Anti-tobacco Legislation and the First Amendment

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Obama to sign sweeping anti-smoking bill
Legislation will give FDA unprecedented authority to regulate tobacco

WASHINGTON - President Barack Obama is set to sign into law an anti-smoking bill that will give the Food and Drug Administration unprecedented authority to regulate tobacco.

Obama is scheduled to sign the Family Smoking Prevention and Tobacco Control Act during an event Monday in the Rose Garden. The law allows the FDA to reduce nicotine in tobacco products, ban candy flavorings and block labels such "low tar" and "light." Tobacco companies also will be required to cover their cartons with large graphic warnings.

The law won't let the FDA ban nicotine or tobacco outright, but the agency will be able to regulate the contents of tobacco products, make public their ingredients and prohibit marketing campaigns, especially those geared toward children.

Anti-smoking advocates looked forward to the bill after years of attempts to tame an industry so fundamental to the U.S. that carved tobacco leaves adorn some parts of the Capitol.

Opponents from tobacco-growing states like top-producing North Carolina argued that the FDA has proven through a series of food safety failures that it's not up to the job. They also said that instead of unrealistically trying to get smokers to quit or to prevent others from starting, lawmakers should ensure that people have other options, like smokeless tobacco.

As president, George W. Bush opposed the legislation and threatened a veto after it passed the House last year. The Obama administration, by contrast, issued a statement declaring strong support for the measure.

Obama has spoken publicly of his own struggles to quit cigarettes.

My primary concern here is with "the agency will be able to...prohibit marketing campaigns, especially those geared toward children." To me, this sounds like a violation of the first amendment of the constution. I don't expect many people to care very much. People always have rationalizations for why their pet projects aren't actually free speech violations, even though they prohibit speech.

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Type: Discussion • Score: 13 • Views: 9,490 • Replies: 112

Nice to see that you attempt to set up in advance an omnibus argument against anyone who would choose to disagree with you. Mr. Justice Holmes once observed that the first amendment doesn't protect your right to shout fire in a crowded theater. I suspect that those who prohibit certain types of advertising are using the same principle.

But, as i noted, you seem to have decided in advance of any comments that no one will come up with an argument you will accept. So i'm wasting my time, right?

1 Reply

@Setanta,

Setanta wrote:

Nice to see that you attempt to set up in advance an omnibus argument against anyone who would choose to disagree with you. Mr. Justice Holmes once observed that the first amendment doesn't protect your right to shout fire in a crowded theater. I suspect that those who prohibit certain types of advertising are using the same principle.

But, as i noted, you seem to have decided in advance of any comments that no one will come up with an argument you will accept. So i'm wasting my time, right?

It was my suspicion that people whom I would identify as liberals would be least impressed by this issue, and your reponse is consistent with my expectations. Speech that you don't like can't all be identified with yelling "fire" in a crowded theater. When someone yells "fire" in a crowded theater, he is relating false information which can be expected to cause imminent bodily harm to listeners. Smoking advertising may be truthful, and cannot be expected to cause imminent bodily harm to listeners. Perhaps you simply don't have a lot of respect for the idea of freedom of speech. It does not, in fact, mean, "I should be able to say what I want because I'm right."

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setanta already made my point. Those bastards have targeted generations for death by tobacco. It's time they were reigned in.

1 Reply

@edgarblythe,

edgarblythe wrote:

setanta already made my point. Those bastards have targeted generations for death by tobacco. It's time they were reigned in.

And the Constitution???

1 Reply

@Brandon9000,

As i said, you signalled in advance that you wouldn't accept any argument disagreeing with you. Many forms, and in fact most forms, of tobacco advertising were already prohibited by law. I don't recall you starting threads to vent your outrage until you come up with this drivel. Therefore, it is my suspicion that people whom i would identify as conservative would be the least impressed with an argument that there really is no first amendment issue here. It may surprise you to learn that a great many people consider smoking to cause imminent bodily harm. If you think you have a good argument that this is not so, then put your money where your mouth is, and start a class-action law suit on behalf of the "poor" oppressed tobacco companies.

The rest of your feeble response is truly hilarious. I understand freedom of speech quite well, including the notion that although corporations are persons before the law for many purposes, the expression of rights by corporations is not permitted in cases in which it may infringe upon the rights of those who are actual persons as opposed to virtual persons. This has been sustained by the courts in the case of tobacco advertising, and quite a few years ago. It seems that you are the one claiming that "I should be able to say what i want because i am right." At no point have i said that you cannot express your opinion--i'm just saying that your opinion is goofy in proportion as it is uninformed.

The first restrictions on tobacco advertising came in the wake of the Surgeon General's report in 1964, which cited more than 6000 scientific studies linking tobacco to cancer and other debilitating diseases. In 1971, restrictions were placed on tobacco advertising, by Congress--it required health risk warnings. In 1999, in the settlement with state attorneys general, the tobacco companies themselves agreed to end almost all types of tobacco advertising and promotion. Why are you suddenly so outraged? Could it be that there is a Democratic administration in the White House? I suspect so--this is less a case of genuine outrage over a curtailment of free speech (which was already accomplished in 1999) than it is another feeble attempt to suggest that people with whom you disagree ideologically are evil agents of wide-spread oppression. This is an hilarious thin end of the wedge argument.

