An obscure Supreme Court decision regarding plastic kitchenware may have as great an impact on free speech as the more famous flag-burning decision. But while the Court's decision in the flag-burning case expanded the right of political speech, its decision in the so-called Tupperware case narrowed the protection given to commercial speech. And now activists in Congress are preparing to take advantage of this decision with restrictions on tobacco and alcohol advertising.
Just days before it announced that flag burning is protected by the Constitution, the Court, in Todd Fox et al. v. Board of Trustees of the State University of New York, upheld a SUNY ban on commercial activity on campus. The case began when several students at the SUNY-Cortland campus invited a saleswoman to demonstrate Tupperware-like cookware in one of their dormitory rooms. Campus police somehow found out about the demonstration and arrested the woman for trespassing and soliciting without a license. The students sued the university, claiming the rule violated their rights of free speech.
By a 6-3 majority, the Court upheld the restriction, narrowing the constitutional protection of free speech. The Court had previously held that government can restrict commercial speech only if the restriction involves a substantial government interest, directly advances that interest, and is no more extensive than necessary. But in Fox, the Court ruled that the restriction need only be reasonable.
NBC News President Michael Gartner decried the decision in a Wall Street Journal op-ed. '"Least restrictive' is something that can be proved; if you assert that something is least restrictive, I am free to prove you wrong by finding a method that restricts even less. 'Reasonable' is a mush word; it's a characterization that can't be proved, a word that allows all kinds of restraints."
Others agree that the ruling has impact far beyond commercial activities on campus. "Those who thought they could use the First Amendment to fight alcohol or tobacco ad bans…are the clear losers," says constitutional scholar Bruce Fein. "This…opens the door to ad-ban proposals."
Indeed, the ruling gives momentum to the Protect Our Children from Cigarettes Act of 1989. Under the guise of safeguarding impressionable young minds, the bill would ban the use of models, scenes, logos, and color in tobacco advertising. It would also forbid ads within 500 feet of schools or in sports arenas, effectively ending tobacco sponsorship of sporting events or concerts.
ACLU Legislative Counsel Barry Lynn argues that if the bill becomes law, "it will be illegal to hold the Kool Jazz Festival; it will be unlawful to produce a baseball cap with the word WINSTON on it;…it will be unlawful for a bus with a cigarette advertisement displayed on its side to be driven near a school."
This article originally appeared in print under the headline "Speech Lessons".