Cite as: 533 U. S. 525 (2001)
Opinion of Stevens, J.
In granting summary judgment for the respondents, the District Judge treated the First Amendment issues in this suit as pure questions of law and stated that "there are no material facts in dispute concerning these issues." 84 F. Supp. 2d 180, 183 (Mass. 2000). With due respect, I disagree. While the ultimate question before us is one of law, the answer to that question turns on complicated factual questions relating to the practical effects of the regulations. As the record does not reveal the answer to these disputed questions of fact, the court should have denied summary judgment to both parties and allowed the parties to present further evidence.
I note, moreover, that the alleged "overinclusivity" of the advertising regulations, ante, at 578 (Thomas, J., concurring in part and concurring in judgment), while relevant to whether the regulations are narrowly tailored, does not "beli[e]" the claim that tobacco advertising imagery misleads children into believing that smoking is healthy, glamorous, or sophisticated, ibid. See Brief for American Legacy Foundation as Amicus Curiae 4-5, and nn. 9, 10; Brief for City of Los Angeles et al. as Amici Curiae 4 (documenting charge that advertisements for cigarettes and smokeless tobacco target underage smokers). For purposes of summary judgment, the State conceded that the tobacco companies' advertising concerns lawful activity and is not misleading. Under the Court's disposition of the cases today, the State remains free to proffer evidence that the advertising is in fact misleading. See Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976) ("[M]uch commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State's dealing effectively with this problem"). I would vacate the grant of summary judgment to respondents on this issue and remand for further proceedings.
and conceivably could reach different results—with regard to the constitutionality of the restrictions as applied to manufacturers and retailers.
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