Question 5: Constitutional Law

As published in The Recorder

Question

City has adopted an ordinance banning tobacco advertising on billboards, store windows, any site within 1,000 feet of a school, and "any other location where minors under the age of 18 years traditionally gather."

The purpose of the ordinance is to discourage school-age children from smoking. The likely result of the ordinance will be to cause the removal of tobacco advertising from the vicinity of schools, day care centers, playgrounds, and amusement arcades.

The Association of Retailers (AOR) was formed to protect the economic interests of its member retailers. AOR had unsuccessfully opposed the adoption of the ordinance, arguing that it would cause hardship to store owners by depriving them of needed advertising revenue. AOR believes that the best way to discourage young people from smoking is by directly restricting access to tobacco rather than by banning all tobacco advertising.

AOR is considering filing a complaint for injunctive relief against City in federal district court claiming that the ordinance deprives its members of rights under the Free Speech Clause of the First Amendment.

What arguments could AOR reasonably make to show that it has standing, and that its First Amendment free speech claim has merit, and would it be likely to succeed? Discuss.

Answer

I. Standing of the Association of Retailers

In order for an association to file suit to redress a wrong done to its members, it must have standing. To have standing, an association must satisfy all of the following elements:

  1. At least one member of the association would have standing (injury in fact, causation, and redressability);
  2. The purpose of the association is related to the alleged injury; and
  3. There is nothing about the suit or the remedy sought which requires participation of any individual members.

Here, the Association of Retailers (AOR) is considering bringing suit on behalf of its members to obtain an injunction to block the enforcement of the tobacco billboard ban passed by the City. In order to demonstrate standing, AOR must prove that one of its members would have standing to assert this claim in their own name. To do so, that AOR member must show: injury in fact, causation, and redressability.

Standing of a Member - Injury in Fact
In cases of injunction or declaratory relief, injury in fact is satisfied if the injury is imminent to a member, even though it has not yet occurred. Here, the relief sought is injunctive relief to block the enforcement of the ban on billboards advertising tobacco near areas where children may congregate. The facts indicate only that AOR was formed to protect the interest of its member retailers. The facts do not explicitly indicate whether there are AOR members in City. Moreover, the facts are not clear as to whether AOR members in City accept billboard advertising that promotes tobacco products. Only if it can be shown that there are AOR members affected by the new City regulation will the requirement of injury in fact be met. Thus, a determination of imminent threat satisfying the injury in fact requirement of standing cannot be made without additional information.

Standing of a Member - Causation
In order to establish standing there must be a causal connection between the alleged injury and the alleged wrongful conduct traceable to the government action. Here, AOR members are under imminent threat of losing income generated from tobacco billboards because of a law recently adopted by City. Thus, the element of causation is satisfied.

Standing of a Member - Redressability
A plaintiff must show that a decision in its favor would eliminate the threatened harm. Here, an injunction issued by the court that the City ordinance is unconstitutional would eliminate the grievances of an individual member of AOR. Thus, redressability is satisfied.

Organization's Purpose Related to Suit
The second prong for organizational standing requires the purpose of the organization to be related to the suit. Here, AOR's purpose is to protect the economic interests of its members, who are retailers. AOR's suit is to determine the constitutionality of a law that allegedly affects its members because it will eliminate a revenue stream currently available to these members. AOR claims the ordinance prohibiting billboards advertising tobacco products in areas where minors congregate will cause store owners hardship because they will be deprived of advertising revenue. AOR will have to proffer proof of the potential for lost revenue, which is not clear on the face of theses facts. Thus, the second requirement of standing of an organization may be satisfied.

Individual Member Participation Not Required
Finally, the third prong for organizational standing is that individual member participation is not required in the suit. Here, AOR's suit is for injunctive relief, which does not require a fact-intensive, individual inquiry. As such, individual participation of its members is not required. Had AOR sought damages, individual participation would likely have been necessary. Thus, AOR has standing.

II. Merit of AOR's First Amendment Claim

The First Amendment protects the rights of citizens to Free Speech. This protection is applied to the states through the Due Process clause of the 14th Amendment. As such, the limitations that the First Amendment places on federal government action are also applied to the states. Speech includes written communication, including billboard advertising.

Ripeness
A court will only entertain a complaint involving a controversy that is ripe. Here, AOR members face immediate loss of their right of free speech as well as the loss of potential advertising income as a result of the ordinance passed by City. Thus, the controversy is ripe and subject to immediate challenge by AOR.

Government Action
The Constitutional provisions of the First Amendment are only applicable to State action that deprives a citizen of his/her right to free speech. Here, City passed an ordinance affecting speech (billboard advertising), which is subject to enforcement by the City. Thus, there is government action affecting First Amendment rights.

1st Amendment " Free Speech
The First Amendment protections are invoked when a government entity suppresses a citizen's right to free speech. Speech is not limited to words spoken, but is also applied to written expressions. Here, City passed an ordinance prohibiting tobacco advertising on billboards. Thus, First Amendment rights are at issue because the ordinance bans a type of speech.