For whatever else anyone may say of you, Brandon, you never fail to entertain.

1 Reply

@Setanta,

Setanta wrote:

As i said, you signalled in advance that you wouldn't accept any argument disagreeing with you. Many forms, and in fact most forms, of tobacco advertising were already prohibited by law. I don't recall you starting threads to vent your outrage until you come up with this drivel. Therefore, it is my suspicion that people whom i would identify as conservative would be the least impressed with an argument that there really is no first amendment issue here. It may surprise you to learn that a great many people consider smoking to cause imminent bodily harm. If you think you have a good argument that this is not so, then put your money where your mouth is, and start a class-action law suit on behalf of the "poor" oppressed tobacco companies.

The rest of your feeble response is truly hilarious. I understand freedom of speech quite well, including the notion that although corporations are persons before the law for many purposes, the expression of rights by corporations is not permitted in cases in which it may infringe upon the rights of those who are actual persons as opposed to virtual persons. This has been sustained by the courts in the case of tobacco advertising, and quite a few years ago. It seems that you are the one claiming that "I should be able to say what i want because i am right." At no point have i said that you cannot express your opinion--i'm just saying that your opinion is goofy in proportion as it is uninformed.

The first restrictions on tobacco advertising came in the wake of the Surgeon General's report in 1964, which cited more than 6000 scientific studies linking tobacco to cancer and other debilitating diseases. In 1971, restrictions were placed on tobacco advertising, by Congress--it required health risk warnings. In 1999, in the settlement with state attorneys general, the tobacco companies themselves agreed to end almost all types of tobacco advertising and promotion. Why are you suddenly so outraged? Could it be that there is a Democratic administration in the White House? I suspect so--this is less a case of genuine outrage over a curtailment of free speech (which was already accomplished in 1999) than it is another feeble attempt to suggest that people with whom you disagree ideologically are evil agents of wide-spread oppression. This is an hilarious thin end of the wedge argument.

For whatever else anyone may say of you, Brandon, you never fail to entertain.

Apparently every argument descends to the personal immediately. Well, as you yourself point out, previous restrictions on cigarette advertising were voluntary, and therefore not first amendment issues. That's why I'm posting about it now and not previously. Furthermore, cigarette smoking doesn't cause imminent bodily harm. It may or may not cause inevitable bodily harm, but certainly not imminent bodily harm. If I persuade someone to smoke, he isn't going to be seriously physically damaged in the next day or two. Also, I never accused you of trying to limit me in expressing my opinion. Here, you're simply putting words in my mouth. Additionally, need I even say it, my own motives in posting bear no relevance whatever to the veracity of my point, and are not germane to anything.

Real respect for freedom of speech includes respect for the freedom of speech of people whose words one finds repugnant.

1 Reply

@Brandon9000,

I've always been concerned that legislation against advertising violates the first amendment. I think the alcohol business decided to play along in order to avoid other attacks, but I've always thought that if it went to the Supreme Court, these types of ad bans would fail considering that tobacco is a legal product. If you can advertise for perscription drugs, why not tobacco. That said, commercial speech is not as protected as individual speech. I'd have to look to someone with more legal background to fill in the details.

The other part I've always wondered about is the tobacco settlement of a few years ago. My understanding is that if a new cigarette company was to start up and create a product called "cancer sticks" with complete disclosure of the negatives of smoking and no history of distorting the truth, they would still be bound by the restrictions of the tobacco settlement. If this weren't the case, they would be at a significant competitive advantage. Is this right?

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Your argument descended to the level of the personal immediately with your first response to me, Brandon, in which you labelled me a liberal, and suggested that that is sufficient evidence that i am opposed to freedom and the exercise of constitutional rights. Now you want to whine about arguments descending to the level of the personal. Sauce for the goose makes sauce for the gander, Brandon. In fact, i specifically copied the language of your remarks to edit them to form a response to you.

In fact, you don't know what i do or don't find repugnant, so your snotty little admonitory remark is baseless. In fact, Bradon, in 2001, the Supremes ruled on this issue in the Lorillard case, and came to the conclusion that advertising cannot be banned simply on the basis that it will be seen by some children, so long as the advertising is truthful. So they sent the case back to the lower court to tailor a more detailed revision of state law with respect to tobacco advertising (the legislation in question banned outdoor advertising within 1000 of places in which children congregate and included advertising within buildings--i.e., stores--which could be seen from outside, and the court held that restriction to be too broad). The Court also struck down restrictions on how high the advertising must be above the floor, pointing out that even short children look around and take in their environment.

The ruling of the Court in Lorillard v. Reilly will, until something more definitive or a ruling superceding it by the Court comes along, govern what restrictions can and cannot be placed on tobacco advertising. Your Chicken Little routine here is a pointless exercise in phony indignation, Brandon. The sky is not falling, and the conservative Supreme Court is there, protecting you from the evil haters of all freedom that liberals undoubtedly are.

