that's just not the way the advertising is...

Mr. Sutton: But Your Honor, I respectfully think you're proving my point There are different types of advertising out there, and they've banned everything, even something as basic as price...

Justice Scalia: Mr. Sutton, I understand you were prepared to acknowledge that the State could ban ads that say, smoking ain't so bad, it's worth it.

Could the State ban adults from receiving advertising of that sort?

Mr. Sutton: Not across the board, Your Honor, no, they cannot, and the key point...

Justice Scalia: So that the necessity of narrowing the ban to children who hear the terrible message would exist whether it's just brand loyalty or smoking's a good thing, right?

I assume you're entitled to say, smoking's okay.

Mr. Sutton: Absolutely, under the First Amendment you are, absolutely correct.

I'm making the point that...

Justice Souter: But you're not entitled, you say, to say smoking's a good thing within 20 feet of a school.

Mr. Sutton: You clearly could not, and Carey points the path here.

You cannot incite illegal conduct.

Justice Scalia: What is it here, 1,000...

Mr. Sutton: 1,000 feet, which ultimately is 90 percent of the three major metropolitan areas in Massachusetts.

Justice Breyer: So what is... isn't it a question of degree?

This is not a legal product in respect to children.

Mr. Sutton: That's right, Your Honor.

Justice Breyer: So you yourself concede that it's okay to ban ads from the air, from television and radio.

Mr. Sutton: Yes.

Justice Breyer: All right, and so then it's just a question of degree.

That is, to what extent are there other avenues for advertising.

Mr. Sutton: Your Honor...

Justice Breyer: I take it there are many, so I just want to get your...

Mr. Sutton: Anyone concerned about... just... anyone concerned about the radio and TV badge... ban should not be trying to sustain these laws.

I mean, we're going to have more suppression that's only going to make the radio and TV ban more suspect, so I want to make sure we're clear about that point.

The second problem I would say, here, is a tailoring problem, and it's the notion that the issues they purported to be addressing in January of 1999 were issues they claimed to the State of Massachusetts they had resolved in November of 1999... excuse me, 1998.

That is exactly what the MSA did.

What the MSA did is, it dealt with all of the major cigarette manufacturers.

It made sure that there would not be any youth targeting when it comes to advertisement.

It banned all billboards.

This is not a billboard case.

In fact, it's barely a storefront sign case, because it only applies to storefront signs that are less than 14 square foot in size.

So the very issues, in May of 1998... this is the only time they held a hearing... they thought they should address were addressed in November of 1998.

They do not...

Justice Souter: But you're not arguing that the agreement precluded this.

You're not saying that the Attorney General was breaking the agreement.

Mr. Sutton: Absolutely not.

Absolutely not.

Justice Scalia: You're not saying that he's estopped.

Mr. Sutton: He's breaking the law of the First Amendment.

You've got to show there is a reason to suppress speech before you do so.

You've got to show you've tried all conduct channels, and you've got to show that the alleged commercial aspects of the speech that you consider problematic are still problematic.

He could not say that after November of 1998.

Justice Souter: Well, I don't... I'm not... I have to say I don't think your argument is sound.

He could not say that with respect to the areas covered by the agreement.

What he is saying is that there are dangers that justify the ban, and those dangers exist outside the area covered by the agreement.

Mr. Sutton: Your Honor, that's not what the research shows.

They relied on the FDA rule.

The FDA rule was based on billboards.

That's where they got the 1,000-foot measurement, that you could see large billboards from two to three blocks away, and despite all that, and despite the fact that after November '98...

Justice Souter: Then your argument is that he doesn't have any evidence that would justify a regulation beyond the scope of the regulation in the settlement.

Mr. Sutton: Absolutely, and that's exactly what the First Amendment requires.

Justice Souter: In other words, it is not... but your argument is not that the settlement covered what he claims.

You're saying his evidence does not justify doing what he claims, in addition to the settlement.

Mr. Sutton: Absolutely.

Justice Scalia: Okay.

