Smoking is probably also more dangerous than a beating with actual sticks and stones, but Ginsburg is too subtle to tell us that. It's tough to make that sympathetic. Tobacco companies spend millions to addict new smokers, the same way gun companies spend millions to hook new killers. But so long as it's legal to smoke and kill, they have the right to advertise. Really, the court is simply deciding how effective they're going to let the ads for lethal, legal, products be.
Advertising is legal.
A good deal of wrangling about the legislative history of the text ensues. Porter then concedes to Breyer and Kennedy that Massachusetts could ban all smoking and cigarette ads without violating the pre-emption statute. Four justices' jaws hit the bench. Barbara Underwood, the acting solicitor general, is given 10 minutes to support Massachusetts. With a minute before the buzzer, the booming, cartilage-crushing voice of Clarence Thomas rings out.