Instead the Court looks to see if the restriction does not sweep more broadly than necessary. Tobacco advertising legislation will not be a total ban and the tobacco industry will still have many alternative channels to communicate with its adult customers. Adults will still receive information on price, quality, comparative product features and any other information to help them make an informed decision on tobacco products. Even if they were limited to communicating in tombstone format, the government would not have prohibited the flow of information. Furthermore, other less restrictive alternatives, such as price increases and access restrictions, have been tried and have not solved the problem of teen tobacco use.
Statutes restricting political speech receive the strictest scrutiny from the courts.
Commercial speech receives much less protection. No such problem would arise under the proposed tobacco advertising statute if tombstone advertising restrictions were enacted. 44 Liquormart does not change this analysis. In 44 Liquormart, Rhode Island placed a ban in all media on advertising providing price information on liquor products so as to drive down consumption. The Court saw the Rhode Island statute as a paternalistic complete ban in all media on the free flow of truthful information.