Mr. Sutton: Absolutely, and in fact that's what Sable Communications says at pages 129 and 130, that in that case it was the FCC that had a rule, and they'd not waited to see how the rule worked, in other words, how effective it was.

They simply passed another speech suppression measure, and this is exactly what the Court said.

You've got to see if that conduct-related measure works first and then, if it doesn't, and only if it doesn't, can you narrowly tailor an additional law that perhaps suppresses some speech, but only what is necessary.

If I could, I'd like to...

Justice Ginsburg: Who is bound, and to what extent, by this MSA?

Mr. Sutton: Excuse me, Your Honor?

Justice Ginsburg: Who is bound, and to what extent?

Mr. Sutton: 98 percent of the tobacco manufacturers and, indeed, at the cert stage Massachusetts noted in its opposition brief at pages 9 and 10 that the Court shouldn't take this case, because it only affects these petitioners.

I think that's right.

The issue...

Justice Ginsburg: These petitioners are not part of the agreement?

Mr. Sutton: They are part of the agreement.

Justice Ginsburg: So... but there are at least... everything that you've said about the agreement doesn't apply to the tobacco sellers, manufacturers who are not party to the agreement.

Mr. Sutton: And that would be 2 percent of the industry, and there's no showing in this record, and there cannot be, that there are trying to put up billboards, or that they're trying to put up alluring storefront signs that cause problems with...

Justice Ginsburg: And that goes for the smokeless tobacco and cigars as well?

Mr. Sutton: The smokeless tobacco and the cigars do not have a multi-State agreement with Massachusetts, but they were clearly add-ons when it comes to these regulations.

There's no evidence with respect to them.

Cigars, I think, in 1997 spent $50,000 total just on storefront signs and, as to smokeless tobacco in Massachusetts, it was going down the very time they were thinking about this particular issue, so they were clearly add-ons.

If I could, I'd like to reserve the rest of my time for rebuttal.

Argument of William W. Porter

Chief Justice Rehnquist: Very well, Mr. Sutton.

Mr. Porter, we'll hear from you.

Mr. Porter: Mr. Chief Justice, and may it please the Court:

The petitioners argue that Congress has expressly preempted the States from passing any law that limits the location of cigarette advertising.

If that view is correct, no State or locality may forbid cigarette advertising at the town Little League field, or cigarette billboards which overlook its elementary schools.

Justice O'Connor: What... I'm having trouble hearing you.

Do you want to speak up...

Mr. Porter: Yes, Your Honor.

Justice Kennedy: a little bit?

Justice O'Connor: Thank you.

Mr. Porter: Yes.

Nothing in the act compels the result that petitioners urge.

Instead, Congress' main purpose in the Cigarette Labeling Act was to provide a uniform national health warning for cigarette packages and cigarette advertising, and to avoid burdening cigarette manufacturers with conflicting warning requirements that might be set by the States.

Section 5(b) protects these specific interests by preempting only those State laws that dictate the health-related information in or with respect to...

Chief Justice Rehnquist: That... your proposition is by no means clear from just a reading of section 5(b).

I mean, certainly it could be read more broadly.

Mr. Porter: Your Honor, we would urge that section 5(b) should and must be construed in the context of the act as a whole.

I think Your Honor's question points out the possibility of alternative constructions, but the problem with section 5(b) is exactly that.

It's ambiguous, and its ambiguity comes from the fact that, when read in isolation, one does not know at what level of generality to apply the phrases in section 5(b).

Justice Breyer: I don't see how your... what's your... how do you want it read?

That is, I have the words in front of me, and I took you as having wanted it read as, with respect to the information contained in advertising, or the content of advertising, but maybe there's a different way to read it.

Mr. Porter: Well...

Justice Breyer: How specifically do you want us to read it?

Mr. Porter: Your Honor, the purpose of the statute, we would argue, defines or provides a specific meaning to section 5(b).

Justice Scalia: Right.

Mr. Porter: And the words, based on smoking and health, are what limit the scope of preemption to the...

Justice Breyer: You mean, this isn't based on smoking and health?

I'd find it hard to say that with a straight face.

