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R.J. REYNOLDS TOBACCO CO. v. SHEWRY

No. 03-16535.

384 F.3d 1126 (2004)

R.J. REYNOLDS TOBACCO COMPANY; Lorillard Tobacco Company; R.J. Reynolds Smoke Shop, Inc., Plaintiffs-Appellants, v. Sandra SHEWRY, Director of the California Department of Health Services; Dileep G. Bal, Acting Chief of the Tobacco Control Section of the California Department of Health Services; State of California, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed September 28, 2004.

Attorney(s) appearing for the Case

H. Joseph Escher III, Howard Rice Nemerovski Canady Falk & Rabkin, San Francisco, CA, for plaintiffs-appellants R.J. Reynolds Tobacco Company and R.J. Reynolds Smoke Shop, Inc.

Shannon L. Spangler and M. Kevin Underhill, Shook, Hardy & Bacon, San Francisco, CA, for plaintiff-appellant Lorillard Tobacco Company.

Robert M. O'Neil and J. Joshua Wheeler, Charlottesville, VA, for amici curiae Thomas Jefferson Center for the Protection of Free Expression and the Media Institute, in support of the plaintiffs-appellants.

Daniel J. Popeo and Richard A. Samp, Washington, DC, for amici curiae Washington Legal Foundation, in support of the plaintiffs-appellants.

Karen Leaf, Deputy Attorney General, Sacramento, CA, for the defendants-appellees.

Deborah B. Caplan and Robert S. McWhorter, Olson, Hagel & Fishburn, LLP, Sacramento, CA, for amici curiae American Cancer Society, California Division, Inc., American Heart Association, Western States Affiliates, and American Lung Association of California, in support of the defendants-appellees.

Before B. FLETCHER, TROTT and FISHER, Circuit Judges.

Opinion by Judge Fisher; Dissent by Judge Trott

FISHER, Circuit Judge.

We deal here with a novel First Amendment claim. The appellants, three tobacco companies, claim that California violated their First Amendment rights by imposing a surtax on cigarettes and then using some of the proceeds of that surtax to pay for advertisements that criticize the tobacco industry. The tobacco companies argue that this is a case of compelled subsidization of speech prohibited...

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