lorillard tobacco et al reilly attorney general massachusetts et argued april decided june attorney general massachusetts attorney general promulgated comprehensive regulations governing advertising sale cigarettes smokeless tobacco cigars petitioners group tobacco manufacturers retailers filed suit asserting among things supremacy clause claim cigarette advertising regulations federal cigarette labeling advertising act fclaa prescribes mandatory health warnings cigarette packaging advertising similar state regulations claim regulations violate first fourteenth amendments federal constitution large measure district upheld regulations among rulings held restrictions location advertising fclaa neither regulations prohibiting outdoor advertising within feet school playground sales practices regulations restricting location distribution tobacco products violated first amendment ruled however advertising regulations requiring indoor advertising placed lower five feet floor invalid attorney general provided sufficient justification restriction first circuit affirmed district rulings cigarette advertising regulations fclaa outdoor advertising regulations sales practices regulations violate first amendment central hudson gas elec public serv reversed lower invalidation advertising regulations concluding attorney general better suited courts determine restrictions necessary held fclaa massachusetts regulations governing outdoor cigarette advertising pp fclaa provision prohibits requiring cigarette packages bear statement relating smoking health statement required requirement prohibition based smoking health imposed state law respect advertising promotion cigarettes packages labeled conformity analysis begins statute language hughes aircraft jacobson statute interpretation aided considering predecessor provision context current language adopted see medtronic lohr original provision simply prohibited statement relating smoking health advertising cigarettes packages labeled conformity act provisions without question current provision plain language much broader cipollone liggett group rather preventing statements amended provision reaches requirement prohibition imposed state law although former statute reached statements advertising current provision governs respect advertising promotion cigarettes time congress expanded provision respect enacted provision prohibiting cigarette advertising electronic media altogether pp congress state cigarette advertising regulations like attorney general upset federal legislative choices require specific warnings impose ban cigarette advertising electronic media order address concerns smoking health holding fclaa nullify massachusetts regulations first circuit concentrated whether respect advertising promotion concluding fclaa regulations content cigarette advertising also reasoned regulations form zoning traditional area state power therefore presumption applied see california div labor standards enforcement dillingham rejects notion regulations respect cigarette advertising promotion question indirect relationship massachusetts regulations cigarette advertising regulations expressly target advertising attorney general argument regulations based smoking health since involve content instead target youth exposure cigarette advertising unpersuasive bottom youth exposure concern intertwined smoking health concern also unavailing attorney general claim regulations govern location content cigarette advertising distinction squared provision language reaches requirements prohibitions imposed state law distinction advertising content location fclaa also reconciled congress restriction bans advertising electronic media elsewhere attorney general assertion complete state ban cigarette advertising congress intend preclude local control zoning finds support fclaa whose comprehensive warnings advertising restrictions provision make little sense state locality simply target ban cigarette advertising pp fclaa provision restrict localities ability enact generally applicable zoning restrictions location size advertisements apply cigarettes equal terms products see metromedia san diego regulate conduct relates sale use cigarettes prohibiting cigarette sales minors see well common inchoate offenses attach criminal conduct solicitation conspiracy attempt cf central hudson supra pp issue decided declines reach smokeless tobacco petitioners argument outdoor advertising regulations cigarettes regulations smokeless tobacco must invalidated severed cigarette provisions pp massachusetts outdoor advertising regulations relating smokeless tobacco cigars violate first amendment sales practices regulations relating three tobacco products constitutional pp central hudson test analyzing regulations commercial speech must determine whether expression protected first amendment whether asserted governmental interest substantial whether regulation directly advances governmental interest asserted whether extensive necessary serve interest fourth step central hudson requires reasonable fit legislature ends means chosen accomplish ends means narrowly tailored achieve desired objective florida bar went pp outdoor advertising regulations prohibiting smokeless tobacco cigar advertising within feet school playground violate first amendment pp regulations satisfy central hudson third step directly advancing governmental interest asserted justify detailed review record reveals attorney general provided ample documentation problem underage use smokeless tobacco cigars addition disagrees petitioners claim evidence preventing targeted advertising campaigns limiting youth exposure advertising decrease underage use products record posture summary judgment concluded attorney general decision regulate smokeless tobacco cigar advertising effort combat use tobacco products minors based mere speculation conjecture edenfield supra pp whatever strength attorney general evidence justify outdoor advertising regulations however regulations satisfy central hudson fourth step broad sweep indicates attorney general carefully calculat costs benefits associated burden speech imposed cincinnati discovery network record indicates regulations prohibit advertising substantial portion massachusetts major metropolitan areas areas constitute nearly complete ban communication truthful information substantial geographical reach compounded factors outdoor advertising includes advertising located outside establishment also advertising inside store visible outside moreover regulations restrict advertisements size term advertisement also includes oral statements uniformly broad sweep geographical limitation range communications restricted demonstrate lack tailoring governmental interest preventing underage tobacco use substantial even compelling less true sale use tobacco products adults legal activity speech regulation unduly impinge speaker ability propose commercial transaction adult listener opportunity obtain information products attorney general failed show regulations issue extensive necessary pp regulations prohibiting indoor advertising smokeless tobacco cigars lower feet floor retail establishment located within feet school playground fail third fourth steps central hudson analysis rule seem advance goals preventing minors using tobacco products curbing demand activity limiting youth exposure advertising children less feet tall look take surroundings blanket height restriction construed mere regulation communicative action since unrelated expression see texas johnson attempts regulate directly communicative impact indoor advertising moreover restriction constitute reasonable fit goal targeting tobacco advertising entices children although first circuit decided restriction burden speech limited de minimis exception speech restriction lacks sufficient tailoring justification pp assuming petitioners cognizable speech interest particular means displaying products cf cincinnati discovery network regulations requiring retailers place tobacco products behind counters requiring customers contact salesperson able handle product withstand first amendment scrutiny state demonstrated substantial interest preventing access tobacco products minors adopted appropriately narrow means advancing interest see supra unattended displays products present opportunity access without proper age verification required law state prohibits displays allow individual obtain tobacco without direct contact salesperson clear regulations leave open ample communication channels significantly impede adult access tobacco products retailers means exercising cognizable speech interest presentation products presumes vendors may place empty tobacco packaging open display display actual tobacco products long display accessible sales personnel cigars indication customer unable examine cigar prior purchase long examination takes place salesperson pp declines address cigar petitioners first amendment challenge regulation prohibiting sampling promotional giveaways cigars little cigars claim sufficiently briefed argued pp affirmed part reversed part remanded delivered opinion parts unanimous parts joined rehnquist scalia kennedy souter thomas jj part joined rehnquist stevens souter ginsburg breyer jj parts iv joined rehnquist scalia kennedy thomas jj kennedy filed opinion concurring part concurring judgment scalia joined thomas filed opinion concurring part concurring judgment souter filed opinion concurring part dissenting part stevens filed opinion concurring part concurring judgment part dissenting part ginsburg breyer joined part souter joined lorillard tobacco company et petitioners thomas reilly attorney general massachusetts et al altadis et petitioners thomas reilly attorney general massachusetts et al writs certiorari appeals first circuit june justice delivered opinion january attorney general massachusetts promulgated comprehensive regulations governing advertising sale cigarettes smokeless tobacco cigars code mass regs petitioners group cigarette smokeless tobacco cigar manufacturers retailers filed suit federal district claiming regulations violate federal law constitution large measure district determined regulations valid enforceable appeals first circuit affirmed part reversed part concluding regulations federal law violate first amendment first question presented review whether certain cigarette advertising regulations federal cigarette labeling advertising act fclaa stat amended et seq second question presented whether certain regulations governing advertising sale tobacco products violate first amendment november massachusetts along reached landmark agreement major manufacturers cigarette industry signatory settled claims companies exchange monetary payments permanent injunctive relief see app outline terms massachusetts national tobacco settlement master settlement agreement http press conference covering massachusetts decision sign agreement general scott harshbarger announced one last acts office create consumer protection regulations restrict advertising sales practices tobacco products explained regulations necessary order close holes settlement agreement stop big tobacco recruiting new customers among children massachusetts app january pursuant authority prevent unfair deceptive practices trade mass laws ch massachusetts attorney general attorney general promulgated regulations governing sale advertisement cigarettes smokeless tobacco cigars purpose cigarette smokeless tobacco regulations eliminate deception unfairness way cigarettes smokeless tobacco products marketed sold distributed massachusetts order address incidence cigarette smoking smokeless tobacco use children legal age order prevent access products underage consumers code mass regs similar purpose cigar regulations eliminate deception unfairness way cigars little cigars packaged marketed sold distributed massachusetts consumers may adequately informed health risks associated cigar smoking addictive properties false perception cigars safe alternative cigarettes incidence cigar use children legal age addressed order prevent access products underage consumers ibid regulations broader scope master settlement agreement reaching advertising sales practices members tobacco industry covered agreement regulations place variety restrictions outdoor advertising advertising retail sales transactions transactions mail promotions sampling products labels cigars cigarette smokeless tobacco regulations challenged provide retail outlet sales practices except otherwise provided shall unfair deceptive act practice person sells distributes cigarettes smokeless tobacco products retail outlet located within massachusetts engage following retail outlet sales practices using displays cigarettes smokeless tobacco products failing place cigarettes smokeless bacco products reach consumers location accessible outlet personnel advertising restrictions except provided shall unfair deceptive act practice manufacturer distributor retailer engage following practices outdoor advertising including advertising enclosed stadiums advertising within retail establishment directed toward visible outside establishment location within foot radius public playground playground area public park elementary school secondary school advertising cigarettes smokeless