I don't know what I'm supposed to say about that.

Of course they're doing this because they feel there's a bad relationship between smoking and health.

What's the answer to that?

Mr. Porter: The answer, Your Honor, is that the phrase, based on smoking and health in section 5(b), should obtain a more objective meaning than that, and the objective meaning comes from construing that phrase in the larger context of the act as a whole, otherwise, what we have is a situation where the phrase, based on smoking and health, really does become virtually unlimited.

It is a phrase potentially of great breadth when construed, as petitioners have, in isolation, and referring to any health concern that might arise in the motivation behind the statute or in any health-related effect of an advertise... of a State law respecting cigarette advertising.

Justice Breyer: Assume for argument's sake I agree with everything you say.

It's wonderful.

I'm faced with this language.

Now you tell me how to read it to get to the place that you want to get to.

Now, that's where I... it says you can't have a regulation based on smoking and health and I'm beginning, naively, to think, if this isn't based on smoking and health, what is, and so therefore, however I might feel about it, that's what the language says.

Now, I want you to tell me what, in your view, I would... supposed to be doing.

Mr. Porter: Two things, Your Honor.

Again, I think a close look at section 1331, the statement of purpose, indicates that what Congress was trying to achieve is to obtain control over the health-related information in cigarette advertising, and we see that with specific language in section 1331, where Congress says, we're going to provide a warning and we want to avoid nonuniform laws, advertising laws, and now I quote, with respect to any relationship between smoking and health.

Justice Scalia: Mr. Porter, I don't think that on its face it says that.

It does say the broader thing on its face, but I'm especially struck by the fact that this language amended an earlier text which did say exactly what you say this new text says.

The old text said, no statement relating to smoking and health shall be required in the advertising of any cigarettes.

They could have simply tracked that language and said, no State shall require any additional, or prohibit in the advertising of any cigarettes.

They went out of their way to change that text into this broad text.

Mr. Porter: Your Honor, I think that what is significant is what Congress didn't change in 1969.

Your Honor is correct that the 1965 preemption language preempted statements relating to smoking and health.

The phrase, relating to smoking and health, has an objective meaning in that provision.

It clearly refers to the health-related content of the statement.

The phrase, relating to smoking and health, was retained essentially unchanged in 1969.

Justice O'Connor: Yes, but as Justice Scalia has pointed out, it did amend and broaden the preemption provision at the same time that it banned all advertising in electronic media.

Now, maybe the inference from that is that it left out, Congress wanted to leave out billboard and print media advertising, let that not be covered.

Mr. Porter: Your Honor, I... the 1969 amendments clearly did expand the possible forms of regulation that could be preempted, but it still retained the focus on health-related content by virtue of the retention of the phrase, based on smoking and health.

In addition, Your Honor, the fact that Congress at the same time prohibited advertising on television and radio, I don't think provides any basis for an inference... I think it would be a great stretch to infer from that that Congress was invading the traditional authority of the States to regulate the location of advertising.

Justice Scalia: No, but it may well have been part of the legislative deal.

Look, this happened in 1969, over 30 years ago.

Public attitudes regarding cigarettes were not nearly what they are today.

It was much more controversial as to how much you're going to move against them.

I don't know what the legislative deal was, but there's always a deal going on there, give me this, I'll give you that and so forth.

The best way to tell what the fair deal was, it seems to me, is to read the text of the statute, and this is phrased as a very broad ban against the States going beyond the electronic media ban that was contained in the statute.

That's what it reads like, it seems to me, and if that was the deal, it seems to me we should enforce it.

Mr. Porter: Your Honor, I don't think we should infer a deal of that type.

At the same time, considering the environment in 1969, and this is apparent in the legislative history, Congress was concerned in general with the prevalence of tobacco advertising and what to do about a warning.

It provided, ultimately, for a warning in advertising.

It did prohibit advertising on television and radio.

But what you see in the legislative history is a great concern that the advertising dollars that were saved when TV advertising stopped would simply migrate to other places.

Well, Congress... that concern is expressed throughout.

