13
   

Anti-tobacco Legislation and the First Amendment

 
 
joefromchicago
 
  1  
Reply Mon 22 Jun, 2009 11:32 am
@CoastalRat,
CoastalRat wrote:
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.

Advertising illegal substances isn't prohibited because it would result in prosecution for attempted distribution of those substances, it's prohibited because those illegal substances are illegal. 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.
H2O MAN
 
  -2  
Reply Mon 22 Jun, 2009 11:50 am



PrezBO is counting on tax revenues from Tabasco sales, but he now wants to pass anti-tobacco legislation...

What a ******* moron O Boy has turned out to be Rolling Eyes
0 Replies
 
CoastalRat
 
  1  
Reply Mon 22 Jun, 2009 12:05 pm
@joefromchicago,
Maybe I was not clear. But my point was that it is illegal to advertise those products BECAUSE they are illegal. Since I am no law expert, I was guessing that one could be charged with something if they were to find a way to advertise they had those products for sale. But again, the point was, well, you get it.
0 Replies
 
Robert Gentel
 
  2  
Reply Mon 22 Jun, 2009 12:06 pm
@joefromchicago,
joefromchicago wrote:
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.


As this thread illustrates there is precedent for restricting advertising for a legal substance (the Public Health Cigarette Smoking Act bans radio and TV ads for tobacco) and as you noted in the marijuana thread it is possible for something to be legal while its sale is not. Pot advertising is therefore not necessarily a consequence of legalization and especially not for decriminalization.

But that was a really stupid argument, 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.
H2O MAN
 
  -1  
Reply Mon 22 Jun, 2009 12:14 pm
@Robert Gentel,



Witness a rarity here on A2K...

Robert Gentel wrote:

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.


The application of common sense.

0 Replies
 
kuvasz
 
  3  
Reply Mon 22 Jun, 2009 02:11 pm
@Brandon9000,
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.
Thomas
 
  5  
Reply Mon 22 Jun, 2009 03:54 pm
@Brandon9000,
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.
Thomas
 
  2  
Reply Mon 22 Jun, 2009 04:29 pm
@Thomas,
After reading the whole article, I notice that I exaggerated when I said that the federal courts "have only recently begun to change their positions just a little bit." The following excerpt describes how the Supreme Court currently tests whether a restriction of commercial speech is constitutional.

The authors of Findlaw's Annotated Constitution wrote:
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

Here's the source again

So, the restrictions on marketing cigarettes to children, may or may not pass the first prong of the test, because it's illegal in many states to sell cigarettes to minors.

Even if it clears the first hurdle, though, preventing addictions to nicotine and the public health problems that come with them certainly seems like a substantial government interest. There is a fairly straightforward causal relation between the advertisements and the addictions, and it's hard to think of more narrowly tailored methods to prevent cigarette companies from getting minors hooked on nicotine.

This does not look like a difficult constitutional case to me.
0 Replies
 
Setanta
 
  2  
Reply Mon 22 Jun, 2009 05:18 pm
Thomas, for the current state of law with regard to commercial speech in the specific context of the tobacco companies, look up Lorillard Tobacco Company v. Reilly. When the tobacco companies settled with more than 40 states' attorneys general, they agreed to voluntary restrictions on their advertising and promotional activities. Subsequently, Massachusetts wrote legislation to cover point of sale advertising (in the stores where tobacco is sold), the scope of outdoor advertising, and several other areas of tobacco advertising not covered in the voluntary agreement with the attorneys general. Lorillard Tobacco Company went to court to have the Massachusetts law declared void. The Supremes heard this one in 2001.
Thomas
 
  1  
Reply Mon 22 Jun, 2009 05:38 pm
@Setanta,
Hm .... That case seems to support Brandon, and suggests that a ban on advertisements targeting children might be a closer Supreme Court decision than I thought.
0 Replies
 
Brandon9000
 
  1  
Reply Mon 22 Jun, 2009 05:41 pm
@Setanta,
Setanta wrote:

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.

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.
Brandon9000
 
  1  
Reply Mon 22 Jun, 2009 05:44 pm
@joefromchicago,
joefromchicago wrote:

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.