tobacco products portion placed lower five feet floor retail establishment located within one thousand foot radius public playground playground area public park elementary school secondary school retail establishment cigar regulations still issue provide retail sales practices except otherwise provided shall unfair deceptive act practice person sells distributes cigars little cigars directly consumers within massachusetts engage following practices sampling cigars little cigars promotional cigars little cigars retail outlet sales practices except otherwise provided shall unfair deceptive act practice person sells distributes cigars little cigars retail outlet located within massachusetts engage following retail outlet sales practices using displays cigars little cigars failing place cigars little cigars reach consumers location accessible outlet personnel advertising restrictions except provided shall unfair deceptive act practice manufacturer distributor retailer engage following practices outdoor advertising cigars little cigars including advertising enclosed stadiums advertising within retail establishment directed toward visible outside establishment location within foot radius public playground playground area public park elementary school secondary school advertising cigars little cigars portion placed lower five feet floor retail establishment located within one thousand foot radius public playground playground area public park elementary school secondary school retail establishment term advertisement defined oral written graphic pictorial statement representation made behalf person manufactures packages imports sale distributes sells within massachusetts tobacco products purpose effect promote use sale product advertisement includes without limitation picture logo symbol motto selling message graphic display visual image recognizable color pattern colors indicia product identification identical similar identifiable used brand tobacco product includes without limitation utilitarian items permanent fixtures indicia product identification lighting fixtures awnings display cases clocks door mats include utilitarian items volume cubic inches less effective date regulations february members tobacco industry sued attorney general district district massachusetts four cigarette manufacturers lorillard tobacco company brown williamson tobacco corporation reynolds tobacco company philip morris incorporated maker smokeless tobacco products smokeless tobacco company several cigar manufacturers retailers claimed many regulations violate commerce clause supremacy clause first fourteenth amendments rev stat parties sought summary judgment supp supp first ruling district considered supremacy clause claim fclaa et cigarette advertising regulations supp fclaa prescribes health warnings must appear packaging advertisements cigarettes fclaa contains provision prohibits state imposing requirement prohibition based smoking health respect advertising promotion cigarettes fclaa provision cover smokeless tobacco cigars district explained central question purposes whether regulations create predicate legal duty based smoking health reasoned read provision proscribe state advertising regulation enacted due health concerns smoking expand congress purpose beyond reasonable scope leave powerless regulate area concluded restrictions location advertising based smoking health thus fclaa district also concluded provision permitted retailers display black white tombstone sign reading tobacco products sold code mass regs fclaa separate ruling district considered claim attorney general regulations violate first amendment supp rejecting petitioners argument strict scrutiny apply applied test central hudson gas elec public serv commercial speech reasoned attorney general provided adequate basis regulating cigars smokeless tobacco well cigarettes similarities among products held outdoor advertising regulations prohibit outdoor advertising within feet school playground violate first amendment advance substantial government interest narrowly tailored suppress speech necessary concluded sales practices regulations restrict location distribution tobacco products survive scrutiny implicate significant speech interest invalidated advertising regulations require indoor advertising placed lower five feet floor finding attorney general provided sufficient justification restriction district ruling respect cigar warning requirements commerce clause appeals first circuit issued stay pending appeal app affirmed part reversed part district judgment consolidated cigar reilly respect supremacy clause appeals affirmed district ruling attorney general cigarette advertising regulations fclaa first circuit persuaded reasoning second seventh circuits concluded fclaa provision ambiguous held provision regulations content location cigarette advertising see greater new york metropolitan food council giuliani federation advertising industry representatives chicago respect first amendment appeals applied central hudson test held outdoor advertising regulations violate first amendment concluded restriction outdoor advertising within feet school playground directly advances state substantial interest preventing tobacco use minors also found outdoor advertising regulations restrict speech necessary reasoning distance chosen attorney general sort determination better suited legislative executive decisionmakers courts appeals reversed district invalidation advertising regulations concluding attorney general better suited determine restrictions necessary appeals also held sales practices regulations valid first amendment found regulations directly advance state interest preventing minors access tobacco products regulations narrowly tailored retailers variety means present packaging products allow customers examine products argument smokeless tobacco cigars different cigarettes expressed misgivings equating tobacco products ultimately decided attorney general presented sufficient evidence respect three products regulate similarly appeals decision respect cigar warning requirements commerce clause appeals stayed mandate pending disposition petition writ certiorari app cigarette manufacturers smokeless tobacco company filed petition challenging appeals decision respect outdoor advertising regulations first amendment grounds sales practices regulations first amendment grounds cigar companies filed separate petition raising first amendment challenge outdoor advertising advertising sales practices regulations granted petitions resolve conflict among courts appeals respect whether fclaa cigarette advertising regulations like issue cf lindsey county health decide important first amendment issues presented cases ii reaching first amendment issues must decide extent federal law attorney general regulations cigarette petitioners contend fclaa et attorney general cigarette advertising regulations article vi constitution commands laws shall law land thing constitution laws state contrary notwithstanding art vi cl see also mcculloch maryland wheat essence supremacy remove obstacles action within sphere modify every power vested subordinate governments relatively clear simple mandate generated considerable discussion cases discern whether congress state action particular area state action may foreclosed express language congressional enactment see cipollone liggett group implication depth breadth congressional scheme occupies legislative field see fidelity fed sav loan assn de la cuesta implication conflict congressional enactment see geier american honda motor fclaa congress crafted comprehensive federal scheme governing advertising promotion cigarettes fclaa provision provides additional statements statement relating smoking health statement required section title shall required cigarette package state regulations requirement prohibition based smoking health shall imposed state law respect advertising promotion cigarettes packages labeled conformity provisions chapter fclaa provision cover smokeless tobacco cigars case task identify domain expressly see cipollone supra express definition reach statute supports reasonable inference congress intend matters freightliner myrick congressional purpose ultimate touchstone inquiry cipollone supra internal quotation marks omitted federal law said bar state action fiel traditional state regulation namely advertising see packer utah wor assumption historic police powers superseded federal act unless clear manifest purpose congress california div labor standards enforcement dillingham internal quotation marks omitted see also medtronic lohr analysis begins language statute hughes aircraft jacobson provision congress unequivocally precludes requirement additional statements cigarette packages beyond provided congress precludes localities imposing requirement prohibition based smoking health respect advertising promotion cigarettes without question second clause expansive first employs far sweeping language describe state action must give meaning element provision aided interpretation considering predecessor provision circumstances current language adopted see medtronic supra mccarthy bronson mart cartier groundbreaking report surgeon general advisory committee smoking health concluded igarette smoking health hazard sufficient importance warrant appropriate remedial action department health education welfare surgeon general advisory committee smoking health congress enacted fclaa proactive measure face impending regulation federal agencies pub stat see also cipollone supra purpose fclaa twofold inform public adequately hazards cigarette smoking protect national economy interference due diverse nonuniform confusing cigarette labeling advertising regulations respect relationship smoking health pub fclaa prescribed label cigarette packages caution cigarette smoking may hazardous health fclaa also required secretary health education welfare hew federal trade commission ftc report annually congress health consequences smoking advertising promotion cigarettes section fclaa included provision congress spoke precisely narrowly cipollone supra subsection prohibited requirement additional statements cigarette packaging subsection provided statement relating smoking health shall required advertising cigarettes packages labeled conformity provisions act section fclaa set termination date july provisions previously explained face provisions merely prohibited state federal rulemaking bodies mandating particular cautionary statements cigarette labels subsection cigarette advertisements subsection cipollone fclaa enacted expectation congress reexamine light developing information cigarette smoking health cong rec intervening years congress received reports recommendations hew secretary ftc pp hew secretary recommended congress strengthen warning require warning packages advertisements publish tar nicotine levels packages advertisements ftc made similar additional recommendations ftc sought complete ban radio television advertising requirement broadcasters devote time health hazard announcements concerning smoking increased funding public education research smoking ftc urged congress continue prevent federal agencies regulating cigarette advertising addition federal communications commission fcc concluded advertising promoted use cigarettes created duty broadcast stations provide information hazards cigarette smoking house senate committees held hearings health effects cigarette smoking advertising cigarette industry bill emerged house representatives strengthened warning maintained provision senate amended bill adding ban radio television advertising changing language present form conf pp final result public health cigarette smoking act congress following senate amendments made three significant changes fclaa pub stat first congress drafted new label read warning surgeon general determined cigarette smoking dangerous health fclaa second congress declared unlawful advertise cigarettes medium electronic communication subject jurisdiction fcc finally congress enacted current provision proscribes requirement prohibition based smoking health imposed state law respect advertising promotion cigarettes new subsection regulation federal agencies freeing ftc impose warning requirements cigarette advertising see cipollone supra new provision like predecessor applied cigarettes tobacco products congress amended fclaa comprehensive smoking education act pub stat purpose act provide new strategy making americans aware adverse health effects smoking assure timely widespread dissemination research findings enable individuals make informed decisions smoking act established series warnings appear rotating basis cigarette packages cigarette advertising directed health human services secretary create implement educational program health effects cigarette smoking ftc continued report trade practices cigarette industry first year since master settlement agreement ftc reported cigarette industry expended billion advertising promotions largest expenditure ever ftc cigarette report substantial increases found promotions payments made retailers facilitate sales retail offers buy one get one free product giveaways substantial decreases however reported outdoor advertising transit advertising congress