You're a hoot.

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I suspect if the same was targeted against alcohol and beer (which WILL cause immanent bodily damage if DUI), there would be a different reaction from the liberals.

That being said, the Govt should have the authority to regulate the sale and marketing of tobacco products, just as they do with all products (See the FDA). This legislation should also include alcohol, IMO.

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@Brandon9000,

Brandon9000 wrote:

Speech that you don't like can't all be identified with yelling "fire" in a crowded theater. When someone yells "fire" in a crowded theater, he is relating false information which can be expected to cause imminent bodily harm to listeners. Smoking advertising may be truthful, and cannot be expected to cause imminent bodily harm to listeners. Perhaps you simply don't have a lot of respect for the idea of freedom of speech. It does not, in fact, mean, "I should be able to say what I want because I'm right."

Why don't we see advertisements geared to children selling butt plugs and strap ons?

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@chai2,

I believe those items are advertised exclusively in liberal newspapers.

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@chai2,

chai2 wrote:

Brandon9000 wrote:

Speech that you don't like can't all be identified with yelling "fire" in a crowded theater. When someone yells "fire" in a crowded theater, he is relating false information which can be expected to cause imminent bodily harm to listeners. Smoking advertising may be truthful, and cannot be expected to cause imminent bodily harm to listeners. Perhaps you simply don't have a lot of respect for the idea of freedom of speech. It does not, in fact, mean, "I should be able to say what I want because I'm right."

Why don't we see advertisements geared to children selling butt plugs and strap ons?

I doubt such a thing has often come to the point of a court case. Manufacturers of such things have probably not tried much to advertise in mainstream media, and mainstream media would be unlikely to accept. Therefore, it is probably rare for that sort of case to ever get to the point of a first amendment issue. In general, laws against obscenity violate a literal reading of the first amendment. The government should be loath to restrict speech except where it constitutes slander or libel, or where it incites imminent bodily harm to someone.

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Basically, you're stating a general principle, not of existing law, but of your opinion, and further, stating that--once again, in your opinion--the current administration intends to violate your sensibilities about how a constitutional right should be interpreted. You have shown no such outrage about this in the past, which makes your complaint suspect; suspect as likely being a partisan-motivated complaint.

You also, apparently, didn't bother to inform yourself before starting this thread. If you had, you would certainly have read about Lorillard v. Reilly, and you would have realized that your objections have already been addressed by the Supreme Court.

Tempest in a teapot, and as usual, motivated by ideological prejudice rather than any harm actually done.

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Actually, I think this ad by Calvin Klein promotes the use of jeans as an alternative to the condom. The one girl who doesn't have any pants on has been pushed away from the action. And I'm guessing it's very hard to have intercourse with those jeans on.

As far as the OP goes, he who goes forth as a noble knight in shining armor to protect the glorious american society from the evils perpetrated by that hellspawn currently desacrating the White House, methinks it would be interesting to see you make that speech to people who are right now dying of lungcancer.

By the reasoning you have given in this thread, I don't see any reason why you couldn't start advertising for heroin or cocaine either. Or, perhaps even better, softdrugs such as weed. Those are also addictive substances that don't cause immediate bodily harm. What sayest thou, oh valiant defender of constitutional rights? Should we start the printing pressess?

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I don't quite understand your concern here, Brandon. Are you opposed to any restrictions on cigarette advertising, or are you opposed to these restrictions on cigarette advertising?

If the former, then you should be aware that the first amendment doesn't protect commercial speech in the same fashion as it does political speech. The courts have long held that the government has much more leeway to regulate speech in the commercial arena as opposed to the political arena. If the latter, then you'll have to do a better job of explaining what is so unacceptable about the new restrictions.

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@najmelliw,

najmelliw wrote:

And I'm guessing it's very hard to have intercourse with those jeans on.

That sounds like a challenge!

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@najmelliw,

I believe if you had bothered to read my initial post, you would have come to a different conclusion.

So to repeat, I have no issue with the Govt regulating the ads regarding tobacco products. I also believe the Govt should regulate ads on beer and alcohol products.

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@najmelliw,

Quote:

By the reasoning you have given in this thread, I don't see any reason why you couldn't start advertising for heroin or cocaine either. Or, perhaps even better, softdrugs such as weed. Those are also addictive substances that don't cause immediate bodily harm. What sayest thou, oh valiant defender of constitutional rights? Should we start the printing pressess?

The difference is obvious so I hesitate to even point it out to you. But I will cause I feel like typing something right now. Those products are illegal. Thus I would guess that advertising them for sale would quickly bring prosecution for attempted distribution of said products.

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@CoastalRat,

Yes, I know that softdrugs/harddrugs are illegal by law and tobacco isn't. Frankly, I have never understood that hypocrysy, but this is not the time or the place for such a discussion.
What I was trying to point out was that, barring any previous legislation on said substance (ab)use, the logic used by the OP would allow for a similar approach to drugs.

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Anti-tobacco Legislation and the First Amendment

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