It seems that Lockyer’s search for hobgoblins has its limits. Yes, he has assailed the hapless tobacco industry. And he engaged in some light‐hearted banter when he suggested that Enron Corp. Chairman Kenneth Lay, who has never been charged with an illegal act, is nonetheless responsible for California’s energy problems and should, therefore, be put in “an 8‑by‐10 cell” so he could be exposed to prison rape.
Yet Californians haven’t heard a peep from their attorney general on media violence, even though Sen. Joseph Lieberman (D‑Conn.) proclaimed that entertainment companies peddling adult material to children is “not a partisan issue.” Evidently, Lockyer’s professed concern for teenagers is put under wraps when his Hollywood pals denounce legislation that might impose financial penalties on moviemakers.
On the tobacco front, Lockyer complains that the multi‐state settlement agreement proscribes cigarette ads in magazines read by lots of kids. In fact, the settlement only commits the industry not to target underage smokers. That amorphous provision — in stark contrast to specific bans in the settlement on billboards and bus ads — has been interpreted differently by the several companies. Philip Morris, the market leader, with a vested interest in securing its dominance by restricting competitive advertising, has been almost eager to rein in its magazine ads. The three other tobacco giants also curtailed their ads, but not as aggressively as Philip Morris.
Still, all four companies have surpassed the standard laid down by the Federal Trade Commission, which negotiated a voluntary ban on liquor ads in magazines with more than 30 percent of its readership below the legal drinking age. The FTC, by the way, claims that, “This practice … minimizes the number of underage consumers reached by alcohol advertising without unduly interfering with the advertiser’s ability to reach a legal‐age audience.”
That doesn’t impress Lockyer. Neither do the results of a five‐year Justice Department investigation that was unable to produce a single indictment of a tobacco executive for marketing to minors, despite painstaking efforts by prosecutors and FBI agents, testimony by whistleblowers, and disgorgement of millions of new documents. None of that matters. Rather than more vigorous enforcement of California laws that foreclose the sale of cigarettes to minors, Lockyer has decided that kids will become more responsible if they don’t see magazine ads — even if they do see their state’s chief law enforcement officer flout the First Amendment in pursuit of his anti‐tobacco crusade.
Our Constitution protects Klan speech, flag burning, and gangsta rap (targeted directly at teenagers). But if R.J. Reynolds advertises Camel cigarettes in Sports Illustrated, which is read overwhelmingly by adults, the boot of Lockyer’s state government will come down hard on the company?s neck. In the commercial speech context, the Supreme Court has laid down some important principles: A 1983 opinion held that adult discourse cannot be confined to conversations you might hear in a sandbox. Government must not “reduce the adult population … to reading only what is fit for children.” And 13 years later, the Court affirmed that even “vice” products like alcoholic beverages are entitled to commercial speech protection.
That was followed, this most recent term, by Lorillard v. Reilly, in which the Court threw out Massachusetts regulations that banned tobacco billboards within 1000 feet of a school and required retail store ads to be five feet off the floor if kids under 18 were admitted. Clearly, the Supreme Court is not willing to validate regulations that sweep too broadly. Lockyer needs to read the cases.
Cigarette ads are not the problem. Like automobile ads, they are designed to encourage brand shifting. Indeed, six European countries that have prohibited tobacco ads found that teen consumption increased. Kids smoke because of peer pressure, because their parents smoke, and because they are rebelling against authority. Those are the problems that have to be addressed, without violating commercial speech rights and without preventing adults from looking at magazine advertisements.
