Bloomberg to propose unconstitutional law to hide cigarettes (perhaps all tobacco and e-cigs) from retail store customers

[Bill Godshall]

Patrick Basham on Bloomberg's proposal
Bloomberg's unhealthy tobacco display ban | The Daily Caller

 

[Petrodus]

The people think the Constitution protects their rights;
Bloomberg sees it as an obstacle to be overcome.

 

[patkin]

And its not just him.

 

[Petrodus]

And its not just him.

Just substitute Government in place of Bloomberg

 

[Bill Godshall]

Found the entire (and lengthy) US Supreme Court ruling in Lorillard v Reilly at
LORILLARD TOBACCO CO. v. REILLY | Supreme Court | LII / Legal Information Institute

Its far more detailed than the summary I posted at the beginning of this thread. More importantly, this 2001 SCOTUS ruling almost certainly indicates that Bloomberg's proposed bill (to ban retail tobacco displays if children are allowed in stores) will be DOA if enacted and challenged in federal court (for infringing upon tobacco companies' 1st Amendment right to communicate with adult consumers).

The most pertinent ruling in the case (III-C), authored by O’Connor, and agreed with by Rehnquist, Scalia, Kennedy, Souter, and Thomas, struck down the MA ban on tobacco advertising within five feet of a retail store floor (because it failed to pass the 3rd and 4th prong tests of Central Hudson, and thus violated the 1st Amendment rights of tobacco companies).

III-C

Massachusetts has also restricted indoor, point-of-sale advertising for smokeless tobacco and cigars. Advertising cannot be “placed lower than five feet from the floor of any retail establishment which is located within a one thousand foot radius of” any school or playground. 940 Code of Mass. Regs. §§21.04(5)(b), 22.06(5)(b) (2000). The District Court invalidated these provisions, concluding that the Attorney General had not provided a sufficient basis for regulating indoor advertising. 84 F. Supp. 2d, at 192–193, 195. The Court of Appeals reversed. 218 F. 3d, at 50–51. The court explained: “We do have some misgivings about the effectiveness of a restriction that is based on the assumption that minors under five feet tall will not, or will less frequently, raise their view above eye-level, but we find that such [a] determination falls within that range of reasonableness in which the Attorney General is best suited to pass judgment.” Id ., at 51.

We conclude that the point-of-sale advertising regulations fail both the third and fourth steps of the Central Hudson analysis. A regulation cannot be sustained if it “ ‘provides only ineffective or remote support for the government’s purpose,’ ” Edenfield , 507 U. S., at 770 (quoting Central Hudson , 447 U. S., at 564), or if there is “little chance” that the restriction will advance the State’s goal, Greater New Orleans , supra , at 193 (internal quotation marks omitted). As outlined above, the State’s goal is to prevent minors from using tobacco products and to curb demand for that activity by limiting youth exposure to advertising. The 5 foot rule does not seem to advance that goal. Not all children are less than 5 feet tall, and those who are certainly have the ability to look up and take in their surroundings.
By contrast to Justice Stevens , post , at 16–17, we do not believe this regulation can be construed as a mere regulation of conduct under United States v. O’Brien, 391 U. S. 367(1968) . To qualify as a regulation of communicative action governed by the scrutiny outlined in O’Brien , the State’s regulation must be unrelated to expression. Texas v.Johnson, 491 U. S. 397, 403 (1989) . See also Erie v. Pap’s A. M., 529 U. S. 277, 289–296 (2000) (plurality opinion). Here, Massachusetts’ height restriction is an attempt to regulate directly the communicative impact of indoor advertising.

Massachusetts may wish to target tobacco advertisements and displays that entice children, much like floor-level candy displays in a convenience store, but the blanket height restriction does not constitute a reasonable fit with that goal. The Court of Appeals recognized that the efficacy of the regulation was questionable, but decided that “n any event, the burden on speech imposed by the provision is very limited.” 218 F. 3d, at 51. There is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification. We conclude that the restriction on the height of indoor advertising is invalid under Central Hudson ’s third and fourth prongs.

Since the definition of "advertising" in the MA regulation included the words, logos, pictures on tobacco packages, the SCOTUS ruling in III-C appears to be a slam dunk argument for striking down Bloomberg's proposal (if a 5 foot limit is unconstitutional, then a storewide ban is clearly unconstitutional).

The term “advertisement” is defined as:
“any oral, written, graphic, or pictorial statement or representation, made by, or on behalf of, any person who manufactures, packages, imports for sale, distributes or sells within Massachusetts [tobacco products], the purpose or effect of which is to promote the use or sale of the product. Advertisement includes, without limitation, any picture, logo, symbol, motto, selling message, graphic display, visual image, recognizable color or pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, those used for any brand of [tobacco product]. This includes, without limitation, utilitarian items and permanent or semi-permanent fixtures with such indicia of product identification such as lighting fixtures, awnings, display cases, clocks and door mats, but does not include utilitarian items with a volume of 200 cubic inches or less.” §§21.03, 22.03.