It would be unlikely that in the face of that kind of concern, at the same time Congress would pass a preemption provision that would essentially guarantee tobacco, cigarette advertisers the right to advertise anywhere.

Justice Souter: Well, could you put it... could I ask you to put it this way.

I'm looking on page 15 of the Government's brief that sets out the text of the predecessor section, the one that Justice Scalia quoted.

It starts by saying, no statement relating to smoking and health shall be required in advertising, and so on.

You acknowledge that at least that has been broadened to the extent of saying, no statement shall be required or prohibited, I suppose.

Mr. Porter: Yes.

Justice Souter: Now, it seems to me that where you come out is to say that the new section means basically what the old one did, except that it adds prohibited to required.

What more, on your view, does the new section, does the new preemption section preempt?

Mr. Porter: Here are two examples, Your Honor...

Justice Breyer: On your reading.

Mr. Porter: Yes, on the State's reading.

The Court's holding in Cippolone illustrates that the addition of the words, require... requirements or prohibitions, allows the potential for preemption of certain common law claims.

Prior to that, when the word in the 1965 law was statements, only positive enactments could be preempted, and then on the back end of the provision...

Justice Scalia: Excuse me.

Statement doesn't refer to the governmental prohibition.

It doesn't refer to whether it's a statute or a common law case.

It says, no statement relating to smoking and health shall be required.

Mr. Porter: Yes, Your Honor.

Justice Scalia: It has nothing to do with common law versus legislation, does it?

Mr. Porter: I'm simply mentioning that in the Cippolone decision, much of the decision was devoted to determining whether the addition of the words, requirements or prohibitions in 1969, what was the effect of that, and the Court, the plurality determined that those new words provided for the possibility of preemption of common law claims.

Justice Souter: Well, you had...

Which a mere reference to statement would not do?

Justice Kennedy: That's your...

Mr. Porter: Precisely, Your Honor.

Justice Scalia: Well, but it says statement shall be required.

Why wouldn't required embrace the common law as well as... I don't see any difference.

Mr. Porter: I'm only describing...

Justice Scalia: All right.

Mr. Porter: the Cippolone holding.

Just to finish, the words at the end of the provision in the advertising were changed to, with respect to advertising.

The Vango Media case from the Second Circuit is a good example of the effect of that provision.

In Vango Media, a law was held preempted which required cigarette advertisers, every time they published four ads, to add a fifth anti-tobacco ad totally outside of any cigarette advertising, and the Court held that was with respect to advertising, but it was preempted.

Justice Souter: That wouldn't have been possible under the phrase, in the advertising?

Mr. Porter: I don't believe so, Your Honor, because the phrase, in the advertising, would have limited the scope to the four corners of a pro-tobacco advertisement.

I think that would be the natural reading of it, so beyond that...

Justice Breyer: Would it have preempted, in your view, the new one, the one we're talking about?

Supposing Massachusetts passed a law which said, every cigarette pack sold in every, or let's say every billboard ad, has to take out the word cigarette, take out the word tobacco.

You can advertise as you want.

You can't have certain words in it.

Mr. Porter: Your Honor, if the...

Justice Breyer: That doesn't say, talk about health.

The reason they don't want it is because they think cigarettes are bad for you, and they don't want people to know what they are.

Now, is that, in your view, preempted?

Mr. Porter: That's where it becomes difficult, but if there is a... if the basis for that...

Justice Breyer: The reason is the following.

We want the word cigarette and tobacco taken out, because we don't want people to buy them because it will kill them, all right.

Justice Souter: That's why they do it.

Justice Breyer: Now, what's the answer?

Mr. Porter: If it's a regulation of the health-related content...

Justice Breyer: I'm telling you what it is.

Mr. Porter: Yes.

Justice Breyer: I want to know what your answer is.

Is that preempted or not, in your view?

Mr. Porter: Yes, that would be preempted.

Justice Breyer: All right.

Mr. Porter: Yes.

Justice Breyer: If that is preempted, then suppose they say, it has to be blank, the ad, blank.

