Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 51 (2001)

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Cite as: 533 U. S. 525 (2001)

Opinion of Thomas, J.

I have observed previously that there is no "philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech." Id., at 522. Indeed, I doubt whether it is even possible to draw a coherent distinction between commercial and noncommercial speech. See id., at 523, n. 4 (citing Kozinski & Banner, Who's Afraid of Commercial Speech, 76 Va. L. Rev. 627 (1990)).2

It should be clear that if these regulations targeted anything other than advertising for commercial products—if, for example, they were directed at billboards promoting political candidates—all would agree that the restrictions should be subjected to strict scrutiny. In my view, an asserted government interest in keeping people ignorant by suppressing expression "is per se illegitimate and can no more justify regulation of 'commercial' speech than it can justify regulation of 'noncommercial' speech." 517 U. S., at 518 (Thomas, J., concurring in part and concurring in judgment). That is essentially the interest asserted here, and, adhering to the views I expressed in 44 Liquormart, I would subject the Massachusetts regulations to strict scrutiny.

B

Even if one accepts the premise that commercial speech generally is entitled to a lower level of constitutional protection than are other forms of speech, it does not follow that the regulations here deserve anything less than strict scrutiny. Although we have recognized several categories of

2 Tobacco advertising provides a good illustration. The sale of tobacco products is the subject of considerable political controversy, and not surprisingly, some tobacco advertisements both promote a product and take a stand in this political debate. See Brief for National Association of Convenience Stores as Amicus Curiae 20-22. A recent cigarette advertisement, for example, displayed a brand logo next to text reading, "Why do politicians smoke cigars while taxing cigarettes?" App. to Brief for National Association of Convenience Stores as Amicus Curiae 2a.

575

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