Content-Based Restrictions
Speech regulations can be either content-based or content-neutral. Content-based regulations are those which target communication of a particular message. Content-neutral regulations on speech are viewed more favorably by the courts than content-based regulations, because there is no discriminatory purpose on the face of the regulation. Restrictions that are content specific are generally subject to strict scrutiny.

Here, the ordinance affecting AOR members concerns billboard advertising of tobacco products. The ordinance's restrictions are invoked based on where the speech is displayed as well as the message communicated. Because the content of the message (tobacco advertising) is at the heart of the ordinance, it will be found to be content-based. Thus, to the extent the statute is content-based and not directed at commercial speech, it must withstand strict scrutiny.

Commercial Speech
Commercial Speech is provided protection under the First Amendment, unless it is untruthful, misleading, or proposes unlawful activity. Regulation of commercial speech is permissible only where the regulation (1) serves a substantial state interest, (2) directly advances that interest; and (3) is narrowly tailored to serve that interest.

Here, the facts indicate the ordinance was passed to discourage school-aged children from smoking. The long term health and well-being of young people will likely be viewed as a substantial government interest. While the first prong of this test is easily satisfied, it is questionable whether the ordinance meets the other two parts of this test. An ordinance that bans tobacco billboards in a 1,000 mile radius of schools and prohibits tobacco advertising in store windows in areas where young people traditionally gather does not appear to directly advance the well-being of the City's youth nor is it narrowly tailored to limit the influence of advertising on this group. A 1,000 foot restriction in some areas could lead to a complete ban on truthful commercial information targeted to adults, which may be viewed by children. As such, the billboard ban would appear to extend beyond the protection intended for children. Moreover, a general restriction on tobacco advertising in store windows would not be sufficiently narrow because there isn't a close correlation between limiting advertising in store windows and the decreasing tobacco use by young people. Thus, the restriction as described is unlikely to survive scrutiny.

Vagueness
A statute that is unclear may be challenged as being void for vagueness. A statute is unconstitutionally vague when it is unclear who is covered by its scope, what conduct is prohibited, or what punishment may be imposed. To determine whether a statute is vague the courts consider whether it gives fair notice to those affected and provides against arbitrary and discriminatory enforcement. Here, the ordinance limits not only billboards within a stated distance from schools, but also "any other location where minors under the age of 18 years traditionally gather." The phrase "any other location" combined with the undefined reference to locations where minors "traditionally gather" leaves the ordinance open to interpretation the specific areas covered. As such, the ordinance may fail to give notice to those who could be subject to punishment, and it may also result in arbitrary enforcement. Thus, the ordinance is likely to be found void for vagueness.

Overbreadth
A statute that will likely abridge the rights of those other than who it was targeted to protect is considered overbroad and unconstitutional. Here, the City ordinance has the potential to limit commercial tobacco information directed to adults and not just children. The ordinance restricts billboards not only near playgrounds and schools, but also around amusement arcades as well as "any other location where minors under the age of 18 traditionally gather." The broad sweep of this language could easily encompass shopping venues areas near movie theaters and the like, which also cater to individuals over the age of 18. It could also apply to areas where young people once gathered in the past, but no longer do. Additionally, the portion of the ordinance banning store window advertising of tobacco products is likely overbroad as it doesn't specify the type of advertising affected or whether the advertising that is only visible from within the store is restricted. Restrictions on advertising utilizing cartoon images presumably intended to appeal to young audiences have withstood scrutiny, but tobacco advertising displayed at a certain height within stores has not. As such, additional information is needed to determine whether the ordinance's prohibition on adverting in stores is overbroad in and of itself. Thus, to the extent the ordinance would likely restrict commercial speech calculated to reach beyond those under the age of 18, it is likely overbroad.

Prior Restraint
A government action that prevents materials from being published, or which requires permission before publication is subject to strict scrutiny. Prior restraint may be found where the government restricts publication of a particular subject. To be lawful, a prior restraint must: (1) fit within one of a few narrowly defined exceptions to the prohibition on prior restraints; and (2) must be accomplished with procedural safeguards that reduce the danger of suppressing constitutionally protected speech. The Court has suggested that commercial speech may fall into an exception to the restriction against prior restraint. Nonetheless, courts have found that procedural safeguards should be applied to even commercial speech. Here, AOR may challenge the ordinance as a prior restraint on its members' ability to publish tobacco advertising. Thus, additional facts are required to determine what procedural safeguards, if any, are provided by the ordinance.

III. Likelihood of Success of AOR's Claim - Injunction

Because the ordinance is overbroad, vague and not narrowly tailored, it will likely be found unconstitutional. Based on the analysis provided above, AOR is likely to prevail in its challenge to the constitutionality of the City ordinance.