Now... because we don't want people to know what it is, we don't want them to buy it, because it's dangerous.

Now, is that preempted?

Mr. Porter: If the regulation...

Justice Breyer: I'm telling you the reg.

I've given you the reg.

Mr. Porter: Yes.

Justice Breyer: That's just what it is.

The words in this ad are to be nothing, okay.

That's... is that preempted?

Mr. Porter: If it's a regulation of the health-related content, it is preempted, and under that...

Justice Breyer: I'm asking you, is my example preempted, in your opinion?

Mr. Porter: It appears that it would be, Your Honor.

Justice Breyer: All right.

Then they're saying, and if you say no billboard at all, that's the same thing.

Mr. Porter: And that's fundamentally different, Your Honor.

Justice Breyer: Because?

Mr. Porter: Because they're... the act is not sufficient to go that last step.

What doesn't happen is... what Congress was intending to do is to require a warning, a uniform warning that the States couldn't tinker with, anywhere that advertising was otherwise permitted.

But Congress, there's no indication in the act that Congress was attempting to invade local control as had been traditionally exercised over the location of commercial advertising, and so there's a fundamental distinction between a location base, really a zoning style ad, and one where the State is invading the content...

Justice Kennedy: Well, just to make sure... I think this was Justice Breyer's hypothetical.

Can Massachusetts ban all cigarette advertising, period?

Mr. Porter: In considering...

Justice Kennedy: Massachusetts says, in the State of Massachusetts you cannot advertise cigarettes anywhere, on any billboard, or on any store sign.

Mr. Porter: If we're only considering that issue with respect to preemption, the answer is yes.

Justice Breyer: But I can't, to be honest with you...

Justice O'Connor: You think Massachusetts can do that under this language?

Mr. Porter: If the question is, could advertising be prohibited in all locations, purely under the preemption...

Justice O'Connor: Every ad in every location is banned for cigarettes in Massachusetts, that's not preempted?

Mr. Porter: A good example of that, Your Honor, is Utah in the 1920's did exactly that.

The Utah law has been in effect continuously since the 1920's.

It raised no concerns in Congress when the Cigarette Labeling Act was passed.

Chief Justice Rehnquist: There was no preemption law in the twenties either, was there?

Mr. Porter: That's correct, Your Honor, but since 1969 the Utah law has been continuously in effect.

The tobacco industry has never challenged it.

It was not raised as an issue in Congress.

In fact, Senator Frank Moss of Utah was an ardent foe of tobacco, and yet was one of the Senate managers of the Cigarette Labeling Act.

Justice Scalia: What did Utah do about radio and television advertising of cigarettes?

Mr. Porter: Utah... Utah...

Justice Scalia: Did it prohibit that, too?

Mr. Porter: Excuse me.

Utah had prohibited essentially fixed advertising...

Justice Scalia: Right.

Mr. Porter: on billboards.

Justice Scalia: So that might have been a pretty good deal for Mr. Moss, to get all this stuff off of radio and television, where it does a lot more harm to kids, and the risk being that the billboard prescription would be overturned.

I... that doesn't seem like a bad deal to me.

Mr. Porter: We would submit that it wouldn't have been, given his views on tobacco, but if I...

Justice Kennedy: Suppose in the hypothetical case, where Massachusetts bans all advertising at any location of all cigarettes, it recites, because of our concerns with health, all advertising of cigarettes is banned in the State of Massachusetts, would that be preempted?

Mr. Porter: I think it makes it more clearly... it clarifies any ambiguity that the hypothetical may have had, yes, Your Honor.

If I may, in my time, turn to the First Amendment.

These regulations meet each requirement in the Central Hudson test, and would present exactly the wrong case for the application of strict scrutiny.

As some of the questions have pointed out, tobacco advertising concerns an addictive product, and there's ample evidence that that advertising stimulates demand for the product, which is illegal for sale to children in all 50 States.

These regulations...

Justice Scalia: You can say the same thing about pornography, and we've been very picky-picky about what the Federal Government or any State can do with regard to pornography, for the very purposes that you're talking about, too, by way of keeping it away from children.