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.
hawkeye10
 
  -1  
Reply Mon 22 Jun, 2009 05:49 pm
The government should not be able to impede the conduct of a legal business. They are trying to make tobacco practically impossible to get without making it illegal, because they want to keep people away from tobacco with out running into the problems experienced with alcohol prohibition. Shame on them, and it will not work anyways. We are already at the point where consumers and manufactures should elect to avoid the regulated market place, and move to the black market. And they will in short order.
0 Replies
 
Brandon9000
 
  1  
Reply Mon 22 Jun, 2009 05:51 pm
@kuvasz,
kuvasz wrote:

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.

Your personal reflections about me are irrelevant to the truth or falsehood of my assertions. A proposition cannot be disproven by making comments about its orgin. Your actual argument is easily disposed of as follows. 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.
Brandon9000
 
  1  
Reply Mon 22 Jun, 2009 05:54 pm
@Thomas,
Thomas wrote:

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.

At least this is a reasonable and relevant argument. However, I have doubts about precedents which are in conflict with clear statements in the Constitution. "Shall make no law abridging...freedom of speech" is pretty clear. The document must be presumed to mean things it says very clearly.
hawkeye10
 
  0  
Reply Mon 22 Jun, 2009 06:03 pm
@Brandon9000,
Quote:
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.


If tobacco is dangerous then Government has the remedy of making the sale of the product illegal. It does not have the right to restrict the free speech of the corporations that make the product with the argument that the product is dangerous. Restricting free speech is not the remedy allowed for the problem, regulating the marketplace is.
0 Replies
 
Setanta
 
  1  
Reply Mon 22 Jun, 2009 06:06 pm
@Brandon9000,
Brandon9000 wrote:
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.


That opinion is not considered by the courts to extend to corporations in the same manner in which it extends to individuals. In that this is true (whether you like it or not), you are offering an opinion rather than a statement of fact, and you can reasonably be challenged on the matter.

Quote:
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.


That you have a partisan motivation is very relevant, in that the rest of this particular statement which i have quoted is false. The issue may not have reached above the horizon of your awareness, and i suspect that is because it was not an issue involving someone whom you despise, to wit, Mr. Obama. But it has arisen, and it arose in 2001 when the Supremes issued a ruling in Lorillard v. Reilly, and that is before this site existed. Yet, at no time in the history of this site have you come to play champion of free speech on behalf of big tobacco until now--and that timing makes your motive suspect.

The first prohibitions on cigarette advertising came in 1971, and they were not voluntary. You'd know that if you had bothered to inform yourself before shooting your mouth off.

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


Say whatever you like--if it is at odds with the facts, i'll be more than happy to point that out to you.

Quote:
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.


Policy of the Food and Drug Administration may have the force of law, but do not themselves constitute law. If big tobacco is offended by these measures, i have not the least doubt that they will bring suit in Federal court (their pockets are deep, and they displayed a willingness to relentlessly go after any challenges in the past). At that time, courts will decide if any part of the new FDA policy violates the ruling in Lorillard v. Reilly. Courts will determine that, not you, Brandon.

Tempest in a teapot, and i have not the least doubt motivated by your contempt for the current administration. Wrapping yourself in the flag and singing "God Bless America" while waving a copy of the constitution doesn't fool anyone, Brandon.
DrewDad
 
  3  
Reply Mon 22 Jun, 2009 06:07 pm
@Brandon9000,
Brandon9000 wrote:
The fact that cigarettes do harm doesn't permit violations of the Constitution to deal with the problem.

You have not provided any evidence for your assertion that the proposed regulations violate the Constitution.
joefromchicago
 
  2  
Reply Mon 22 Jun, 2009 06:13 pm
@Brandon9000,
Brandon9000 wrote:
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.

If you are truly a free speech absolutist, I'm not sure why you'd carve out exceptions for defamation or "fighting words." After all, if the state can have a compelling interest in preventing me from saying "let's beat the crap outta' Brandon!" 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?
hawkeye10
 
  0  
Reply Mon 22 Jun, 2009 06:32 pm
@joefromchicago,
Quote:
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?


Nicely ignoring that there is zero evidence that tobacco is marketed to kids. It once was, so your argument MIGHT have been valid at one point, but it is not now. This current move to regulation is being done on the back of a lie, which you should object to. The "ends justifies the means" is the only possible honest rational for the current move, and if you support it then you lack integrity.
 

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