federal agencies continue monitor advertising promotion practices cigarette industry scope meaning current provision become clearer consider original language amendments fclaa without question plain language provision act much broader cipollone rather preventing statements amended provision reaches requirement prohibition imposed state law although former statute reached statements advertising current provision governs respect advertising promotion cigarettes see ibid congress expanded provision respect time allowed ftc regulate cigarette advertising congress also prohibited cigarette advertising electronic media altogether viewed light context current provision adopted must determine whether fclaa massachusetts tions governing outdoor advertising cigarettes appeals acknowledged fclaa requirement prohibition based smoking health respect advertising promotion cigarettes concluded fclaa nullify massachusetts cigarette advertising regulations concentrated analysis whether regulations respect advertising promotion relying two sister circuits conclude fclaa regulations content cigarette advertising appeals also reasoned attorney general regulations form zoning traditional area state power therefore presumption applied cigarette petitioners maintain appeals respect analysis inconsistent fclaa statutory text legislative history gives license prohibit almost cigarette advertising petitioners also maintain basis construing provision prohibit advertising regulations although support appeals result attorney general amicus curiae fully endorse textual analysis provision instead assert cigarette advertising regulations based smoking health attorney general also contend regulations prescribe content cigarette advertising fall squarely within state traditional powers control location advertising protect welfare children turning first language provision relied upon appeals reject notion attorney general cigarette advertising regulations respect advertising promotion disagree appeals analogy employee retirement income security act erisa cases concerning erisa state law decide whether particular state law relates employee benefit plan covered erisa even though state law makes express reference plan see california div labor standards enforcement dillingham however question indirect relationship regulations cigarette advertising regulations expressly target cigarette advertising code mass regs attorney general focuses different phrase provision based smoking health attorney general argues cigarette advertising regulations based smoking health involve content cigarette advertising instead target youth exposure cigarette advertising sure members debated precise meaning based smoking health see cipollone supra plurality opinion agree attorney general narrow construction phrase congress enacted current provision congress concern solely health warnings cigarettes amendments congress enhanced scheme warn public hazards cigarette smoking also sought protect public including youth inundated images cigarette smoking advertising pursuit latter goal congress banned electronic media advertising cigarettes extent congress contemplated additional targeted regulation cigarette advertising vested authority ftc context congress crafted current provision leads us conclude congress prohibited state cigarette advertising regulations motivated concerns smoking health massachusetts attempted address incidence underage cigarette smoking regulating advertising see code mass regs much like congress ban cigarette advertising electronic media bottom concern youth exposure cigarette advertising intertwined concern cigarette smoking health thus attorney general attempt distinguish one concern must rejected attorney general next claims state outdoor advertising regulations cigarettes govern location content advertising also justice stevens main point respect post opinion concurring part dissenting part content versus location distinction surface appeal provision immediately follows section fclaa prescribes warnings see provision refers cigarettes labeled conformity statute distinction squared language provision reaches requirements prohibitions imposed state law distinction content advertising location advertising fclaa also reconciled congress restriction bans advertising electronic media elsewhere see liberty pick choose provisions legislative scheme consider see post opinion stevens must examine fclaa whole moreover distinction content location cigarette advertising collapses implications approach fully considered oral argument attorney general pressed explain types state regulations cigarette advertising view fclaa attorney general maintained state law required cigarette retailers remove word tobacco advertisements required cigarette billboards blank regulation content tr oral arg attorney general also maintained however complete ban cigarette advertising congress intend invade local control zoning latter position clearly follows factual distinction content location finds support text fclaa provision believe congress wished ensure state negative mandate banning cigarette advertising already forbidden positive mandate mandating particular cautionary statements cipollone blackmun joined kennedy souter concurring part dissenting part see also vango media new york holding regulation required one public health message every four cigarette advertisements justice stevens post maintains congress intend displace state regulation location cigarette advertising critical distinction however generally applicable zoning regulations see infra regulations targeting cigarette advertising latter type regulation inevitably motivated concerns smoking health squarely contradicts fclaa fclaa comprehensive warnings advertising restrictions provision make little sense state locality simply target ban cigarette advertising justice stevens finds ironic conclude federal law precludes localities protecting children dangerous products within feet school light prior conclusion federal government lacks constitutional authority impose ban lopez post holding broad dissent hold fclaa state regulations targeting cigarette advertising remain free enact generally applicable zoning regulations regulate conduct respect cigarette use sales infra reference lopez also inapposite lopez held congress exceeded limits commerce clause power school zones act made federal crime possess firearm school zone case contrast concerns supremacy clause doctrine applied case congress expressly precluded certain state regulations cigarette advertising massachusetts raise constitutional challenge fclaa confronted whether congress exceeded constitutionally delegated authority enacting fclaa sum fail see fclaa provision permit distinction specific concern minors cigarette advertising general concern smoking health cigarette advertising especially light fact congress crafted legislative solution concerns also conclude distinction state regulation location opposed content cigarette advertising foundation text provision congress state cigarette advertising regulations like attorney general upset federal legislative choices require specific warnings impose ban cigarette advertising electronic media order address concerns smoking health accordingly hold attorney general outdoor advertising regulations targeting cigarettes fclaa although fclaa prevents localities imposing special requirements prohibitions based smoking health respect advertising promotion cigarettes language still leaves significant power hands impose generally applicable zoning regulations regulate conduct noted cipollone phrase within provision limits universe state action statute plurality opinion instance fclaa restrict state locality ability enact generally applicable zoning restrictions recognized state interests traffic safety esthetics may justify zoning regulations advertising see metromedia san diego see also louis poster advertising louis thomas cusack chicago although congress taken account unique concerns cigarette smoking health advertising indication congress intended displace local community interests general regulations location billboards large marquee advertising congress intended cigarette advertisers afforded special treatment regard restrictions location size advertisements apply cigarettes equal terms products appear outside ambit provision restrictions based smoking health fclaa also foreclose state regulation conduct relates sale use cigarettes fclaa provision explicitly governs state regulations advertising promotion accordingly fclaa state laws prohibiting cigarette sales minors contrary established congressional policy supports laws congress required prohibit tobacco sales minors condition receiving federal block grant funding substance abuse treatment activities stat massachusetts illegal sell distribute tobacco products persons age mass laws ch prohibited sale distribution tobacco products minors state may prohibit common inchoate offenses attach criminal conduct solicitation conspiracy attempt cf central hudson gas elec public serv new york carey population servs virginia bd pharmacy virginia citizens consumer council fed reg citing evidence industry may attempting induce individuals smoke cigarettes localities also disposal means regulating conduct ensure minors obtain cigarettes see part infra smokeless tobacco petitioners argue state outdoor advertising regulations cigarettes advertising regulations respect smokeless tobacco must invalidated severed cigarette provisions brief petitioner smokeless tobacco nos district reach severability issue respect advertising provisions supp appeals also reach severability likewise concluded cigarette advertising regulations decline reach issue decided national collegiate athletic assn smith iii terms fclaa provision applies cigarettes accordingly must evaluate smokeless tobacco cigar petitioners first amendment challenges state outdoor advertising regulations cigarette petitioners raise challenge sales practices regulations thus must analyze cigarette well smokeless tobacco cigar petitioners claim certain sales practices regulations tobacco products violate first amendment years recognized commercial speech fall outside purview first amendment see virginia bd pharmacy supra instead afforded commercial speech measure first amendment protection position relation constitutionally guaranteed expression see florida bar went quoting board trustees state univ fox recognition distinction speech proposing commercial transaction occurs area traditionally subject government regulation varieties speech central hudson supra internal quotation marks omitted developed framework analyzing regulations commercial speech substantially similar test time place manner restrictions board trustees state univ fox supra analysis contains four elements outset must determine whether expression protected first amendment commercial speech come within provision least must concern lawful activity misleading next ask whether asserted governmental interest substantial inquiries yield positive answers must determine whether regulation directly advances governmental interest asserted whether extensive necessary serve interest central hudson supra petitioners urge us reject central hudson analysis apply strict scrutiny first litigants see greater new orleans broadcasting admittedly several members expressed doubts central hudson analysis whether apply particular cases see greater new orleans supra thomas concurring judgment liquormart rhode island joint opinion stevens kennedy ginsburg jj scalia concurring part concurring judgment thomas concurring part concurring judgment greater new orleans see need break new ground central hudson applied recent commercial speech cases provides adequate basis decision last two steps central hudson analysis issue attorney general assumed purposes summary judgment petitioners speech entitled first amendment protection supp respect second step none petitioners contests importance state interest preventing use tobacco products minors brief petitioners lorillard tobacco et al brief petitioner smokeless tobacco nos brief petitioners altadis et al third step central hudson concerns relationship harm underlies state interest means identified state advance interest requires speech restriction directly materially advanc asserted governmental interest burden satisfied mere speculation conjecture rather governmental body seeking sustain restriction commercial speech must demonstrate harms recites real restriction fact alleviate material degree greater new orleans supra quoting edenfield fane however require empirical data come accompanied surfeit background information permitted litigants justify speech restrictions reference studies anecdotes pertaining different locales altogether even case applying strict scrutiny justify restrictions based solely history consensus simple common sense florida bar went citations internal quotation marks omitted last step central hudson analysis complements third step asking whether speech restriction extensive necessary serve interests support greater new orleans supra made clear least restrictive means standard instead case law requires reasonable fit legislature ends means chosen accomplish ends means narrowly tailored achieve desired objective went supra quoting board