We've been very insistent that you can't keep it away from adults, although a lot of people think it's addictive and harmful.

Mr. Porter: A critical distinction, Your Honor, is that these regulations prohibit advertising that children will see unavoidably, day in and day out, as they walk to and from school.

The Playboy Entertainment case, for example, related to indecent speech.

The Court found that there was a less-restrictive alternative there, because an individual household could block the receipt of the sexually explicit transmissions.

Here, parents have no opportunity to block tobacco advertising the children will see as they walk to and from school and the park each day.

That's the critical distinction in this case, and it's the evidence...

Justice Ginsburg: Is it like the seven dirty words case in that respect, that you had to stop it for the adult at that time of day, as well as for the child, because there's no way to make it safe for the adult without...

Mr. Porter: Yes, Your Honor, it's exactly that notion, that to the extent they were time-channeling in that case, Massachusetts is channeling of a different type, but it's focused on the places that we know children will be day-in and day out, and that's why the tailoring... that's why these regulations are narrowly tailored, is... there's been no argument from the cigarette companies that children are not in the areas we've targeted.

Their only comment is to say that sometimes those arguments... those areas might overlap and aggregate to a larger space, but the point is, is that Massachusetts has focused its efforts in the right place.

Justice O'Connor: Well, as a practical matter, I guess, billboards are not at issue, because they're dealt with by the agreement, right?

Mr. Porter: Only...

Justice O'Connor: So what we're really dealing with here are the little signs on a store, for instance.

Mr. Porter: Yes, Your Honor.

Justice O'Connor: A storefront sign.

Mr. Porter: Only the signatories to the master settlement agreement are the major cigarette manufacturers.

It does not cover smokeless tobacco or cigar manufacturers, but Your Honor is correct, under that agreement, the exception... and the advertising that is still allowed is advertising at retail locations that's under 14 square feet...

Justice Stevens: But don't we have an issue here between billboards more than 500 and less than 1,000 feet from the schools?

Mr. Porter: The issue, Your Honor, is simply that in 1990 the tobacco companies voluntarily decided to stop advertising on billboards that are located within 500 feet of schools or playgrounds.

That, we would submit, is...

Justice Stevens: But that doesn't answer the question about a 750-foot billboard.

Mr. Porter: Your Honor, the process of line-drawing is one that was considered carefully, and we would submit is the State's to do... Massachusetts here adopted the number that the FDA had proposed, which translates to...

Justice Ginsburg: And is that the number in the agreement, too?

Is it 1,000 feet in the agreement?

Mr. Porter: In the master settlement agreement, all outdoor advertising is prohibited, regardless of where it's located, with the exception of advertising at retail that's 14 square feet or smaller.

That, I must point out, is a significant exception to the master settlement agreement.

The FTC report that came out just a month or two ago indicates a significant increase in cigarette advertising at retail locations since the execution of the master settlement agreement, so that the advertising dollars... it also indicates that total, aggregate advertising by the cigarette companies is at its largest level ever.

That shows two things.

That shows there are plenty of...

Argument of Barbara D. Underwood

Chief Justice Rehnquist: Thank you, Mr. Porter.

General Underwood, we'll hear from you.

Mr. Underwood: Mr. Chief Justice, and may it please the Court:

This State regulation is not preempted, because it is not based on smoking and health within the meaning of the Federal cigarette labeling and advertising law.

The regulation is based on smoking and health for purposes of that statute only if it requires or prohibits claims about smoking and health, and not just because it was motivated by some underlying concern about smoking and health based on...

Justice Breyer: Why isn't a rule that says you can't advertise at all a rule that prohibits claims based on smoking and health?

Mr. Underwood: Well, a rule that says that you can't advertise at all is a blanket rule like a rule that prohibits deception, which might also prohibit some claims about smoking and health and isn't aimed at claims on smoking and health, so I would say it's not prohibited under that understanding of the preemption statute, but one could distinguish that from this case.

