Philip Morris Gets Smoked by Ninth Circuit First Amendment Ruling

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The U.S. Circuit Court of Appeals for the Ninth Circuit gave tobacco giant Philip Morris the word this week: cigarette advertising is protected by the 1st Amendment, selling cigarettes isn't--no butts about it.

In Philip Morris USA, Inc. v. City and County of San Francisco (Case No. 08-17649), the appellate court upheld the constitutionality of a San Francisco ordinance that bans the sale of cigarettes in drug stores. The appeals court affirmed a ruling last December by U.S. District Court Judge Claudia Wilken (Case No.4:08-cv-04482).

In its unpublished decision, the 9th Circuit noted that San Francisco Ordinance 194-08 limits where Philip Morris may sell its cigarettes, but doesn't prevent the company from advertising the product. "Even assuming it incidentally restricts plaintiff's advertising in a way that wouldn't be permissible as a direct regulation, that's not enough" [to constitute a violation of the First Amendment], according to the opinion of the court.

The appellate court choked on Philip Morris' argument, which the judges suggested would invite a 1st Amendment claim anytime the government banned something.