trustees state univ fox focusing third fourth steps central hudson analysis first address outdoor advertising advertising regulations smokeless tobacco cigars address sales practices regulations tobacco products outdoor advertising regulations prohibit smokeless tobacco cigar advertising within radius school playground code mass regs district appeals concluded attorney general identified real problem underage use tobacco products limiting youth exposure advertising combat problem regulations burdened speech necessary accomplish state goal supp smokeless tobacco cigar petitioners take issue conclusions smokeless tobacco cigar petitioners contend attorney general regulations satisfy central hudson third step maintain although attorney general may identified problem underage cigarette smoking identified equally severe problem respect underage use smokeless tobacco cigars smokeless tobacco petitioner emphasizes lack parity cigarettes smokeless tobacco brief petitioner smokeless tobacco nos reply brief petitioner smokeless tobacco nos pp cigar petitioners catalogue list differences cigars tobacco products including characteristics products marketing strategies brief petitioners altadis et al petitioners finally contend attorney general prove advertising causal link tobacco use limiting advertising materially alleviate problem underage use products brief petitioner smokeless tobacco nos brief petitioners altadis et al previous cases acknowledged theory product advertising stimulates demand products suppressed advertising may opposite effect see rubin central hudson attorney general cites numerous studies support theory case tobacco products attorney general relies part evidence gathered food drug administration fda attempt regulate advertising cigarettes smokeless tobacco see regulations restricting sale distribution cigarettes smokeless tobacco products protect children adolescents fda proposed rule fed reg regulations restricting sale distribution cigarettes smokeless tobacco protect children adolescents fda final rule fed reg fda promulgated advertising regulations finding period prior adulthood overwhelming majority americans first decide use tobacco products advertising plays crucial role decision fda final rule fed later held fda lacks statutory authority regulate tobacco products see fda brown williamson tobacco nevertheless attorney general relies fda proceedings studies support decision advertising affects demand tobacco products cf erie pap plurality opinion cities localities may rely evidence jurisdictions demonstrate harmful secondary effects adult entertainment justify regulation barnes glen theatre souter concurring judgment renton playtime theatres see also nixon shrink missouri government pac discussing evidence corruption appearance corruption campaign finance rulemaking proceeding fda considered several studies tobacco advertising trends use various tobacco products surgeon general report institute medicine report found sufficient evidence conclude advertising labeling play significant important contributory role young person decision use cigarettes smokeless tobacco products fed reg see also pierce et tobacco industry promotion cigarettes adolescent smoking jama instance children smoke fewer brands cigarettes adults choices directly track heavily advertised brands unlike adult choices dispersed related pricing fda proposed rule fed reg another study revealed year olds children ages recognized joe camel cartoon anthropomorphic symbol reynolds camel brand cigarettes introduction joe camel camel cigarettes share youth market rose fda also identified trends tobacco consumption among certain populations young women correlated introduction marketing products geared toward population fda also made specific findings respect smokeless tobacco fda concluded recent large increase use smokeless tobacco products young people addictive nature products persuaded agency products must included regulatory approach designed help prevent future generations young people becoming addicted tobacco products studies analyzed smokeless tobacco use young people discussing trends based gender school grade locale see boyd et use smokeless tobacco among children adolescents preventative medicine record doc exh researchers tracked dramatic shift patterns smokeless tobacco use older younger users past years see fda proposed rule fed tomar et smokeless tobacco brand preference brand switching among us adolescents young adults tobacco control record doc exh department health human services preventing tobacco use among young people report surgeon general record doc exh particular smokeless tobacco industry boosted sales tenfold targeting young males fda proposed rule fed see also national cancer institute cigars health effects trends smoking tobacco control monograph record doc exh another study documented targeting youth smokeless tobacco sales advertising techniques ernster advertising promotion smokeless tobacco products national cancer institute monograph pp record doc exh attorney general presents different evidence respect cigars data underage cigar use prior behavior considered uncommon enough worthy examination smoking tobacco control monograph ftc report congress cigar sales advertising promotional expenses calendar years record doc exh fda decided include cigars attempted regulation tobacco product advertising explaining agency currently sufficient evidence products drug delivery devices fda focused investigation authority tobacco products cigarettes smokeless tobacco products pipe tobacco cigars young people predominantly use cigarettes smokeless tobacco products fed reg recently however data youth cigar use emerged national cancer institute concluded monograph rate cigar use minors increasing cigar use rates higher smokeless tobacco use rates minors smoking tobacco control monograph report congress ftc concluded substantial numbers adolescents trying cigars ftc report congress see also department health human services office inspector general youth use cigars patterns use perceptions risk record doc exh studies also demonstrated link advertising demand cigars congress recognized power images advertising banned cigarette advertising electronic media television advertising small cigars increased dramatically filled void left cigarette advertisers sales soared smoking tobacco control monograph congress extended electronic media advertising ban cigarettes little cigars little cigar act pub stat amended cigar advertising campaigns triggered boost sales smoking tobacco control monograph review record reveals attorney general provided ample documentation problem underage use smokeless tobacco cigars addition disagree petitioners claim evidence preventing targeted campaigns limiting youth exposure advertising decrease underage use smokeless tobacco cigars record posture summary judgment unable conclude attorney general decision regulate advertising smokeless tobacco cigars effort combat use tobacco products minors based mere speculation conjecture edenfield fane whatever strength attorney general evidence justify outdoor advertising regulations however conclude regulations satisfy fourth step central hudson analysis final step central hudson analysis critical inquiry case requires reasonable fit means ends regulatory scheme internal quotation marks omitted outdoor advertising regulations prohibit smokeless tobacco cigar advertising within feet schools playgrounds district petitioners maintained prohibition prevent advertising boston worchester springfield massachusetts supp figure appears include effect regulations also limitations imposed generally applicable zoning restrictions see app attorney general disputed petitioners figures concede reach regulations substantial thus appeals concluded regulations prohibit advertising substantial portion major metropolitan areas massachusetts ibid substantial geographical reach attorney general outdoor advertising regulations compounded factors outdoor advertising includes advertising located outside establishment also advertising inside store advertising visible outside store regulations restrict advertisements size term advertisement also includes oral statements code mass regs geographical areas regulations constitute nearly complete ban communication truthful information smokeless tobacco cigars adult consumers breadth scope regulations process attorney general adopted regulations demonstrate careful calculation speech interests involved first attorney general seem consider impact restriction commercial speech major metropolitan areas attorney general apparently selected distance based fda decision impose identical restriction attempted regulate cigarette smokeless tobacco advertising see fda final rule fed reg brief respondents fda regulation adequate basis attorney general tailor massachusetts regulations degree speech suppressed alternative avenues speech remain available particular regulatory scheme tends case specific see renton case specific analysis makes sense although state locality may common interests concerns underage smoking effects tobacco advertisements impact restriction speech undoubtedly vary place place fda regulations widely disparate effects nationwide even massachusetts effect attorney general speech regulations vary based whether locale rural suburban urban uniformly broad sweep geographical limitation demonstrates lack tailoring addition range communications restricted seems unduly broad instance clear regulatory scheme ban oral communications necessary state interest apparently restriction means retailer unable answer inquiries tobacco products communication occurs outdoors similarly ban signs size seems ill suited target problem highly visible billboards opposed smaller signs extent studies identified particular advertising promotion practices appeal youth tailoring involve targeting practices permitting others crafted regulations make distinction among practices basis appeals recognized smokeless tobacco cigar petitioners concern amount speech restricted valid reasoned obvious connection state interest protecting minors even premise massachusetts demonstrated connection outdoor advertising regulations substantial interest preventing underage tobacco use question tailoring remains appeals failed follow analysis countervailing first amendment interests state interest preventing underage tobacco use substantial even compelling less true sale use tobacco products adults legal activity must consider tobacco retailers manufacturers interest conveying truthful information products adults adults corresponding interest receiving truthful information tobacco products case involving indecent speech internet explained governmental interest protecting children harmful materials justify unnecessarily broad suppression speech addressed adults reno american civil liberties union citations omitted see bolger youngs drug products level discourse reaching mailbox simply limited suitable sandbox butler michigan incidence enactment reduce adult population reading fit children state protects children tobacco advertisements tobacco manufacturers retailers adult consumers still protected interest communication cf american civil liberties union supra concurring judgment part dissenting part discussing creation adult zones internet instances massachusetts outdoor advertising regulations impose particularly onerous burdens speech example disagree appeals conclusion cigar manufacturers retailers conduct limited amount advertising comparison tobacco products relative lack cigar advertising also means burden imposed cigar advertisers correspondingly small retailers relatively small advertising budgets use avenues communication attorney general outdoor advertising regulations potentially place greater lesser burden retailers speech furthermore extent cigar products cigar advertising differ tobacco products difference inform inquiry speech restrictions necessary addition retailer massachusetts may means communicating passersby street sells tobacco products alternative forms advertisement like newspapers allow retailer propose instant transaction way onsite advertising ban indoor advertising visible outside also presents problems establishments like convenience stores unique security concerns counsel favor full visibility store outside sorts considerations attorney general failed incorporate regulatory scheme conclude attorney general failed show outdoor advertising regulations smokeless tobacco cigars extensive necessary advance state substantial interest preventing underage tobacco use justice stevens urges remand case development factual record post believe remand inappropriate case state ample opportunity develop record respect tailoring justify decision regulate advertising additional evidence alter nature scheme see greater new orleans careful calculation costs speech regulation mean state must demonstrate incursion legitimate speech interests speech regulation unduly impinge speaker ability propose commercial transaction adult listener opportunity obtain information products reviewing outdoor advertising regulations find calculation case insufficient purposes first amendment massachusetts also restricted indoor advertising smokeless tobacco cigars advertising placed lower five feet floor