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| | | | | American Constitutional Law, Volume One
Gregg Ivers, American University
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Case Problems
Chapter Three: Judicial Power
Rolling Tobacco v. Shorter
In response to a well-organized and sustained lobbying effort conducted by a coalition of anti-tobacco groups, Springfield enacted a state law banning cigarette and pipe-smoking in all state and local public accommodations (hotels, restaurants, nightclubs, malls, retail shops, sports arenas and outdoor stadiums, etc.). The law, slated to go into effect June 2001, bans the retail sale of cigarettes in any restaurant or establishment serving alcoholic beverages with a seating capacity of five or more. It also prohibits the placement of cigarette vending machines in any public accommodation. One important exception: the law does not apply to cigars. Cigar sales and smoking are still permitted in public accommodations at the discretion of the proprietor.
Representatives of the tobacco companies, along with an ad hoc citizens organization of pro-tobacco activists, argued in a letter to the Springfield Attorney General that the Nicotine Free Health Act of 2001 violated the federal Constitution. The pro-smoking activists claimed that if the government’s objective was to eliminate the alleged harmful effects of second-hand tobacco smoke, surely a law that exempted cigars advanced no rational government interest in public health. Furthermore, the tobacco companies argued that their industry is already the subject of numerous federal public health regulations. Cigarette ads must carry public health warnings; tar and nicotine content must be listed on the outside of all cigarette packages; and federal and state laws already levy a hefty tax on the retail sale of tobacco to discourage consumption. A recent public information campaign by the pro-smoking forces portrayed the Springfield law as one that stripped individuals of their "right to choose." Countless food and beverage products, from ice cream to beef to potato chips, could be considered harmful if used improperly over a long period of time. Public health disclosures are required of the makes and sellers of those products, leaving consumers to decide for themselves the risks involved in their use. Their sale and use, however, is not banned. Cigarette and pipe-smokers should be given the same freedom. Thus, the law violated the Due Process Clause of the Fourteenth Amendment.
The tobacco companies also pointed out the peculiar exemption of cigars in the legislation. Such an exemption could not withstand reasonable analysis. Therefore, it must have come about through some special political advantage unavailable to cigarette and pipe smokers. The failure of the public health act to respect the strictures of constitutional neutrality is a serious flaw, so the tobacco companies argue.
To express their outrage over the Springfield legislation, the pro-smoking forces enlist the assistance of a major advertising agency to move public opinion on the "cigar exemption" issue. They purchase outdoor billboard space to reach the widest possible audience. Just as the first ads are about to go up urging a repeal of the public health act, the Springfield legislature, at the urging of Governor Alfred Shorter, passes another law that prohibits the use of all outdoor advertising space, from billboards to newspaper boxes, to promote any tobacco product, including smokeless tobacco. The law again exempts cigars.
The new law, the Tobacco Visual Nuisance Act, further infuriates the tobacco companies and pro-smoking activists. This time, they claim that the second Springfield law violates their free speech rights. The state, they argue, has selected one viewpoint within a similar type of expression for exclusion from the public marketplace of ideas. Because Springfield’s new visual nuisance law does not cover cigars, the coalition maintains that the state cannot defend the statute as rational.
Springfield responds that the motive for passing the visual nuisance law was to discourage smoking, not free speech. Besides, commercial speech, the state attorney general argues, is different than private, personal speech. The state is fully within its power to prohibit outdoor cigarette advertising, just as it is also free to prohibit liquor and adult entertainment advertisements, which it has already done. The state argues that public health decisions are political, not judicial, matters. The courts must cede to the political process the discretion to advance a matter of public policy through legislation. All legislation involves preferences. Since neither of Springfield’s two laws intrude upon fundamental constitutional rights recognized by the Supreme Court, the tobacco activists’ complaint raises no judicial question properly found with the jurisdiction of the courts.
Their complaint rejected by the state attorney general, the tobacco companies and the ad hoc pro-smoking rights group file suit against Springfield.
Questions
- Do either of the Springfield laws raise a constitutional question that merits judicial review?
- Suppose that the tobacco companies do have a real and substantial stake in the Springfield legislation. Does that same logic extend to the pro-smoking citizens group? Does it possess the standing to sue the state over the enforcement of either of the public health or visual nuisance laws?
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