Anti-tobacco Legislation and the First Amendment

Nicely ignoring that there is zero evidence that tobacco is marketed to kids.

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.

"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.

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

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.

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.

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

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.

I think joefromchicago has a copy of Friedman. Maybe he remembers the passage I'm paraphrasing, and can look it up for me.

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.

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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.

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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.

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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.

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.

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.

Another really good question.