retail establishment located within one thousand foot radius school playground code mass regs district invalidated provisions concluding attorney general provided sufficient basis regulating indoor advertising supp appeals reversed explained misgivings effectiveness restriction based assumption minors five feet tall less frequently raise view find determination falls within range reasonableness attorney general best suited pass judgment conclude advertising regulations fail third fourth steps central hudson analysis regulation sustained provides ineffective remote support government purpose edenfield quoting central hudson little chance restriction advance state goal greater new orleans supra internal quotation marks omitted outlined state goal prevent minors using tobacco products curb demand activity limiting youth exposure advertising foot rule seem advance goal children less feet tall certainly ability look take surroundings contrast justice stevens post believe regulation construed mere regulation conduct qualify regulation communicative action governed scrutiny outlined state regulation must unrelated expression texas johnson see also erie pap plurality opinion massachusetts height restriction attempt regulate directly communicative impact indoor advertising massachusetts may wish target tobacco advertisements displays entice children much like candy displays convenience store blanket height restriction constitute reasonable fit goal appeals recognized efficacy regulation questionable decided event burden speech imposed provision limited de minimis exception speech restriction lacks sufficient tailoring justification conclude restriction height indoor advertising invalid central hudson third fourth prongs attorney general also promulgated number regulations restrict sales practices cigarette smokeless tobacco cigar manufacturers retailers among restrictions regulations bar use displays require tobacco products placed reach consumers location accessible salespersons code mass regs cigarette petitioners challenge sales practices regulations grounds brief petitioners lorillard tobacco et al two cigarette petitioners brown williamson tobacco corporation lorillard tobacco company petitioner smokeless tobacco company cigar petitioners challenge sales practices regulations first amendment grounds cigar petitioners additionally challenge provision prohibits sampling promotional giveaways cigars little cigars code mass regs district concluded restrictions implicate cognizable speech interest supp appeals fully adopt reasoning appeals recognized displays often communicative commercial function noted restriction regulations speech rather physical location actual tobacco products reasoned nothing regulations prevent display empty tobacco product containers long actual tobacco product displayed much like movie jackets video store ibid respect cigar products observed retailers traditionally allow access products consumer may make selection basis number objective subjective factors including aroma feel cigars ibid even assuming speech interest however concluded regulations narrowly tailored serve state substantial interest preventing access tobacco products minors also noted restrictions apply establishments ibid petitioners devoted little briefing sales practices regulations understanding regulations accordingly limited parties submissions read regulations basically require tobacco retailers place tobacco products behind counters require customers contact salesperson able handle tobacco product cigarette smokeless tobacco petitioners contend first amendment principles require invalidation outdoor indoor advertising restrictions require invalidation display regulations issue case brief petitioners lorillard tobacco et al see also reply brief petitioner smokeless tobacco nos cigar petitioners contend displays cigars prohibited brand cigar unique customers traditionally sought handle compare cigars time purchase brief petitioners altadis et al reply brief petitioners altadis et al reject contentions assuming petitioners cognizable speech interest particular means displaying products cf cincinnati discovery network distribution magazine newsracks regulations withstand first amendment scrutiny massachusetts sales practices provisions regulate conduct may communicative component massachusetts seeks regulate placement tobacco products reasons unrelated communication ideas see supra see also pap plurality opinion souter concurring part dissenting part johnson conclude state demonstrated substantial interest preventing access tobacco products minors adopted appropriately narrow means advancing interest see supra unattended displays tobacco products present opportunity access without proper age verification required law thus state prohibits displays allow individual obtain tobacco products without direct contact salesperson clear regulations leave open ample channels communication regulations significantly impede adult access tobacco products moreover retailers means exercising cognizable speech interest presentation products presume vendors may place empty tobacco packaging open display display actual tobacco products long display accessible sales personnel cigars indication regulations customer unable examine cigar prior purchase long examination takes place salesperson cigar petitioners also list massachusetts prohibition sampling free giveaways among regulations challenge first amendment grounds see code mass regs brief petitioners altadis et al point briefs oral argument however cigar petitioners argue merits first amendment claim respect sampling giveaway regulation decline address issue sufficiently briefed argued see northwest airlines county kent williams granfinanciera nordberg conclude sales practices regulations withstand first amendment scrutiny means chosen state narrowly tailored prevent access tobacco products minors unrelated expression leave open alternative avenues vendors convey information products customers inspect products purchase iv observed tobacco use particularly among children adolescents poses perhaps single significant threat public health fda brown williamson tobacco policy perspective understandable attempt prevent minors using tobacco products reach age capable weighing risks potential benefits tobacco use adult activities federal law however places limits policy choices available case congress enacted comprehensive scheme address cigarette smoking health advertising state regulation cigarette advertising attempts address concern even respect youth first amendment also constrains state efforts limit advertising tobacco products long sale use tobacco lawful adults tobacco industry protected interest communicating information products adult customers interest receiving information extent federal law first amendment prohibit state action localities remain free combat problem underage tobacco use appropriate means judgment appeals first circuit therefore affirmed part reversed part cases remanded proceedings consistent opinion ordered lorillard tobacco company et petitioners thomas reilly attorney general massachusetts et al altadis et petitioners thomas reilly attorney general massachusetts et al writs certiorari appeals first circuit june justice kennedy justice scalia joins concurring part concurring judgment obvious overbreadth outdoor advertising restrictions suffices invalidate fourth part test central hudson gas elec public serv result view need consider whether restrictions satisfy third part test proposition considerable doubt cf post thomas concurring part concurring judgment neither required consider whether central hudson retained face substantial objections made see post opinion thomas continuing concerns test gives insufficient protection truthful nonmisleading commercial speech require refrain expressing agreement application third part central hudson see liquormart rhode island opinion stevens joined kennedy ginsburg exception part join opinion lorillard tobacco company et petitioners thomas reilly attorney general massachusetts et al altadis et petitioners thomas reilly attorney general massachusetts et al writs certiorari appeals first circuit june justice thomas concurring part concurring judgment join opinion exception part agree massachusetts cigarette advertising regulations preempted federal cigarette labeling advertising act et seq also agree disposition first amendment challenges regulations issue share view regulations fail even intermediate scrutiny central hudson gas elec public serv time continue believe government seeks restrict truthful speech order suppress ideas conveys strict scrutiny appropriate whether speech question may characterized commercial see liquormart rhode island thomas concurring part concurring judgment subject advertising restrictions strict scrutiny hold violate first amendment heart litigation massachusetts regulation imposes sweeping ban speech tobacco products code mass regs governs cigarettes smokeless tobacco governs cigars prohibit outdoor advertising indoor advertising seen outdoors advertising even visible outdoors lower five feet restrictions superficially limited geographic scope apply within feet public playground playground area public park elementary school secondary school appeals acknowledged zone prohibition covers much percent three largest cities massachusetts consolidated cigar reilly practical effect little different total ban cf playboy entertainment group government burdens must satisfy rigorous scrutiny bans respondents suggest passing regulations restrictions receive intermediate level scrutiny traditionally associated various forms time place manner regulations brief respondents indeed upheld time place manner regulations prohibited certain kinds outdoor signs see members city council los angeles taxpayers vincent similarly upheld zoning laws effect restricting certain kinds sexually explicit expression see renton playtime theatres abiding characteristic valid time place manner regulations content neutrality see ward rock racism vincent city prohibited signs public property suppress message conveyed signs simply minimize esthetic effect visual clutter likewise ordinance renton aimed expression secondary effects caused adult businesses regulations different massachusetts concerned secondary effects tobacco advertising concerned advertising primary effect induce view advertisements purchase use tobacco products cf boos barry listeners reactions speech type secondary effects referred renton words seeks suppress speech tobacco objects content speech consistently applied strict scrutiny regulations speech see turner broadcasting system fcc time declined give first amendment protection commercial speech valentine chrestensen went far say constitution imposes restraint government respects purely commercial advertising position repudiated virginia bd pharmacy virginia citizens consumer council explained even speech propose commercial protected first amendment quoting pittsburgh press pittsburgh human relations since followed uncertain course much uncertainty generated malleability balancing test central hudson see liquormart thomas concurring part concurring judgment observed previously philosophical historical basis asserting commercial speech lower value noncommercial speech indeed doubt whether even possible draw coherent distinction commercial noncommercial speech see citing kozinski banner afraid commercial speech rev clear regulations targeted anything advertising commercial products example directed billboards promoting political candidates agree restrictions subjected strict scrutiny view asserted government interest keeping people ignorant suppressing expression per se illegitimate justify regulation commercial speech justify regulation noncommercial speech thomas concurring part concurring judgment essentially interest asserted adhering views expressed liquormart subject massachusetts regulations strict scrutiny even one accepts premise commercial speech generally entitled lower level constitutional protection forms speech follow regulations deserve anything less strict scrutiny although recognized several categories speech normally receive reduced first amendment protection first amendment protection never held government may regulate speech within categories way wishes rather said areas speech consistently first amendment regulated constitutionally proscribable content paul even speech falls category reduced constitutional protection government may engage content discrimination reasons unrelated characteristics speech place within category example city may ban obscenity obscenity unprotected category see roth may ban legally obscene works contain criticism city government supra explaining distinction commercial speech forms speech emphasized commercial speech easily verifiable disseminator less likely chilled proper regulation virginia characteristics led us conclude context commercial speech less necessary tolerate inaccurate statements fear silencing speaker also appropriate require commercial message appear form include additional information warnings disclaimers necessary prevent deceptive ibid whatever validity reasoning limited peculiarly commercial harms commercial speech threaten risk deceptive misleading advertising