This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Phantom Fireworks, Inc.,


Filed December 15, 1998


Toussaint, Chief Judge

Washington County District Court

File No. K7973286

Hubert H. Humphrey, III, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)

David K. Nightingale, Neal J. Shapiro, Bernick and Lifson, P.A., 1200 The Colonnade, 5500 Wayzata Boulevard, Minneapolis, MN 55416 (for appellant)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge and Willis, Judge.


TOUSSAINT, Chief Judge

Appellant Phantom Fireworks, Inc. (Phantom) challenges the denial of its motion to dismiss the charge of advertising fireworks. Phantom argues that Minn. Stat. § 624.21 (1996), which prohibits advertising fireworks, violates the First Amendment to the United States Constitution. Because the state did not meet its burden of providing sufficient evidence in the record to support the constitutionality of the statute, we reverse.


Phantom argues that Minn. Stat. § 624.21 violates the First Amendment to the United States Constitution. The interpretation of statutes is a question of law that this court reviews de novo. In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993). Accordingly, the reviewing court is not bound by the lower court's conclusions. Id.

Minn. Stat. § 624.21 (1996) provides in part that:

Except as otherwise provided in sections 624.20 to 624.25, it shall be unlawful for any person to * * * advertise * * * fireworks. This section shall not be construed to prohibit the possession, use, or explosion of fireworks by an engineer licensed pursuant to sections 326.02 and 326.03 or a person under the engineer's direct supervision when undertaking acoustical testing; or sales at wholesale to those persons holding valid permits for a fireworks display from a governmental subdivision of the state; or sales outside the state or sales to licensed professional engineers for acoustical testing purposes only.

Generally, statutes "enjoy a presumption of constitutionality which remains in force until the contrary is established beyond a reasonable doubt." State by Humphrey v. Casino Mktg. Group, Inc., 491 N.W.2d 882, 885 (Minn. 1992). But when a statute restricts First Amendment rights it does not bear the usual presumption of constitutionality normally accorded to legislative enactment's." Id. (quotations omitted). This principle is equally compelling when commercial speech is affected. Id. There is no doubt that "commercial speech" is entitled to First Amendment protection, albeit somewhat less extensive protection than that afforded "noncommercial speech." Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 637, 105 S. Ct. 2265, 2274 (1985).

The government is free to prevent the dissemination of commercial speech that is false, deceptive, misleading, or that proposes an illegal transaction. Id. at 638, 105 S. Ct. at 2275. But if the commercial speech is not false or deceptive and does not concern unlawful activities, it may be restricted only in the service of a substantial governmental interest, and only through means which directly advance that interest. Central Hudson Gas & Elec., Co., v. Public Serv. Comm'n of New York, 447 U.S. 557, 566, 100 S. Ct. 2343, 2351. Central Hudson has identified several factors that courts should consider in determining whether a regulation of commercial speech survives First Amendment scrutiny:

At the outset, [the court] must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, [the court should determine] whether the asserted governmental interest is substantial. If both inquiries yield positive answers, [the court] must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Id. The party seeking to uphold a restriction on commercial speech carries the burden of justifying it. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71, n.20, 103 S. Ct. 2875, 2883, n.20 (1985). Thus, the burden is on the state to justify the restriction and to demonstrate that the restriction vindicates that interest. Zauderer, 471 U.S. at 647, 105 S. Ct. at 2280.

Both parties and the district court agree that the catalog sent by Phantom is commercial speech entitled to First Amendment protection. They also agree that Central Hudson was the correct test to apply in determining the validity of the statute.

In upholding the statute, the district court applied the four factors of Central Hudson and found that (1) Phantom's catalog concerned a lawful activity; (2) the state's asserted interest of preventing fireworks-related injuries was substantial; (3) the statute directly advanced the state's interest; and (4) the "fit" between the restriction and the state's interest was reasonable.

This court must now look to the facts in the record, apply the Central Hudson test and determine whether Minn. Stat. § 624.21 violates the First Amendment to the United States Constitution.


The first Central Hudson factor to consider in evaluating the constitutionality of the statute is whether the prohibited speech concerns lawful activity. The state concedes "that the catalogs do not concern unlawful activity and are not misleading within the meaning of the first [factor] of the Central Hudson test." Phantom argues that the state's concession prohibits it from restricting all truthful and non-misleading advertising.

This argument is unfounded. The state may conditionally restrict lawful and non-misleading activities, including commercial speech. Here, the catalog concerns lawful activity because it is not unlawful to sell fireworks outside the State of Minnesota, nor is it unlawful for Minnesota citizens to purchase fireworks outside Minnesota. Therefore, the first Central Hudson factor is satisfied.


The second Central Hudson factor the court must consider is whether the state's asserted interests are substantial. The state claims that its interest in prohibiting the advertisement of fireworks in Minnesota "is to reduce the use of fireworks and hence the number of fireworks-related injuries." The district court determined that this was a substantial interest because common sense dictates that fireworks are dangerous and each year, particularly around the Fourth of July, the news is filled with stories about people, often children, who are injured by fireworks.

