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Anti-tobacco Legislation and the First Amendment

 
 
joefromchicago
 
  4  
Reply Mon 22 Jun, 2009 07:05 pm
@hawkeye10,
hawkeye10 wrote:
Nicely ignoring that there is zero evidence that tobacco is marketed to kids.

So what? Whether cigarette makers have ever targeted their products at kids is entirely irrelevant to the constitutional issue. But thanks anyway for attempting to throw that red herring into the discussion. "A" for effort -- "D" for execution.
0 Replies
 
Thomas
 
  2  
Reply Mon 22 Jun, 2009 07:24 pm
@Brandon9000,
Brandon9000 wrote:
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.

But to America's founding generation, it evidently wasn't so clear that the document said what you interpret it to say. Let's turn over the microphone to Joseph Story and his Commentaries on the Constitution, an authority routinely consulted by the Originalists on the Supreme Court:

Joseph Story wrote:
"Congress shall make no law abridging the freedom of speech, or of the press." That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. [...] [T]he language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. It is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends. (emphasis added -- T.

Source

That's a much narrower right than the one you're interpreting into the constitution. And Story's take is not a fluke. Just read The Founders' Constitution under Amendment I (Speech and Press). You will find no indication that the founders' usage of the term encompassed anything other than political speech: speech about government, the people running the government, or the people campaigning for public office.
Thomas
 
  1  
Reply Mon 22 Jun, 2009 07:40 pm
@Thomas,
Unfortunately, my copy of Lawrence Friedman's History of American Law is in hiding. That way I cannot check something I remember reading there: That before the Supreme Court began to strike down state law during its Lochner era (ca 1890-1937), states regulated businesses in all kinds of ways, including their advertisements. And that these regulations have never been struck down under these states' bills of rights. "Freedom of speech" just didn't apply to non-political, commercial speech until a generation or two ago.

I think joefromchicago has a copy of Friedman. Maybe he remembers the passage I'm paraphrasing, and can look it up for me.
hawkeye10
 
  1  
Reply Mon 22 Jun, 2009 07:50 pm
Quote:
Commercial speech, usually in the form of advertising, enjoys some First Amendment protection, but not to the same degree as that which is given to noncommercial forms of expression. Generally, the First Amendment protects commercial speech that is not false or misleading and that does not advertise illegal or harmful activity. Commercial speech may be restricted only to further a substantial government interest and only if the restriction actually furthers that interest. In Central Hudson Gas & Electric Co. v. Public Service Commission, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980), the U.S. Supreme Court

Read more: http://law.jrank.org/pages/7020/Freedom-Speech-Commercial-Speech.html#ixzz0JDIKcyUb&C

http://law.jrank.org/pages/7020/Freedom-Speech-Commercial-Speech.html

if marketing to kids is not a problem then adding a government regulatory ability does not further any interest.
Thomas
 
  1  
Reply Mon 22 Jun, 2009 08:08 pm
@hawkeye10,
If.
hawkeye10
 
  1  
Reply Mon 22 Jun, 2009 08:34 pm
@Thomas,
Quote:
For Immediate Release
December 4, 2006 Contact: Nicole Yazdanseta 202.296.5469

New Study Finds Tobacco Marketing More Than Doubles Odds of Children Smoking, Shows Need for Congress to Grant FDA Authority Over Tobacco

Statement by Matthew L. Myers, President Campaign for Tobacco-Free Kids

Washington, DC - A new study published today in the December issue of the peer-reviewed journal Archives of Pediatrics and Adolescent Medicine provides powerful new evidence that tobacco marketing influences kids to smoke. The study finds that exposure to tobacco marketing, which includes advertising, promotions and cigarette samples, and to pro-tobacco depictions in films, television, and videos more than doubles the odds that children under 18 will become tobacco users. This comprehensive study underscores the need for Congress to enact long-overdue legislation granting the U.S. Food and Drug Administration (FDA) authority over tobacco products, including the authority to crack down on marketing that impacts kids.

http://www.tobaccofreekids.org/Script/DisplayPressRelease.php3?Display=957

ads in places that kids would see was mostly eliminated long ago. There are no promotions that target kids. I don't think that cig companies even do samples any more. Smoking in popular culture is not a marketing effort thus is is not commercial speech, thus it can not be used as a justification to regulate cig co commercial speech.
Quote:
Specifically with regard to youth-oriented marketing, this legislation would require the FDA to ban all remaining outdoor advertising within 1,000 feet of schools and playgrounds; ban all remaining tobacco brand sponsorship of sports and entertainment events still allowed under the 1998 state tobacco settlement; ban free samples and the sale of cigarettes in packages that contain fewer than 20 cigarettes; limit all remaining outdoor and point-of-sale tobacco advertising to black-and-white text only; limit tobacco advertising in publications with significant teen readership to black-and-white text only; and ban free giveaways of non-tobacco items with the purchase of a tobacco product or in exchange for coupons of proof of purchase. The FDA would also have authority to further restrict tobacco marketing that influences children to use tobacco or misleads consumers.



so the government makes a deal with tobacco companies where they extract hundreds of billions of dollars from the companies, and then ten years latter go back on their word??!!. Another lesson of the risk of trusting our government is not needed at this time, thank you very much.