observed state may choose regulate price advertising one industry others risk fraud one characteristics commercial speech justifies depriving full first amendment protection view greater state may prohibit commercial advertising depicts men demeaning fashion citations omitted liquormart several members said much thing hen state entirely prohibits dissemination truthful nonmisleading commercial messages reasons unrelated preservation fair bargaining process far less reason depart rigorous review first amendment generally demands opinion stevens joined kennedy ginsburg whatever power state may regulate commercial speech may use power limit content commercial speech done reasons unrelated preservation fair bargaining process regulation like regulation speech must subjected strict scrutiny effort avoid implications basic principles first amendment law respondents make two principal claims first argue regulations target deceptive misleading speech see brief respondents petitioners advertising clearly engenders potential deception confusion allows regulation commercial speech based content quoting bolger youngs drug products second argue regulations restrict speech promotes illegal transaction sale tobacco minors see brief respondents regulations exhibit close connection commercial transaction state prohibited neither theory properly purposes summary judgment respondents willing assume tobacco advertisements issue truthful nonmisleading speech lawful activity although respondents claim conceded point see brief respondent fact remains urge theories lower courts general consider arguments affirmance presented see glover concessions make easy case one clearly controlled liquormart greater new orleans broadcasting events even entertain arguments neither persuasive respondents suggest tobacco advertising misleading youthful imagery sheer ubiquity leads children believe tobacco use desirable pervasive brief respondents see also brief amicus curiae many children lack maturity judgment resist tobacco industry appeals excitement glamour independence justification belied however sweeping overinclusivity regulations massachusetts done nothing target prohibition advertisements appealing excitement glamour independence ban applies equal force appeals torpor homeliness servility focused youthful imagery smokers depicted sides buildings may play shuffleboard may ride skateboards regulations even prohibit store accurately stating prices cigarettes sold display possibly misleading unless one accepts state apparent view simple existence tobacco advertisements misleads people believing tobacco use pervasive actually state misunderstands purpose advertising promoting product yet pervasively used cause yet widely supported primary purpose advertising tobacco advertisements misleading suggesting pervasive use tobacco products advertisements attempt expand market product rally support political movement inference advertisements businesses like tobacco use pervasive entirely reasonable advertising gives rise inference way deceptive state also contends tobacco advertisements may restricted propose illegal sale tobacco minors direct solicitation unlawful activity may course proscribed whether commercial nature see brandenburg ohio per curiam state power punish speech solicits incites crime nothing commercial character speech often case solicitation commit crime entirely noncommercial harm state seeks prevent harm caused unlawful activity solicited unrelated commercial transaction thus reason apply anything usual rule evaluating solicitation incitement simply speech question happens commercial see carey population services viewed effort proscribe solicitation unlawful conduct regulations clearly fail brandenburg test state may forbid proscribe advocacy use force law violation except advocacy directed inciting producing imminent lawless action likely incite produce action brandenburg supra even massachusetts prohibit advertisements reading hey kids buy cigarettes regulations sweep much broadly cover statement representation purpose effect promote use sale tobacco products whether statement directly indirectly addressed minors code mass regs respondents theory tobacco advertising may limited viewers may legally act difficult see stopping point rule allow state prohibit speech favor activity illegal minors engage presumably state ban car advertisements effort enforce restrictions underage driving regulate advertisements urging people vote children permitted vote although solicitor general resisted implication theory see tr oral arg state prohibit advertisements adult businesses children forbidden patronize bottom respondents theory rests premise indirect solicitation enough empower state regulate speech petitioners put even advertisement directed adults give children may happen see wrong idea therefore must suppressed public view brief petitioners lorillard tobacco et al view foreign first amendment every idea incitement gitlow new york holmes dissenting speech may suppressed whenever might inspire someone act unlawfully limit state censorial power cf american booksellers hudnut aff deeper flaw state argument even massachusetts valid interest regulating speech directed children argues may easily misled sale tobacco products unlawful may pursue interest expense free speech rights adults theory public debate limited order protect impressionable children long historical pedigree socrates condemned doer evil inasmuch corrupts youth dialogues plato apology jowett ed theory met less enthusiastic reception athenian assembly butler michigan struck statute restricting sale materials tending incite minors violent depraved immoral acts quoting mich penal code effect law observed reduce adult population michigan reading fit children justice frankfurter colorfully put surely burn house roast pig ibid held consistently speech suppressed solely protect young ideas images legislative body thinks unsuitable erznoznik jacksonville accord bolger upheld federal communications commission power regulate indecent nonobscene radio broadcasts pacifica relied heavily considered special justifications regulation broadcast media applicable speakers reno american civil liberties union emphasized radio uniquely pervasive uniquely accessible children even young read pacifica supra emphasis added outside broadcasting context adhered view governmental interest protecting children harmful materials justify unnecessarily broad suppression speech addressed adults reno supra see also playboy entertainment objective shielding children suffice support blanket ban protection accomplished less restrictive alternative massachusetts may avoid application strict scrutiny simply seeks protect children ii strict scrutiny advertising ban may saved narrowly tailored promote compelling government interest see interest served alternative less restrictive speech state must use alternative instead see ibid reno supra applying standard regulations must fail massachusetts asserts compelling interest reducing tobacco use among minors applied adults interest manipulating market choices keeping people ignorant legitimate let alone compelling see supra assuming compelling interest reducing underage smoking ban outdoor advertising promotes interest doubt true ban advertising five feet see code mass regs appeals admitted misgivings effectiveness restriction based assumption minors five feet tall less frequently raise view well might since respondents produced evidence support counterintuitive assumption obviously even short children see objects taller anyway time years old median girl median boy five feet tall see centers disease control prevention growth charts thus reason believe regulation anything protect minors exposure tobacco far serving compelling interest ban displays five feet seems lack even minimally rational relationship conceivable interest also considerable reason doubt restrictions cigar smokeless tobacco outdoor advertising promote state interest outdoor advertising cigars virtually nonexistent cigar makers use billboards massachusetts fact nationwide outdoor advertising budget per year see extent outdoor advertising exists evidence targeted youth significant effect youth appeals focused state evidence relationship tobacco advertising tobacco use thus eliding dearth evidence showing relationship cigar advertising cigar use minors respondents principally rely national cancer institute report cigar smoking see brief respondents report contains conclusory assertion cigars heavily promoted ways likely influence adolescent use even discuss outdoor advertising instead focusing ndorsements celebrities resurgence cigar smoking movies cigar lifestyle magazines cigar aficionado national cancer institute cigars health effects trends smoking tobacco control monograph pp record doc exh report candidly acknowledges dditional information needed better characterize marketing efforts cigars learn extent advertising promotion cigars reaches affects kids words respondents adduced evidence ban cigar advertising anything promote asserted interest much true smokeless tobacco respondents place primary reliance evidence late smokeless tobacco company increased sales advertising targeted young males see brief respondents nothing show advertising affecting minors problem today invokes food drug administration findings see ante report cites based conclusions observed large increase use smokeless tobacco products young people fed reg premise contradicted one respondents studies reports large steady decrease smokeless tobacco use among massachusetts high school students see app finding casts doubt whether state interest additional regulation truly compelling importantly cigarette smoking among high school students exhibited trend see indicates respondents effort aggregate cigarettes smokeless tobacco misguided case even assuming regulations advance compelling state interest must struck narrowly tailored correct see ante arbitrary radius demonstrates lack narrow tailoring problem goes deeper prohibited zone defined solely circles drawn around schools playgrounds necessarily overinclusive regardless radii circles consider example billboard located within feet school visible elevated freeway runs nearby billboard threaten interests respondents assert banned anyway regulations take account whether advertisement even seen children prohibited zone even suspect includes percent area three largest cities state loose tailoring advertising ban displayed geographic scope also nature advertisements affects regulations define advertisement broadly term includes written statement representation made person sells tobacco products purpose effect promote use sale product almost everything business purpose promoting sale products definition cover anything tobacco retailer might say prohibited speech even commercial store displayed sign promoting candidate attorney general promised repeal tobacco regulations elected probably purpose promoting sales display sign illegal even definition advertisement read narrowly require specific reference tobacco products still draconian effects example prohibit tobacconist displaying sign reading joe cigar shop effect rule make cigars impossible find retailers allowed display sign reading tobacco products sold rather make individual cigar retailers difficult identify making change names respondents assert interest cigar retailer anonymity difficult conceive interest rule said narrowly tailored regulations fail narrow tailoring inquiry another fundamental reason addition examining narrower advertising ban state examined ways advancing interest require limiting speech respondents several alternatives obviously directly regulated conduct concerned see rubin coors brewing invalidating ban disclosure alcohol content beer labels part government pursued alternatives directly limiting alcohol content beers see also liquormart brandeis concurring iii underlying many arguments respondents amici idea tobacco sense sui generis special unlike object regulation application normal first amendment principles suspended see brief respondents referring tobacco use one state indeed nation urgent problems brief amicus curiae cataloging prevalence effects tobacco use brief american medical association et al amici curiae advocating authority governments protect children uniquely dangerous messages smoking poses serious health risks advertising may induce children lack judgment make intelligent decision whether smoke begin smoking lead addiction state assessment urgency problem posed tobacco policy judgment place nevertheless seems appropriate point uphold massachusetts tobacco regulations accept line reasoning permit restrictions advertising host products tobacco use told single leading cause preventable death brief amicus curiae second largest contributor mortality rates obesity koplan dietz caloric imbalance public health policy jama associated increased incidence diabetes hypertension coronary artery disease represents public health problem rapidly growing worse see mokdad et spread obesity epidemic jama although growth obesity last decades many causes significant factor increased availability large quantities foods see hill environmental contributions obesity epidemic science foods course aggressively marketed promoted fast food