I'd like to point out that based on can have different meanings in different contexts, but when one statute describes another statute as a rule based on something, as a regulation based on something, that language ordinarily refers to the operating criteria of the regulation, and not the reason why it was adopted.

For example, when Congress in one statute refers to another statute... to taxes based on revenues, or it refers to requirements imposed on vehicles based on size or weight, it is using a shorthand description of a category of statute, and it is describing the text of the... of that other statute, the criteria that that statute uses, and not the reasons it came into existence.

It is, of course...

Justice Souter: Would you explain... to make that clear to me, would you explain to me, as I asked your brother to do, what, then, on your view, the differences are between the old preemption section, assuming that, what was it, prohibition had been added to requirement, and the new preemption section?

Mr. Underwood: Yes.

Of course, the 1965 version expressly preempted laws that required statements relating to smoking and health.

The '69 amendment was designed, said the Senate report, as a clarification and not a radical reform.

That doesn't mean nothiong was changed, but it does mean that it was designed to reach various devices that were the functional equivalent of required statements, and weren't picked up by the old language.

Justice Souter: So the old law was thought to have no application to implicit statements.

Mr. Underwood: That's one...

Justice Souter: Nonverbal suggestions.

Mr. Underwood: That's one example.

By dropping the term, statements, what Congress reached was, with apologies to Justice Scalia, common law duties which the Cippolone plurality noted might be requirements, but weren't required statements, because required statements, in the '65 act, was thought to refer to specific texts that were required and it may also, as, Justice Souter, you suggested, have reached attempts to regulate claims that were made not by statement but by implication, such as by images, or other implication.

And then by adding prohibitions Congress reached State laws that would have the effect of requiring new warnings, but would do so in the form of a prohibition, say, for example, no advertising without this warning, which in effect requires a warning, but does it in the form of a prohibition, and it would also reach State laws prohibiting affirmative health claims about filters, say, or the safety of a particular cigarette.

There was for a period an incipient advertising war about the safer cigarette, and there was some concern about whether the States would choose to bar that, and the FTC at various times had thought it was desirable to promote that sort of competition or not, depending on...

Justice Scalia: General Underwood, what is your paraphrase of what this statute means, no requirement or prohibition... you don't want to say, based on smoking and health.

You want, no requirement or prohibition, what?

Mr. Underwood: No requirement or prohibition that regulates claims about smoking and health, assertions, representations.

Justice O'Connor: That regulates assertions about smoking...

Mr. Underwood: Things that are like statements...

Justice Scalia: And you think that based on smoking and health is a reasonable way to say, that regulates assertions of?

Mr. Underwood: I think that regulation based on means regulation that operates on the basis of, that tells you what the operating criteria of the regulation are.

If a regulation is based on weight, then you look to weight to find out if it applies or not, and if a regulation is based on... if a tax is based on revenue, then you look at revenue to find out whether or how it applies.

Justice Scalia: How are these regulations based on... the ones that you say are prohibited, how are they based on health?

Mr. Underwood: On smoking and health.

They prohibit making statements... they prohibit saying anything about smoking and health, and I don't think an inference can be drawn from the fact that the ban on television and radio occurred at the same time, because television and radio have traditionally been Federal concerns.

Billboards and signs have traditionally been local concerns.

There's no reason to infer any connection between them.

They've always been regulated...

Justice Stevens: But one change in the statute was that the '69 statute was just based on... just applies to State laws and the '65 statute applied to State and Federal.

Mr. Underwood: That's correct.

Justice Breyer: Yes.

Mr. Underwood: Another thing that happened is that promotions were added.

The regulation is not now only with respect to advertising, but also with respect to promotions, because give-away hats and T-shirts and keychains can also make claims about smoking and health, and because promotions in the form of endorsements or events could be subject to a State requirement that health disclaimers, that health warnings be given, and what Congress wanted to do was take the States out of the business of making judgments about and regulating on the basis of claims about smoking and health.

Justice Stevens: General Underwood, in the few minutes remaining, do you think you could give us a 1-minute explanation of your views about the First Amendment issues?

Mr. Underwood: Yes.