No coupons for free smokes keeps cigs away from kids? Unless the claim is that the coupons are traded in for cig's by kids the claim in nonsense.

Making sure that point of sale ads are not in color keeps cigs from being marketed to kids?? How?? I claim that the effort is aimed at getting to the point were cigs can not be seen in the public space, they must be under the counter and the store is not allowed to tell anyone that they are for sale. If the government thinks that such means are needed to protect the public then surely they need to out law the fuckers.

In truth the kids, our fear for the safety of our kids, is yet again being used to stomp over individual rights.
0 Replies
 
hawkeye10
 
  1  
Reply Mon 22 Jun, 2009 09:01 pm
Quote:
Health Groups Slam Tobacco Marketing to Women
Attempts to make smoking more feminine, fashionable should be curbed, they say
Posted February 18, 2009

WEDNESDAY, Feb. 18 (HealthDay News) -- New tobacco company marketing campaigns that target women and girls are the most aggressive in more than a decade, a new report concludes.

That marketing needs to be curbed by giving the U.S. Food and Drug Administration authority over tobacco products, according to the report, released Wednesday by a coalition of major U.S. public health organizations.


Campaigns launched in recent years by the nation's two largest tobacco companies -- Philip Morris USA and R.J. Reynolds -- depict cigarette smoking as feminine and fashionable rather than the harmful and deadly addiction it really is, according to Deadly in Pink: Big Tobacco Steps Up Its Targeting of Women and Girls

http://health.usnews.com/articles/health/healthday/2009/02/18/health-groups-slam-tobacco-marketing-to-women.html

Oh my God, this is terrible. A company is trying to get people to buy their legally producted product by standard marketing methods. If the stuff is poison then outlaw the fuckers, otherwise shut up and sit down.

"women and girls". this is a trip, so I get kinda get the knee jerk reaction to protect kids (girls), but we also need to protect women do we.....I thought we we supposed to be done with treating women as children! that was one of the big aims of feminism, the whole ending of the paternalistic culture that acted like women are children. Guess not.
0 Replies
 
hawkeye10
 
  1  
Reply Mon 22 Jun, 2009 09:09 pm
Quote:
This study refutes the tobacco industry's claim that increases in association between exposure and tobacco use is because users attend to marketing more than nonusers. Moreover, recent studies showed no decline in effect indicating that the 1998 settlement has been ineffective in restricting youth exposure. The authors believe that the tobacco industry has strategically evaded the restrictions of the settlement. For example, tobacco use in current movies is now comparable to tobacco use in movies from the 1950s.

http://www.rwjf.org/pr/product.jsp?id=15394

Tobacco Companies make movies then....I was not aware.

They don't?? Then WTF are you talking about? An explanation is called for, because the logic as ALL fucked-up.
0 Replies
 
joefromchicago
 
  1  
Reply Tue 23 Jun, 2009 08:00 am
@Thomas,
Thomas wrote:
I think joefromchicago has a copy of Friedman. Maybe he remembers the passage I'm paraphrasing, and can look it up for me.

Do your own damned homework!
Thomas
 
  2  
Reply Tue 23 Jun, 2009 06:00 pm
@joefromchicago,
I'm a libertarian. I believe in outsourcing. It was worth a try.
0 Replies
 
Brandon9000
 
  1  
Reply Wed 24 Jun, 2009 05:14 am
@Setanta,
Setanta wrote:

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.

Even were I being paid directly by "big tobacco" to post here and you proved it with photos, tape recordings, etc., it wouldn't contribute a bit towards disproving anything I say. An assertion cannot be disproven by impeaching its source. However, although it has no bearing on my argument, just so you know, for many, many years, in private conversations, I have been complaining to people that the voluntary agreement among cigarette advertisers to stop advertising on TV seemed to have been coerced in a way that I thought came perilously close to a first amendment violation. I do not post every word I say on A2K. If there have been attempts to legally restrict cigarette advertising before, I was simply unaware of them. Another fact not relevant to this argument is that I have never smoked a cigarette and to me this is simply a free speech issue. One last irrelevant fact is that I don't hate President Obama. Stick to the actual subject of what I assert.
Brandon9000
 
  1  
Reply Wed 24 Jun, 2009 05:16 am
@DrewDad,
DrewDad wrote:

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.

