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Tobacco Regulation Is Expected to Face a Free-Speech Challenge

The law’s ban on outdoor advertising within 1,000 feet of schools and playgrounds would effectively outlaw legal advertising in many cities, critics of the prohibition said. And restricting stores and many forms of print advertising to black-and-white text, as the law specifies, would interfere with legitimate communication to adults, tobacco companies and advertising groups said in letters to Congress and interviews over the last week.

Opponents of the new strictures, including the Association of National Advertisers and the American Civil Liberties Union, predict that federal courts will throw out the new marketing restrictions. They say, for example, a 2001 Supreme Court decision struck down a Massachusetts rule that had imposed a similar ban on advertising within 1,000 feet of schools.

Commercial free speech is not an absolute right, legal experts say. There are clear limits, for instance, on false advertising and on promotion of illegal activity. The issue grows more complicated if the advertising is both truthful and concerns a legal activity, like smoking by adults.

The Supreme Court in 1980 said such speech can be restricted only if it would directly advance a “substantial government interest” and the regulation was “narrowly tailored” to fit the interest. In the case of the new tobacco law, Congress specifically defined the government interest as a reduction in youth smoking.

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