The other ruling in Lorillard v Reilly that also will strike down Bloomberg's proposal (III-B-2), authored by O’Connor, and agreed with by Rehnquist, Scalia, Kennedy, and Thomas, struck down the MA outdoor tobacco advertising ban within 1,000 feet of schools and playgrounds because it violated the 4th prong test of Central Hudson, and thus violated the 1st Amendment right of tobacco companies to communicate with their adult customers.

III–B–2

Whatever the strength of the Attorney General’s evidence to justify the outdoor advertising regulations, however, we conclude that the regulations do not satisfy the fourth step of the Central Hudson analysis. The final step of the Central Hudson analysis, the “critical inquiry in this case,” requires a reasonable fit between the means and ends of the regulatory scheme. 447 U. S., at 569. The Attorney General’s regulations do not meet this standard. The broad sweep of the regulations indicates that the Attorney General did not “carefully calculat[e] the costs and benefits associated with the burden on speech imposed” by the regulations. Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 417(1993) (internal quotation marks omitted).

The outdoor advertising regulations prohibit any smokeless tobacco or cigar advertising within 1,000 feet of schools or playgrounds. In the District Court, petitioners maintained that this prohibition would prevent advertising in 87% to 91% of Boston, Worchester, and Springfield, Massachusetts. 84 F. Supp. 2d, at 191. The 87% to 91% figure appears to include not only the effect of the regulations, but also the limitations imposed by other generally applicable zoning restrictions. See App. 161–167. The Attorney General disputed petitioners’ figures but “concede[d] that the reach of the regulations is substantial.” 218 F. 3d, at 50. Thus, the Court of Appeals concluded that the regulations prohibit advertising in a substantial portion of the major metropolitan areas of Massachusetts. Ibid .

The substantial geographical reach of the Attorney General’s outdoor advertising regulations is compounded by other factors. “Outdoor” advertising includes not only advertising located outside an establishment, but also advertising inside a store if that advertising is visible from outside the store. The regulations restrict advertisements of any size and the term advertisement also includes oral statements. 940 Code of Mass. Regs §§21.03, 22.03 (2000).

In some geographical areas, these regulations would constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers. The breadth and scope of the regulations, and the process by which the Attorney General adopted the regulations, do not demonstrate a careful calculation of the speech interests involved.

First, the Attorney General did not seem to consider the impact of the 1,000-foot restriction on commercial speech in major metropolitan areas. The Attorney General apparently selected the 1,000-foot distance based on the FDA’s decision to impose an identical 1,000-foot restriction when it attempted to regulate cigarette and smokeless tobacco advertising. See FDA Final Rule, 61 Fed. Reg. 44399; Brief for Respondents 45, and n. 23. But the FDA’s 1,000-foot regulation was not an adequate basis for the Attorney General to tailor the Massachusetts regulations. The degree to which speech is suppressed—or alternative avenues for speech remain available—under a particular regulatory scheme tends to be case specific. See, e.g ., Renton , 475 U. S., at 53–54. And a case specific analysis makes sense, for although a State or locality may have common interests and concerns about underage smoking and the effects of tobacco advertisements, the impact of a restriction on speech will undoubtedly vary from place to place. The FDA’s regulations would have had widely disparate effects nationwide. Even in Massachusetts, the effect of the Attorney General’s speech regulations will vary based on whether a locale is rural, suburban, or urban. The uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring.
In addition, the range of communications restricted seems unduly broad. For instance, it is not clear from the regulatory scheme why a ban on oral communications is necessary to further the State’s interest. Apparently that restriction means that a retailer is unable to answer inquiries about its tobacco products if that communication occurs outdoors. Similarly, a ban on all signs of any size seems ill suited to target the problem of highly visible billboards, as opposed to smaller signs. To the extent that studies have identified particular advertising and promotion practices that appeal to youth, tailoring would involve targeting those practices while permitting others. As crafted, the regulations make no distinction among practices on this basis.

The Court of Appeals recognized that the smokeless tobacco and cigar petitioners’ concern about the amount of speech restricted was “valid,” but reasoned that there was an “obvious connection to the state’s interest in protecting minors.” 218 F. 3d, at 50. Even on the premise that Massachusetts has demonstrated a connection between the outdoor advertising regulations and its substantial interest in preventing underage tobacco use, the question of tailoring remains. The Court of Appeals failed to follow through with an analysis of the countervailing First Amendment interests.

