Anti-tobacco Legislation and the First Amendment

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.

I've pointed out elsewhere that, if marijuana were legalized, the government couldn't prohibit advertisements for marijuana. That argument, I recall, was met with disbelief, which is one reason why I don't participate in marijuana discussions any more.

I now support the legalization, including advertising, of marijuana now more than continuing the "war on drugs".
Just tax it enough to cover societal costs (including anti-addiction advertising) and I'm fine with it.

And the Constitution???

While commercial speech is entitled to First Amendment protection, the Court has clearly held that it is not wholly undifferentiable from other forms of expression; it has remarked on the commonsense differences between speech that does no more than propose a commercial transaction and other varieties. 17 The Court has developed a four-pronged test to measure the validity of restraints upon commercial expression.

Under the first prong of the test as originally formulated, certain commercial speech is not entitled to protection; the informational function of advertising is the First Amendment concern and if it does not accurately inform the public about lawful activity, it can be suppressed. 18

Second, if the speech is protected, the interest of the government in regulating and limiting it must be assessed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. 19

Third, the restriction cannot be sustained if it provides only ineffective or remote support for the asserted purpose. 20 Instead, the regulation must ''directly advance'' the governmental interest. The Court resolves this issue with reference to aggregate effects, and does not limit its consideration to effects on the challenging litigant. Supp.31

Fourth, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot survive. 21 The Court has rejected the idea that a ''least restrictive means'' test is required. Instead, what is now required is a ''reasonable fit'' between means and ends, with the means ''narrowly tailored to achieve the desired objective.'' 22

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.

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.

It may well be true that people are considered equal under the law but that hardly translates into all ideas being equal in the court of public opinion.

Your's certainly are inferior to Setanta's. They are poorly thought out, with little basis in jurisprudence and unsupported by the facts in this issue. You continue to embarrass yourself with such weakminded posts. You ought to consider purchasing some sort of personal interlocutor who can weed out the waste product your brain pumps out like raw sewage before you express yourself in written word, because few folks seem to consider you the Brainiac you do.

BTW just to give you some perspective on why I criticize your remarks........

Tobacco use is the leading preventable cause of death in the United States, causing more than 400,000 premature deaths annually. That is equivalent to wiping out the population of the city of Oakland every year.

But, while you raise a First Amendment outcry about curbing the advertisment of a substance that kills hundreds of thousands of Americans each year, you also supported the Bush Aministration's actions in the War on Terror that circumvented constitutional protections because they said it would prevent a mushroom cloud over an American city, say Oakland California.

So, its not simply that you do not have an argument, but that you are in general inconsistant in your outrage. That does not make you a bad or stupid person, but it does make you a person who ought not to be listen to.

And until you start displaying at least a modicum of intellectual integrity you will be attacked consistantly for your inconsistancy of thought.

Brandon9000 wrote:

And the Constitution???

Tobacco advertisements are an example of commercial speech. It seems that for the lion's share of American history, Federal courts have not held the First Amendment to protect commercial speech at all, and has only recently begun to change their position just a little bit. For a more extensive discussion, see the Annotated Constitution at FindLaw.com under "commercial speech".

http://caselaw.lp.findlaw.com/data/constitution/amendment01/17.html#2

The standard disclaimer applies: I am not a lawyer, this is not legal advice, yaddayaddayada. That said, the answer to your question, which I'm sure you're not going to like, is this: The new restrictions on tobacco advertisements will not violate the cigarette companies' free speech rights, because these advertisements involve no rights for Congress to violate.

The fact that cigarettes do harm doesn't permit violations of the Constitution to deal with the problem. The Constitution doesn't say that freedom of speech cannot be abridged except when the speech is a bad idea. It simply says that it cannot be abridged. Speech which is damaging and repugnant to you is protected too. The medical statistics have no bearing.

Yes, my general principle and opinion is that the Constitution means what it says. It says that Congress cannot make any law abridging freedom of speech.

Whether my complaint is "suspect" or not is irrelevant to whether it's correct, however, I haven't mentioned this issue before because it's never arisen before. The prohibition on cigarette advertising has been voluntarily up until now.

I could say more about that, but won't bother unless something more arises, since I wish to be concise.

Finally, my feelings about the first amendment and cigarette advertising may have been addressed by the Supreme Court before, but not regarding this particular law since it has only now been passed. Indeed, by the standard you refer to, I would think that the FDA cannot have blanket power to restrict such advertising and that this law is in conflict with those precedents.

The fact that cigarettes do harm doesn't permit violations of the Constitution to deal with the problem.

I object to any restriction on speech unless the speech constitutes libel, or slander, or incites imminent violence. Your comment about commercial speech is at least on topic. However, I see nothing in the amendment which makes an exception of commercial speech and I don't really care whether some VIPs said that the amendment doesn't mean what it clearly says.

then it can also have an interest in preventing me from saying "Hey kids! Buy my candy-flavored cigarettes! It smokes like gumballs!" If the first amendment really prevents congress from placing any limits on speech, then how do you justify restricting the former but not the latter?