Okay, here's the evidence. The amendment forbids Congress to make any law abridging freedom of speech. The law gives the FTC the power to stop or inhibit cigarette advertising. If the Constitution says, "You may not do X," and you do X, that's a violation.
0 Replies
 
Brandon9000
 
  1  
Reply Wed 24 Jun, 2009 05:17 am
@joefromchicago,
joefromchicago wrote:

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?

Another really good question. Ultimately, of course, it's a matter of placing a threshold, but my respect for the Constitution and the philosophy it represents is so great that I would place the threshold very, very close to a literal reading.
Brandon9000
 
  1  
Reply Wed 24 Jun, 2009 05:32 am
Actually, I believe that every law, including ones I don't agree with, should be interpreted exactly literally, if possible, and almost exactly literally when some simple exception must be made, just because I respect the rule of law.
0 Replies
 
joefromchicago
 
  1  
Reply Wed 24 Jun, 2009 05:40 am
@Brandon9000,
Brandon9000 wrote:
Another really good question. Ultimately, of course, it's a matter of placing a threshold, but my respect for the Constitution and the philosophy it represents is so great that I would place the threshold very, very close to a literal reading.

What you call a "threshold" I would call an "arbitrary limit." There's nothing in the first amendment about defamation or "fighting words" -- I checked. It just says "freedom of speech." If you choose to read certain limitations on that freedom into the first amendment (and, conversely, not read other limitations into it), then you have to have some justification for that interpretation, because the text of the amendment itself doesn't support that kind of reading. And if you're a constitutional literalist, the source of that justification must be found in the text of the constitution.

So, my question is: where in the constitution do you find the basis for laws against defamation and "fighting words?"
Setanta
 
  1  
Reply Wed 24 Jun, 2009 07:11 am
@Brandon9000,
Quote:
Another really good question.


Yes, it is. Why don't you answer it?
0 Replies
 
Setanta
 
  1  
Reply Wed 24 Jun, 2009 07:15 am
@Brandon9000,
What twaddle--i wasn't impeaching your source, nor did i make any statement even remotely resembling an accusation that you are in the pay of anyone in this matter. What i pointed out about your partisan motive is that you are whining about this now because of the administration in power. For the rest, i've just pointed out, repeatedly, how ignorant you are in all these matters. If you were informed, you'd have already known that the Supremes ruled on restrictions in tobacco advertising in 2001. If you were informed, you'd understand the burden of Joe's question about "fighting words." The fact that you can't provide a straight answer to Joe's question is a deafening statement on the poverty of your argument--not some silly claim about impeaching your sources--a straightforward defeat of what passes for an argument on your part.
H2O MAN
 
  2  
Reply Wed 24 Jun, 2009 08:45 am


Smokers are not the brightest bulbs in the chandelier...
0 Replies
 
engineer
 
  1  
Reply Wed 24 Jun, 2009 09:14 am
I don't think restricting commercial speech is illegal, but is restricting commercial speech on tobacco fair? I don't think so. I understand smoking causes health issues, number one killer, etc. I am not a smoker and don't appreciate second hand smoke. That's not really my point. Smoking is legal and is an adult activity participated in around the world, much like drinking. My understanding is that there real differences between brands in terms of flavor, quality, nicotine kick and cost. How can companies reach out to their customers to explain those differences without advertising? Companies can advertise perscription drugs that can only be obtained through a doctor. Beer companies can talk about how their products taste great or are less filling. Fast food companies can pitch fat burgers to children with Disney toys. But tobacco companies cannot talk about their products at all. Seems like a comercial speech double standard against an industry that is out of favor. If there is a rule that is being followed to exclude tobacco advertising, it should be applied universally.
0 Replies
 
Setanta
 
  1  
Reply Wed 24 Jun, 2009 10:48 am
Engineer, what evidence do you have that the tobacco companies are not allowed to advertise at all? Have you checked out the Supreme's decision in 2001 in Lorillard v. Reilly? You mentioned second hand smoke--what is the equivalent effect of MacDonald's burgers, or is there one at all? What is the equivalent effect in drinking a can of beer, or is there one at all? I think your analogies fail, because the situations are not analogous. Certainly the states' attorneys general put the screws to the tobacco companies in the 1998 settlement--to which the tobacco companies consented. The significance of Lorillard v. Reilly is that efforts by the states to tighten the restrictions since 1998 have not met with universal or unlimited success. Time enough for big tobacco to holler when they're hurt. As i pointed out earlier, this is policy by the FDA, and not law. If big tobacco thinks they're getting screwed, they'll trot out the high-priced legal teams and take the FDA to court--they've never hesitated to use that route in the past.
 

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