companies see nestle jacobson halting obesity epidemic dept health human services public health reports respondents say tobacco companies covertly targeting children advertising fast food companies openly see kramer mcd steals another toy bk advertising age describing mcdonald promotional campaign lucas bk takes choice message kids adweek june describing burger king promotional campaign moreover considerable evidence successful changing children eating behavior see borzekowski robinson effect dietetic assn taras sallis patterson nader nelson television influence children diet physical activity dev behav pediatrics effect advertising children eating habits significant two reasons first childhood obesity serious health problem right troiano flegal overweight children adolescents pediatrics second eating preferences formed childhood tend persist adulthood birch fisher development eating behaviors among children adolescents pediatrics even though fast food addictive way tobacco children exposure fast food advertising deleterious consequences difficult reverse take another example third largest cause preventable deaths alcohol mcginnis foege actual causes death jama alcohol use associated tens thousands deaths year cancers digestive diseases victims alcohol use limited drink alcohol people killed people injured car accidents dept justice alcohol crime year alcohol involved several million violent crimes including almost sexual assaults although every state prohibits sale alcohol age much alcohol advertising viewed children federal trade commission evans kelly alcohol industry grube wallack television beer advertising drinking knowledge beliefs intentions among schoolchildren pub health surprisingly considerable evidence exposure alcohol advertising associated underage drinking see atkin survey experimental research effects alcohol advertising effects mass media use abuse alcohol martin ed madden grube frequency nature alcohol tobacco advertising televised sports pub health like underage tobacco use underage drinking effects undone later life begin drinking early much likely become dependent alcohol indeed probability lifetime alcohol dependence decreases approximately percent additional year age alcohol first used grant dawson age onset alcohol use association alcohol abuse dependence substance abuse obviously effects underage drinking irreversible nearly americans killed year teenage drunk drivers see national highway traffic safety administration youth fatal crash alcohol facts respondents identified principle law logic preclude imposition restrictions fast food alcohol advertising similar seek impose tobacco advertising cf tr oral arg effect seek vice exception first amendment exception exists see liquormart opinion stevens joined kennedy thomas ginsburg almost limit product poses threat public health public morals might reasonably characterized state legislature relating vice activity vice label unaccompanied corresponding prohibition commercial behavior issue fails provide principled justification regulation commercial speech activity ibid legislature ever sought restrict speech activity regarded harmless inoffensive calls limits expression always made specter threatened harm looming identity harm may vary people inspired totalitarian dogmas subvert republic inflamed racial demagoguery embrace hatred bigotry enticed cigarette advertisements choose smoke risking disease therefore answer state say makers cigarettes harm perhaps respect different purveyors harmful products advocates harmful ideas state seeks silence entitled protection first amendment lorillard tobacco company et petitioners thomas reilly attorney general massachusetts et al altadis et petitioners thomas reilly attorney general massachusetts et al writs certiorari appeals first circuit june justice souter concurring part dissenting part join parts opinion join part opinion justice stevens concurring judgment part dissenting part respectfully dissent part opinion like justice stevens remand trial constitutionality limit lorillard tobacco company et petitioners thomas reilly attorney general massachusetts et al altadis et petitioners thomas reilly attorney general massachusetts et al writs certiorari appeals first circuit june justice stevens justice ginsburg justice breyer join justice souter joins part concurring part concurring judgment part dissenting part suit presents two separate sets issues first involving preemption straightforward second involving first amendment complex strongly disagree conclusion federal cigarette labeling advertising act fclaa act et seq amended precludes localities regulating location cigarette advertising dissent parts opinion first amendment questions agree outdoor advertising restrictions imposed massachusetts serve legitimate important state interests record indicate measures properly tailored serve interests present record enable us adjudicate merits claims summary judgment vacate decision upholding restrictions remand trial constitutionality outdoor advertising regulations finally believe either advertising restrictions sales practice restrictions implicate significant first amendment concerns uphold entirety majority acknowledges ante prevailing principles examination scope preemption provision must start assumption historic police powers superseded federal act unless clear manifest purpose congress cipollone liggett group quoting rice santa fe elevator see also california div labor standards enforcement dillingham medtronic lohr regulations issue suit implicate two powers lie heart traditional police power power regulate land usage power protect health safety minors precedents require construe preemption provision narrow ly see also cippolone congress intent preempt particular category regulation ambiguous regulations text preemption provision must viewed context proper attention paid history structure purpose regulatory scheme appears see medtronic cippolone accord ante assessment scope preemption provision must give effect reasoned understanding way congress intended statute surrounding regulatory scheme affect business consumers law medtronic task properly performed leads inexorably conclusion congress intend preempt state local regulations location cigarette advertising adopted provision issue suit congress made clear purposes regulatory endeavor explaining precision federal policies motivating actions according acts congress adopted comprehensive federal program deal cigarette labeling advertising respect relationship smoking health two reasons inform public smoking may hazardous health ensure commerce interstate economy impeded diverse nonuniform confusing cigarette labeling advertising regulations respect relationship smoking health order serve second purpose necessary preempt state regulation content cigarette labels cigarette advertising one state required inclusion particular warning package cigarettes another state demanded different formulation cigarette manufacturers forced difficult costly practice producing different packaging use different foreclose waste resources entailed patchwork regulatory system congress expressly precluded regulators requiring placement cigarette packaging statement relating smoking health similar concerns applied cigarette advertising different regulatory bodies required different warnings statements used cigarette manufacturers advertised products text layout company ads differ locale locale resulting costs come little health benefit moreover given nature publishing might well case cigarette companies able advertise national publications without violating laws jurisdictions response concerns congress adopted parallel provision preempting state local regulations requiring inclusion cigarette advertising statement relating smoking health ed amended however need interfere state local zoning laws regulations prescribing limitations location signs billboards laws prohibiting cigarette company hanging billboard near school boston way conflict laws permitting hanging billboard jurisdictions laws even impose significant administrative burden advertisers great majority localities impose general restrictions signage thus requiring advertisers examine local law posting signs whether laws preempted see greater metroploitan food council giuliani divergent local zoning restrictions location sign advertising commonplace feature national landscape cigarette advertisers always bound observe hence unsurprising congress include provision act preempting location restrictions public health cigarette smoking act act stat made two important changes preemption provision first limited applicability advertising prong localities paving way federal regulation cigarette advertising second expanded scope advertising preemption provision previously prohibited requiring particular statements cigarette advertising based health concerns henceforth prohibited imposing requirement prohibition based smoking health respect advertising promotion cigarettes ripped context provision theoretically read breathtaking expansion limitations imposed act however precedents common sense require us read statutory provisions particular preemption clauses context neighboring provisions history purpose statutory scheme see supra viewed quite clear amendments intended expand provision capture narrow set content regulations escaped preemption prior provision fundamentally reorder division regulatory authority federal state governments signs point inescapably conclusion congress intended preempt content regulations act crucial importance making modifications preemption provision congress alter statement laying federal policies provision intended serve see day stated federal policies area inform public dangers cigarette smoking protect cigarette companies burdens confusing contradictory state regulations labels advertisements see ibid retention provision unchanged strong evidence congress intention expanding preemption clause capture forms content regulation fallen cracks prior provision example state laws prohibiting cigarette manufacturers making particular claims advertising requiring utilize specified layouts include particular graphics legislative history provision also supports reading record contain evidence congress intended expand scope preemption beyond content contrary senate report makes clear changes merely clarified scope original provision even amended congress perceived provision narrowly phrased emphasized purpose avoid chaos created multiplicity conflicting regulations ibid according senate report changes way affect power state political subdivision state respect sale cigarettes minors similar police regulations ibid analyzing scope preemption provision courts appeals almost uniformly concluded state local laws regulating location billboards signs preempted see consolidated cigar reilly case greater new york metropolitan food council giuliani federation advertising industry representatives chicago penn advertising baltimore mayor city council baltimore contra lindsey county health dept decisions cases relied heavily upon discussion preemption provision cipollone cipollone members expressed three different opinions concerning scope preemption mandated provision differences related entirely plaintiff claims based content defendants advertising preempted nary word three cipollone opinions supports thesis interpreted preempt state regulation location signs advertising cigarettes indeed seven nine justices subscribed opinions explicitly tethered scope preemption provision congress concern diverse nonuniform confusing cigarette labeling advertising regulations opinion blackmun joined kennedy souter firmly convinced congress amended preemption provision intend expand application provision beyond content therefore find conclusion inescapable zoning regulation issue suit requirement prohibition respect advertising within meaning even convinced however still dissent conclusion regard preemption provision least ambiguous historical record simply reflect congress clear manifest purpose preempt attempts utilize traditional zoning authority protect health welfare minors absent manifest purpose massachusetts sister retain traditional police ii first amendment issues raised petitioners disagreements majority less significant however reach different dispositions rule height restrictions indoor advertising evaluation sales practice restrictions differs rule complete accord analysis importance interests served advertising restrictions lucidly explains interests compelling ante ensuring minors become addicted dangerous drug able make mature informed decision health risks associated substance unlike products sold human consumption tobacco products addictive ultimately lethal many users interest combined state concomitant concern effective enforcement laws regarding sale tobacco minors becomes clear massachusetts regulations serve interests highest order therefore immune challenge whatever level scrutiny one chooses employ nevertheless noble ends save statute whose means poorly tailored statutes may invalid two different reasons first means chosen may insufficiently related ends purportedly serve see rubin coors brewing striking statute prohibiting beer labels displaying alcohol content provision significantly forward government interest