Phantom argues that it is not enough for the state to merely assert that fireworks are dangerous to its citizens, rather it must prove that fact to the court. In support of its argument, Phantom cites Valley Broad. Co. v. United States, 107 F.3d 1328 (9th Cir. 1997), cert. denied, 118 S. Ct. 1050 (1998) (stating the burden of the government was not met by mere conjecture, rather it must demonstrate that the harm claimed is real). Although Phantom's argument is somewhat persuasive, its reliance upon Valley Broadcasting is misplaced. The state's burden does not apply to this factor of the Central Hudson test. The burden applies to the third and fourth factors. See Edenfield v. Fane, 507 U.S. 761, 770, 113 S. Ct. 1792, 1800 (1993) (the burden of justifying a restriction is not satisfied by mere speculation or conjecture; rather, a governmental body must demonstrate that the harms it recites are real and the restriction will in fact alleviate them to a material degree). Consistent with decisions of the United States Supreme Court, the state may merely assert a substantial interest. It does not have to demonstrate that the asserted interest is substantial. We believe reducing the number of fireworks-related injuries is a substantial interest, and therefore, the second factor of Central Hudson has also been satisfied.


Since the first two Central Hudson factors have yielded positive answers, the court must next determine whether the statute directly advances the state's asserted interest. Central Hudson, 447 U.S. at 566, 100 S. Ct. at 2351. The restriction "may not be sustained if it provides only ineffective or remote support for the government's purpose." Id. at 564, 100 S. Ct. at 2350. Thus, it is here that the state must demonstrate that the asserted harms are real and that the restriction will alleviate them to a material degree. Edenfield, 507 U.S. at 770-71, 113 S. Ct. at 1800.

The district court held that the ban on advertisements of fireworks directly advances the government's interest because "advertising increases sales." Furthermore, the district court found that the prohibition makes it far less likely that a Minnesota resident will travel to Wisconsin to purchase fireworks and bring them back into Minnesota. The state argues that the statute directly advances its interest because Minnesotans can travel to neighboring states and transport illegal fireworks back into Minnesota and the advertising ban is designed to decrease demand for illegal fireworks. Phantom argues that the state has offered no proof to substantiate its claims of the danger of fireworks and that this danger is not self-evident because of extensive federal regulations of fireworks.

United States Supreme Court decisions are replete with cases in which restrictions upon commercial speech were struck down where no evidence was offered. See 44 Liquormart, Inc., v. Rhode Island, 517 U.S. 484, 505, 116 S. Ct. 1495, 1509 (1996) (Rhode Island presented no evidence to suggest that its speech prohibition would significantly reduce market-wide consumption of alcohol); Rubin v. Coors Brewing Co., 514 U.S. 476, 490, 115 S. Ct. 1585, 1593 (1995) (government did not meet its burden when it pointed to current developments in the consumer market and urged the court to use its common sense and turn to history as a guide); Edenfield, 507 U.S. at 771, 113 S. Ct. at 1800 (the board presented no studies and the record did not disclose any anecdotal evidence that validated the board's suppositions); Zauderer, 471 U.S. at 648, 105 S. Ct. at 2280 (the state cited no evidence or authority of any kind for its contentions). Cf. Florida Bar v. Went For It, Inc., 515, U.S. 618, 115 S. Ct. 2371 (1995) (bar's submission of a 106-page summary of 2-year study of lawyer advertising and solicitation sufficient to satisfy its burden).

Although the state included in the appendix to it's brief, statistics from the Minnesota State Fire Marshal Division regarding fireworks injuries these statistics are not part of the record because they were not offered to the district court. The state has merely speculated and conjectured that its ban on advertising the sale of fireworks advances its interest in preventing fireworks-related injuries. It offered no evidence to the district court that this advertising ban advances their asserted interest of reducing fireworks-related injuries. It submitted no affidavits, reports, or studies with its memorandum to assist in meeting its burden. This is the type of situation the United State Supreme Court sought to prevent in Edenfield. The state, however, has failed to demonstrate that the advertising ban advances that interest. Thus, the third Central Hudson factor has not been satisfied.


The final factor of the Central Hudson test requires the court to determine whether the restriction is more extensive than necessary to serve the asserted interest. Central Hudson 447 U.S. at 566, 100 S. Ct. at 2351. The least restrictive means test does not apply. Went For It, Inc., 515 U.S. at 636-37, 115 S. Ct. at 2381. There must be "a fit between the restriction and the government interest that is not necessarily perfect, but reasonable." United States v. Edge Broad. Co., 509 U.S. 418, 431, 113 S. Ct. 2696, 2705 (1993). The state also has the burden of proving this factor.

The district court held that the fit between the statute and the state's interest was reasonable because fireworks are illegal in Minnesota except for a few regulated exceptions. The state argues that the restriction was reasonable because it is not restricting the defendant's right to conduct legal business transactions in Minnesota. Phantom argues that the restriction is far broader than necessary to protect Minnesotans and that there are alternative methods to accomplish the state's interest.

In several United States Supreme Court decisions, restrictions on commercial speech were struck down because the state, although it offered expert testimony and other evidence, failed to satisfy its burden of proof. See 44 Liquormart, Inc., 517 U.S. at 507, 116 S. Ct. at 1510 (the state presented expert testimony, but it was not sufficient to satisfy its burden of demonstrating that the restriction was not more extensive than necessary to serve its asserted interest). However, where no evidence is offered, the state has failed to demonstrate that a restriction is no more extensive than necessary. See Central Hudson, 447 U.S. at 569-70, 100 S. Ct. at 2353 (state offered no authoritative findings).

Again, the state has failed to present any affidavits, studies, reports, or statistics to support its burden of demonstrating that this advertising ban is a reasonable fit with its interest. The state must do more than speculate or conjecture. Thus, the fourth Central Hudson factor has not been satisfied.

Because there is insufficient evidence in the record to support the constitutionality of the statute, we reverse.