Philip Morris USA, Inc. v. City of San Francisco

MEMORANDUM *

Plaintiffs 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 plaintiffs 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.…