health safety welfare citizens alternatively statute may broadly drawn effectively achieving ends unduly restricts communications unrelated policy aims see playboy entertainment group striking statute intended protect children indecent television broadcasts part constituted significant restriction communication speakers willing adult listeners second difficulty frequently encountered government adopts measures protection children impose substantial restrictions ability adults communicate one another see playboy entertainment group supra reno american civil liberties union sable communications fcc mind rule present tailoring problem first type reasons cogently explained prior opinions opinion may fairly assume advertising stimulates consumption therefore regulations limiting advertising facilitate efforts stem see rubin ante furthermore government intention limit consumption particular segment community case minors appropriate indeed necessary tailor advertising restrictions areas segment community congregates case area surrounding schools playgrounds however share majority concern whether rule unduly restricts ability cigarette manufacturers convey lawful information adult consumers course question ban communications given subject effective way prevent children exposure material state fiat reduce level discourse fit children butler michigan cf bolger youngs drug products level discourse reaching mailbox simply limited suitable sandbox hand efforts protect children exposure harmful material undoubtedly spillover effect free speech rights adults see fcc pacifica foundation finding appropriate balance easy matter though many factors plausibly enter equation calculating whether location restriction goes far regulating adult speech one crucial question whether regulatory scheme leaves available sufficient alternative avenues communication renton playtime theatres members city council los angeles taxpayers vincent brennan dissenting accord ante think record contains sufficient information enable us answer question vacate award summary judgment upholding rule remand trial issue therefore agree majority appeals sufficiently consider implications rule lawful communication adults see ante dissent disposition reflected part opinion doubt rule prohibits cigarette advertising substantial portion massachusetts largest cities even question however parties remain dispute percentage urban areas actually limits tobacco advertising see ante moreover record entirely silent impact regulation portions commonwealth dearth reliable statistical information scope ban problematic importantly lacks sufficient qualitative information areas cigarette advertising prohibited permitted fact urban area unavailable tobacco advertisements may constitutionally irrelevant available areas heavily trafficked central city cultural life provide sufficient forum propagation manufacturer message one electric sign times square foot golden gate bridge may seen potential customers hundred signs dispersed residential neighborhoods finally lacks information avenues communication available cigarette manufacturers retailers example depending answers empirical questions lack data ubiquity print advertisements hawking particular brands cigarettes might suffice inform adult consumers special advantages respective brands similarly print advertisements circulars mailed people homes word mouth general information may may sufficient imbue adult population knowledge particular stores chains stores types stores sell tobacco granting summary judgment respondents district judge treated first amendment issues suit pure questions law stated material facts dispute concerning issues supp due respect disagree ultimate question us one law answer question turns complicated factual questions relating practical effects regulations record reveal answer disputed questions fact denied summary judgment parties allowed parties present evidence note moreover alleged overinclusivity advertising regulations ante thomas concurring part concurring judgment relevant whether regulations narrowly tailored beli claim tobacco advertising imagery misleads children believing smoking healthy glamorous sophisticated ibid see brief amicus curiae american legacy foundation support respondent nn brief amicus curiae city los angeles support respondent documenting charge advertisements cigarettes smokeless tobacco target underage smokers purposes summary judgment state conceded tobacco companies advertising concerns lawful activity misleading disposition case today state remains free proffer evidence advertising fact misleading see virginia bd pharmacy virginia citizens consumer council uch commercial speech provably false even wholly false deceptive misleading foresee obstacle state dealing effectively problem vacate grant summary judgment respondents issue remand proceedings sales practice indoor advertising restrictions addressing petitioners challenge sales practice restrictions imposed massachusetts statute concluded provisions violate first amendment concur judgment write separately issue make two brief points first agree district appeals sales practice restrictions best analyzed regulating conduct speech see decision display one products doubt serves marginal communicative function said virtually human activity performed hope intention evoking interest others long recognized need differentiate legislation targets expression legislation targets conduct legitimate reasons imposes incidental burden expression see however difficult line may draw seems clear laws requiring stores maintain items behind counters prohibiting displays fall squarely conduct side line restrictions accessibility dangerous products common feature regulatory regime governing american retail stores see nothing least bit constitutionally problematic requiring individuals ask assistance salesclerk order examine purchase handgun bottle penicillin package cigarettes second though admit question closer similar reasons uphold regulation limiting tobacco advertising certain retail establishments space five feet viewed isolation provision appears target speech extent target speech may well run constitutional problems connection ends statute purports serve means chosen dubious nonetheless ultimately persuaded provision unobjectionable little adjunct sales practice restrictions commonwealth massachusetts properly legislate placement products nature displays convenience stores draw distinction restrictions height restrictions related product advertising accord commonwealth latitude imposing restrictions slightest impact ability adults purchase poisonous product may save children taking first step road addiction iii strongly disagree conclusion preemption issue dissent parts opinion though agree much say first amendment ultimately disagree disposition reasoning regulations footnotes together altadis successor consolidated cigar havatampa et al reilly attorney general massachusetts et also certiorari footnotes senate report explained provision way affect power state political subdivision state respect taxation sale cigarettes minors prohibition smoking public buildings similar police regulations limited entirely state local requirements prohibitions advertising cigarettes footnotes regulations prohibit sale tobacco products manner direct exchange forbid displays require tobacco products accessible store personnel see addition prohibit sampling promotional giveaways see agree see ante regulations govern conduct rather expression upheld test tobacco advertising provides good illustration sale tobacco products subject considerable political controversy surprisingly tobacco advertisements promote product take stand political debate see brief national association convenience stores amicus curiae recent cigarette advertisement example displayed brand logo next text reading politicians smoke cigars taxing cigarettes app brief national association convenience stores amicus curiae say regulation nothing points see ante security concerns require convenience stores designed interior store visible street see also occupational safety health administration recommendations workplace violence prevention programs retail establishments shelves low enough assure good visibility throughout store ban displays five feet ban displays visible outside store combined security concerns prevent many convenience stores displaying tobacco products thus despite state disclaimers see brief respondents state quite clearly trying suppress altogether communication product information interested consumers restrictions effectively produce total ban footnotes see florida lime avocado growers paul conclude congress legislated ouster state statute absence unambiguous congressional mandate effect cippolone blackmun joined kennedy souter concurring part concurring judgment part dissenting part principles federalism respect state sovereignty underlie reluctance find congress spoken directly issue apply equal force congress spoken though ambiguously cases question whether congress intended state regulation extent absent unambiguous evidence infer scope beyond clearly mandated congress language emphasis deleted cf central hanover bank trust commissioner hand likely way misapprehend meaning language constitution statute contract read words literally forgetting object document whole meant secure cipollone liggett group held one consequences change language statute preempts actions nature magazine publishing distribution conceivable state locality might cause kind regulatory confusion statute drafted prevent adopting law prohibiting advertising cigarettes publication distributed within boundaries least modicum support suggestion congress may intended preemption restrictions see noting california considering ban time congress considering act however concerns posed diverse regulation national publications present regard local regulation location signs billboards one point briefly argues wrong conclude congress intended preclude content restrictions imposed location restriction ban television radio advertising another provision bill see ante argument something non sequitur fact congress adopting comprehensive legislative package chose impose federal location restriction national medium bearing whether separate provision legislature intended strip localities authority impose location restrictions purely local advertising media petitioners suggest passing massachusetts regulation amounts ba brief petitioners lorillard tobacco et al thus de facto regulation content cigarette ads need consider today circumstances location restrictions approximating total ban might constitute regulation content thus preempted act petitioners failed introduce sufficient evidence create genuine issue claim petitioners introduced maps purporting show cigarette advertising barred boston proper worcester springfield see app maps distinguish area restricted due regulation issue area restricted due regulations general zoning requirements applicable outdoor advertising maps show percentage respect either area population state limits cigarette advertising cover three cities containing approximately state population see census bureau statistical abstract providing population figures area cigarette advertising restricted likely considerably less less densely populated portions state even interpretation data favorable petitioners massachusetts regulation still permits indoor outdoor cigarette tising least geographical area state short regulation equivalent total ban cigarette advertising hence agree large part substance arguments proffered respondents preemption issue reject conclusion distinction finds expression limiting phrase based smoking health see brief respondent brief amicus curiae accord penn advertising baltimore mayor city council baltimore instead follow first second seventh circuits concluding statute regulating location advertising requirement prohibition respect advertising within meaning act see consolidated cigar reilly case greater metropolitan food council giuliani federation advertising industry representatives chicago holding federal law precludes localities protecting children dangerous products within feet school particularly ironic given conclusion six years ago federal government lacks constitutional authority impose ban see lopez despite absence identified federal interest creating invisible federal zone extending feet beyond often irregular boundaries school property majority construes today statute us forecloses experimenting exercising judgment area lay claim right history expertise kennedy concurring wonder sensitive federalism concerns adopt strange construction statutory language whose quite different purpose congress took pains explain moreover even practice require particularized showing effects advertising consumption respondents met burden suit see ante summarizing evidence observations indicate analysis whether rule impermissibly curtails speech adults require particularized analysis may well ask slightly different questions conceivably reach different results regard constitutionality restrictions applied manufacturers retailers ban applies stores located within school playground contains exception establishments see ante reflecting partial agreement join parts concur judgment reflected part