The State’s interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity. We must consider that 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. In a case involving indecent speech on the Internet we explained that “the governmental interest in protecting children from harmful materials … does not justify an unnecessarily broad suppression of speech addressed to adults.” Reno v. American Civil Liberties Union, 521 U. S. 844, 875 (1997) (citations omitted). See, e.g ., Bolger v. Youngs Drug Products Corp.,463 U. S. 60, 74 (1983) (“The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox”); Butler v. Michigan, 352 U. S. 380,383 (1957) (“The incidence of this enactment is to reduce the adult population … to reading only what is fit for children”). As the State protects children from tobacco advertisements, tobacco manufacturers and retailers and their adult consumers still have a protected interest in communication. Cf. American Civil Liberties Union, supra , at 886–889 ( O’Connor , J ., concurring in judgment in part and dissenting in part) (discussing the creation of “adult zones” on the Internet).

In some instances, Massachusetts’ outdoor advertising regulations would impose particularly onerous burdens on speech. For example, we disagree with the Court of Appeals’ conclusion that because cigar manufacturers and retailers conduct a limited amount of advertising in comparison to other tobacco products, “the relative lack of cigar advertising also means that the burden imposed on cigar advertisers is correspondingly small.” 218 F. 3d, at 49. If some retailers have relatively small advertising budgets, and use few avenues of communication, then the Attorney General’s outdoor advertising regulations potentially place a greater, not lesser, burden on those retailers’ speech. Furthermore, to the extent that cigar products and cigar advertising differ from that of other tobacco products, that difference should inform the inquiry into what speech restrictions are necessary.

In addition, a retailer in Massachusetts may have no means of communicating to passersby on the street that it sells tobacco products because alternative forms of advertisement, like newspapers, do not allow that retailer to propose an instant transaction in the way that onsite advertising does. The ban on any indoor advertising that is visible from the outside also presents problems in establishments like convenience stores, which have unique security concerns that counsel in favor of full visibility of the store from the outside. It is these sorts of considerations that the Attorney General failed to incorporate into the regulatory scheme.

We conclude that the Attorney General has failed to show that the outdoor advertising regulations for smokeless tobacco and cigars are not more extensive than necessary to advance the State’s substantial interest in preventing underage tobacco use. Justice Stevens urges that the Court remand the case for further development of the factual record. Post , at 12–14. We believe that a remand is inappropriate in this case because the State had ample opportunity to develop a record with respect to tailoring (as it had to justify its decision to regulate advertising), and additional evidence would not alter the nature of the scheme before the Court. See Greater New Orleans , 527 U. S., at 189, n. 6.

A careful calculation of the costs of a speech regulation does not mean that a State must demonstrate that there is no incursion on legitimate speech interests, but a speech regulation cannot unduly impinge on the speaker’s ability to propose a commercial transaction and the adult listener’s opportunity to obtain information about products. After reviewing the outdoor advertising regulations, we find the calculation in this case insufficient for purposes of the First Amendment.

And the nail in the coffin for Bloomberg's proposed tobacco display ban is that the Justices who dissented with the majority's decision issued the following Dissent.

In Dissent, Justice Stevens , with whom Justice Ginsburg and Justice Breyer concurred.

II

However, I share the majority’s concern as to whether the 1,000-foot rule unduly restricts the ability of cigarette manufacturers to convey lawful information to adult consumers. This, of course, is a question of line-drawing. While a ban on all communications about a given subject would be the most effective way to prevent children from exposure to such material, the state cannot by fiat reduce the level of discourse to that which is “fit for children.” Butler v. Michigan, 352 U. S. 380, 383 (1957) ; cf. Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 74 (1983) (“The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox”). On the other hand, efforts to protect children from exposure to harmful material will undoubtedly have some spillover effect on the free speech rights of adults. See, e.g ., FCC v. Pacifica Foundation,438 U. S. 726, and n. 28 (1978).

 

[patkin]

Bloomberg was a Democrat before changing parties to run for mayor as a Republican.
Not sure what that means, if anything, but I thought I'd throw it out there.

Thanks. I think I do. It makes a whole lot more sense now anyway.

 

[Petrodus]

Not on the subject of e-smoking
however, it might be related because King Bloomberg could use
the technology to find e-cigarettes & e-smokers hiding out in NYC

Stop Whining About Privacy, Bloomberg Says

“You wait, in five years, the technology is getting better, they’ll be cameras everyplace ...
whether you like it or not,” Bloomberg said.

“The argument against using automation is just this craziness that ‘Oh, it’s Big Brother,’
he continued. “Get used to it!”

Another interesting article
Mayor Bloomberg Asserts That Domestic Use Of Drones Is Inevitable

 

[dsy5]

That bozo makes me ashamed to call myself a New Yorker.... Between Bloomberg, Gov Andrew Cuomo and the taxes, I can't wait to retire and get the hell out of here.

 

[patkin]

Just don't go all the way to California... not a big difference in the two.