The state of Michigan has a rapidly rising rate of teenagers smoking cigarettes.

Question

The state of Michigan has a rapidly rising rate of teenagers smoking cigarettes. The state legislature, concerned that these teens may eventually burden the state budget with increased medical needs, passes a law forbidding tobacco companies from advertising on all billboards within 3 miles of a school. In Michigan, Cranton Tobacco Corporation sells cigarettes and other tobacco products in Michigan. Fearing a significant loss in profits under the new law. Cranton Tobacco sues to challenge the law, arguing it is an unconstitutional restriction on speech; in other words, a violation of the First Amendment.

Part a. What type of speech is at issue in this case? What test will the court apply to determine if the law is constitutional?

Part b. Apply the test from a. to the fact of this case to decide whether the law is constitutional or unconstitutional. Explain your analysis.

Explanation / Answer

Part a. In this case, the citizen’s right to free speech is at issue. The First Amendment rights are designated to protect the citizens of the US, when a government entity tries suppressing their right to free speech. In this case, the state legislature has forbidden tobacco companies from advertising on all billboards within 3 miles of a school. Since, the ordinance bans the ‘commercial speech’, therefore the first amendment rights are at issue.

The courts generally apply three tests to determine the constitutionality of law namely the rational basis, intermediate scrutiny, and strict scrutiny tests. In this case, the court will apply “strict scrutiny” test as the case involves fundamental issues of right to free speech.

Part b. Strict scrutiny test would be applied in this case. Once the court determines that strict scrutiny test will be applied, it is presumed by the court that the law is unconstitutional. In turn, the government needs to prove that the challenged law is constitutional. For this, the government needs to show that “the policy serves a substantial interest of the state, it directly advances the interest, and it is narrowly tailored to serve the interest.”

In this case, the health of teens and its impact on state budget can be viewed as a substantial interest of the state. However, applying the law does not directly advance the well-being of teenagers. In addition to it, the law is not narrowly tailored. Therefore, the law is considered to be unconstitutional.

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