I think the State's interest in preventing school-age children from smoking is truly compelling, in light of all the evidence that has been recited, and that this regulation under Central Hudson serves that goal in a significant way, because the State had evidence showing that the ban to sales to children was not effective, that it was reducing retail sales to children, but not underage smoking, because presumably that suggests that the children were getting their cigarettes from people...

Justice Kennedy: If there was a prohibition as to all advertising, would that be no more extensive than necessary, in your view?

Mr. Underwood: If there was a prohibition as to all advertising, I think that would be more expensive... extensive than necessary.

Justice Kennedy: And if that were the practical effect of this regulation because of the 1,000-foot dynamic, would that change your answer?

Mr. Underwood: No, because this is just outdoor... I'm sorry.

A prohibition on all advertising is different from a prohibition on outdoor advertising.

There are still ample avenues, even if there were a prohibition on all advertising, which this is not...

Justice Souter: General Underwood...

Mr. Underwood: there would still be... yes.

Justice Scalia: What is the Government's position on a State law that prohibits adult bookstores from having a sign in the front which says, adult bookstore, or a sign that says, pornography on sale here...

Mr. Underwood: Well...

Justice Scalia: because of the concern for children?

I mean, adults are entitled to get the pornography.

Now, can an adult bookstore just... this statute, you can't even say, tobacco for sale.

Mr. Underwood: Well, actually, this statute does permit tobacco for sale.

The district court struck that tombstone requirement, that tombstone permission on what we believe to be the mistaken ground that it, itself, was preempted, but the First Circuit observed... expressed some reservations about that, and observed that in any event it would be possible to reframe that kind of tombstone permission.

Justice Scalia: Can you say, Marlboro?

Mr. Underwood: Not under the... not under Massachusetts regulations.

Justice Scalia: You can't say Marlboro, okay, so the bookstore says... you know...

Mr. Underwood: But the distinction is between advertising and merely information identifying that a product is sold here.

I did want to say that this, unlike pornography, is commercial speech, and so it is open to the... more open to the possibility that alternate avenues of communicating with adults...

Justice O'Connor: General Under...

Mr. Underwood: except for somebody who thinks there's no distinction between...

Chief Justice Rehnquist: General Underwood, just one assumption.

Let's assume that it can be demonstrated that eating regularly at fast food joints, including McDonald's, causes health problems throughout life for kids, would you give me the principle in your reasoning that would prevent the State of Massachusetts from similarly restricting advertising by McDonald's...

Mr. Underwood: Yes.

The...

Justice Scalia: that is directed exclusively to kids?

Mr. Underwood: Yes.

The principle, as I understand your hypothetical, is that... is a distinction between a wide variety of possible health dangers and a health danger of unparalleled magnitude that... for which the window of time between 14-1/2 and 18 is the critical window.

It's the average... the evidence is that the average child begins smoking at 14-1/2, and that very few people begin after 18, and that the product is addictive, so if you have a 14-1/2-year-old child, as I do, and you can get that child to 18 without...

Rebuttal of Jeffrey S. Sutton

Chief Justice Rehnquist: Thank you, General Underwood.

I think you've answered the question.

Mr. Sutton, you have 1 minute remaining.

Mr. Sutton: A few brief points.

The Solicitor General has just acknowleged that the tombstone, even though that's content-based, would not be preempted.

They now no longer have a content-location dichotomy.

They've just rewritten 5(b) to say, with respect to statements in advertising.

That's the only way to give content to 1969 under their theory, and their theory ultimately does not give content to those significant amendments.

The Little League hypothetical is just not true.

That would be a direct solicitation, an illegal sale.

It would not be preempted, would not be barred by the First Amendment.

They've ackowledged that a total ban would not be preempted.

I mean, they've just said that you could have a total ban here.

That's exactly what they were getting at in 1969.

Now, clearly they were banning not just brand-favorable messages, but all messages that are favorable to tobacco.

That's exactly what 44 Liquormart is about.

This is not seven dirty words.

Tobacco is not a four-letter word.

It is not just about one word... thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Sutton.

The case is submitted.