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Philip Morris USA, Inc. v. City and County of San Francisco
United States Court of Appeals, Ninth Circuit.September 9, 2009345 Fed.Appx. 276 (Approx. 4 pages)
Philip Morris USA, Inc. v. City and County of San Francisco
United States Court of Appeals, Ninth Circuit.September 9, 2009345 Fed.Appx. 276 (Approx. 4 pages)
345 Fed.Appx. 276
This case was not selected for publication in the Federal Reporter.
Not for Publication in West's Federal Reporter See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Ninth Circuit Rule 36-3. (Find CTA9 Rule 36-3)
United States Court of Appeals,
Ninth Circuit.PHILIP MORRIS USA, INC., Plaintiff—Appellant,
v.
CITY AND COUNTY OF SAN FRANCISCO; et al., Defendants—Appellees.
No. 08–17649.
Argued and Submitted Aug. 12, 2009.Filed Sept. 9, 2009.
Attorneys and Law Firms
*277 Daniel Paul Collins, Gregory Paul Stone, Esquire, Mark Remy Yohalem, Esquire, Munger, Tolles & Olson LLP, Los Angeles, CA, Hojoon Hwang, Esquire, Jason Rantanen, Munger Tolles & Olson, LLP, San Francisco, CA, for Plaintiff–Appellant.
Vince Chhabria, Esquire, Office of The City Attorney, San Francisco, CA, for Defendants–Appellees.
Appeal from the United States District Court for the Northern District of California, Claudia Wilken, District Judge, Presiding. D.C. No. 4:08–cv–04482–CW.
MEMORANDUM*
**1 Plaintiff's advertising is protected expressive activity. E.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 508–12, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) (plurality opinion). Selling cigarettes isn't, because it doesn't involve conduct with a “significant expressive element.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 701–02, 706, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986); cf. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 550, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001). It doesn't even have “an expressive component.” Talk of the Town v. Dep't of Fin. & Bus. Servs., 343 F.3d 1063, 1069 (9th Cir.2003).
San Francisco Ordinance 194–08 limits where cigarettes may be sold; it doesn't prevent plaintiff from advertising. Even assuming it incidentally restricts plaintiff's advertising in a way that wouldn't be permissible as a direct regulation of advertising, that's not enough. “[E]very civil and criminal [regulation] imposes some conceivable burden on First Amendment protected activities.” Arcara, 478 U.S. at 706, 106 S.Ct. 3172.
Neither does the ordinance have “the inevitable effect of singling out those engaged in expressive activity.” Id. at 704, 707, 106 S.Ct. 3172. Of the three groups “singled out” by the ordinance—pharmacies, smokers and cigarette companies—only the cigarette companies are even arguably engaged in expressive activity.
And even if the ordinance did have the inevitable effect of singling out expressive activity, “a differential burden ... is insufficient by itself to raise First Amendment concerns.” Leathers v. Medlock, 499 U.S. 439, 452, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991). The burden must be “directed at, or present[ ] the danger of suppressing, particular ideas.” Id. at 453, 111 S.Ct. 1438. No such danger is present here. The censorial motive plaintiff attributes to defendants is always present when the government restricts sales of a product. That can't be sufficient. Cf. 44 Liquormart, 517 U.S. at 508–12, 116 S.Ct. 1495; Lorillard, 533 U.S. at 550, 121 S.Ct. 2404.
AFFIRMED.
All Citations
345 Fed.Appx. 276,Footnotes
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36–3.
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