Does Cigarette Marketing Count as Free Speech?

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Dispatch from First-Amendment Fantasyland: The D.C. Circuit Court dismisses Congress's anti-smoking warning labels as "ideology."

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Historians of free expression will one day write that early 21st century America was a place where the Supreme Court held that schools could punish kids who make a dumb joke that some humorless prig might think advocated drug use, but that tobacco companies could not be stopped from marketing their products near schools, and where a federal court decided that the federal government could not require cigarette companies to give "inflammatory" warnings that cigarettes kill.

In other words, free speech has taken on a strange shape in recent years.

These reflections are sparked by the decision of the District of Columbia Circuit Court in R.J. Reynolds Tobacco Co. v. Food and Drug Administration. By a vote of 2-1, the Court invalidated an FDA regulation requiring color photographs and text warnings on each pack of cigarettes sold in the U.S. The regulations were issued at the direction of Congress, which, in the Family Smoking Prevention and Tobacco Control Act of 2009, directed the agency to "require color graphics depicting the negative health consequences of smoking" to accompany text warnings such as TOBACCO SMOKING CAN HARM YOUR CHILDREN and SMOKING IS ADDICTIVE. The FDA complied, promulgating a series of images that companies must display prominently on each pack.

The cigarette companies rushed to court, claiming a gross violation of their First Amendment rights. They concede that the government can require some kind of warning; but not these, because -- well -- they might be effective. "FDA is communicating an ideological message, a point of view on how people should live their lives: that the risks from smoking outweigh the pleasure that smokers derive from it, and that smokers make bad personal decisions, and should stop smoking," the companies' brief complained. In the new world of the First Amendment, the claim that smoking is good is an "ideology," and government attempts to combat this public-health scourge are a kind of politically correct liberal propaganda.

Two judges of the court bought the argument. They treated the government's "subjective -- and perhaps even ideological -- view that consumers should reject this otherwise legal, but disfavored, product" as if it were a federal mandate to preach about politics or religion. Examining the legislation carefully, they rejected it because, in essence, the government could not prove that it would work. This level of inquiry is called, in constitutional law, "strict scrutiny," and is reserved for the most intrusive restrictions on speech, such as laws forbidding speakers to discuss politics or advocate one point of view.

The majority denies they are doing this. They claim that their holding is well within the Court's precedents on commercial speech, which mandate a less demanding test. But the dissent, by Judge Judith W. Rogers, points out that the proper level of scrutiny allows the government to rely on experience and common sense. Other countries require such warnings, and some have seen declines in smoking; but no study can show exactly how much the warnings reduce smoking, because those requirements are usually teamed with other anti-smoking measures like higher taxes.

The majority claims to be rejecting only these specific images -- of a man smoking a cigarette through a tracheotomy tube, or a baby wreathed in smoke -- but their hostility to the entire anti-smoking enterprise is ill concealed: "We are skeptical that the government can assert a substantial interest in discouraging consumers from purchasing a lawful product, even one that  has been conclusively linked to adverse health consequences," they sniff. If there is no such "substantial interest," of course, then no government warnings can be required.

What is terrifying is not just the radical nature of the statement: that government can do nothing to combat the single greatest public health threat of our time. The hidden message of the opinion -- a message correctly deduced from much of the Roberts Court's First Amendment jurisprudence -- is that the Constitution requires us to live in a make-believe world, where, for example, gross imbalances of wealth have no effect on political campaigns, and "smoking isn't addictive" is as protected as "I pledge allegiance to the flag."

I yield to no one in my devotion to free speech. But a legal system that can't differentiate between political opinion and the sale of cigarettes has forfeited any claim to relevance to the nation it supposedly serves.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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