Why We Should Care About Big Tobacco's 1st Amendment Rights

Two words: Mayor Bloomberg

(The Food and Drug Administration)

Back in November of 2010, the Food and Drug Administration unveiled a new series of graphic, mandatory labels for cigarette packs. They were comically grim, featuring blackened lungs, cadavers, and a man blowing smoke through a tracheotomy hole, among other ghoulish images. The visuals were accompanied by text warnings like "Smoking Can Kill You," and a helpful hotline number: 1-800-Quit-Now.

"Every single pack of cigarettes in our country will in effect become a mini billboard that tells the truth about smoking," FDA Commissioner Margarat Hamburg told reporters assembled at a press conference.

The tobacco industry did the one thing any sensible money-making enterprise would do in this situation: They called up their lawyers, and sued to block the new label requirements. This month, they were vindicated by a D.C. federal appeals court, which ruled that the labels infringed on the companies' 1st Amendment rights.

Is it a loss for public health? Perhaps. But it's also a win anyone who's skeptical of the nanny state, and in this instance, that may be the more important issue at stake.

The court's decision is complicated, but it hinges on the principle that companies (like people) have a right to keep silent, same as they have a right to speak. The government can force a cigarette maker to print factual information on their packaging to protect consumers from being deceived or harmed, but that power does not in fact extend to making each and every Marlboro packet into an ad for an anti-smoking campaign. Moreover, the court found that because the FDA did not produce enough evidence that the labels would actually succeed at reducing smoking rates, they didn't pass the technical test for regulations of commercial speech.

Atlantic contributor Garrett Epps has written a vivid critique of the decision, and as I'm neither a lawyer nor a 1st Amendment expert, I won't presume to tangle with him over the legal issues. (I'm fairly sure the Supreme Court will eventually have its own say anyway). Instead, I'd like to ask a broader question: Do we really want our government to be in the business of telling companies to put dead bodies on their packaging? Is it fundamentally fair to a conscript a business into no-holds-barred marketing campaigns against its own product?

The FDA thinks it is (as did Congress, which passed the law requiring the labels). And I can sympathize with their position. Cigarettes are an expensive public health hazard. Banning them is politically impossible, and given the gargantuan black market that would spring up, a terrible idea to begin with. So anti-tobacco advocates have to convince smokers to drop the habit while keeping teens from starting in the first place. And what better way to make them unpopular than to paste disgusting images on their wrappers, just like in Canada and Europe?

But then, why just stop with cigarettes? Melanoma is a problem. We could just make every tanning salon hang a poster of a bald cancer patient in their waiting room. Childhood obesity is an outright epidemic. Perhaps each box of Frosted Flakes should feature a picture of a weeping, overweight 5th grader. If that's too much, Kellogg's could at least give Tony the Tiger some love handles, for realism's sake.

And lord only knows what wonderfully creative grotesqueries Mayor Bloomberg could come up with to slap on the side of New York City's soda cans. A diabetic amputee, perhaps? A giant, rotted molar?

I could keep going. The point is, we buy and enjoy many, many products that are disgracefully bad for our health. And if companies are legally entitled to sell them to us, that means they should be entitled to market them, so long as they're not lying. That's why commercial speech is still considered speech, even if it gets a lower level of protection than individual expression. Allowing labels of the sort the FDA has in mind would leave it with virtually no protection at all.

We don't all have to live by the law of caveat emptor. But there's a difference between making sure consumers have a fair warning before putting something something toxic in their body, and making the product itself look as repellent as possible. One gives a less-than-informed buyer the chance to exercise personal responsibility. The other is manipulation.

As I said, it's very possible this case will go to the Supreme Court, which could give the FDA's labels a thumbs up. If that's the case, we'll have to live with some extremely gross cigarette packages staring back at us from the counter at CVS. But that won't end the issue. It's not hard to imagine state and local governments trying to slap similar labels on the bad-for-us products consumers love. And it will be up to voters to push back.

The government should have to put up its own billboards, thank you very much.