Anti-tobacco Legislation and the First Amendment

@Setanta,

I'm not saying the analogy to fast food or beer is perfect, but they have the following similarities to tobacco.

1) They are legal.
2) They have negative health impacts.
3) The companies selling the products need to differentiate their products in the marketplace.

The second hand smoke equivilent for beer could be drunk driving, but I'm not really striving for perfect analogies, only showing other industries where we do not have such draconian requirements. Nor am I saying it is illegal to regulate or limit tobacco advertising. I agree that commercial speech can be limited. But if a new tobacco company started today, one that did not consent to any settlement or have any history of unsavory behavior, they would still be limited by the existing restrictions on advertising. In fact, it would be hard to start a new company because you couldn't widely advertise your product. Is this a fair way to treat a legal industry? My issue is not that the tobacco industry is pure as the driven snow, only that we are inconsistent in the application of laws. If beer can advertise during the Super Bowl (and then say "drink responsibly") when can't cigarettes advertise (and then say "respect others' airspace")?

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The US Government has discarded the Bill of Rights. Journalists now have to reveal their sources even if it imperils the life of the source, religious organizations have to pay state and federal taxes, the government owns the banks and now this tobacco thing. This is not the America I grew up in.

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@engineer,

I see the force of your argument, but you still have some flaws in your reasoning. The comment about beer advertising during sporting events has the most force--but you throw it away completely in comparing second hand smoke to drunk driving. Driving while impaired is an altogether separate legal issue, and does not necessarily inevitably result from simply using the product. What is called "second hand smoke" does result from the simple use of the tobacco product.

The restrictions on tobacco advertising by the Federal government date from the 1971 law. This law has been upheld, and prohibits tobacco advertising on radio and television, and since 2003, tobacco advertising in the editions of specified magazines (agreed to in concert with "big tobacco") which are likely to appear in school libraries has been prohibited. In part, the argument stems from an application of the fairness doctrine, the FCC having ruled before the 1971 law that television programs which discuss the dangers of tobacco use did not balance the advertising of tobacco in broadcast media.

Any newly formed tobacco company would be subject to those advertising restrictions, as are existing tobacco companies. After the 1998 agreement between big tobacco and the states' attorneys general, state legislatures attempted to impose further restrictions on tobacco advertising, and that was what lead to the Lorillard v. Reilly case reviewed by the Supremes in 2001. Any newly formed tobacco company would be offered the same protections (yes, much of the decision protected tobacco companies from certain restrictions attempted by state legislation) as any existing tobacco company, and they would also be bound by any state legislation which has not been thrown out by the courts. Such a new company would have the same opportunity to advertise on bill boards, to participate in promotional marketing which can be shown not to target minors, and to advertise in magazines not destined for school libraries, just as is the case for existing tobacco companies. Similar restrictions, by the way, were once placed on the advertising of hard liquor on television and courtside at NBA games--but those were also voluntarily consented to by distillers, and since that time, an attempt to make such a ban law has failed, and the distillers have decided that they don't need to adhere to the voluntary ban.

I don't think you analogies hold up, even as revised, and you are quite incorrect that a newly-formed tobacco company could not advertise--they simply could not advertise in media and in ways that are prohibited to all tobacco companies. In that respect, the playing field is level.

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@joefromchicago,

joefromchicago wrote:

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?"

I'm not a Constitutional expert, but I agree that the amendment itself is clear and to the point, and makes no exceptions whatever. My argument is not that some other part of the Constitution is in conflict. I am saying that it is probably okay to make extremely minor exceptions if failure to do so would result in inevitable societal chaos. This, however, cannot be interpreted to mean that one can disregard what the law says whenever it suits one.

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@Setanta,

Setanta wrote:

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.

The amendment is stated clearly and simply, and the new law is in direct conflict with what it says. No other argument is necessary. Congress has no authority to make this law. I don't much care what some people who say they're experts think about a law which says what it means clearly. The law speaks for itself. It isn't vague. Giving the FCC the power to prohibit cigarette advertising isn't necessary to prevent immediate societal chaos, whereas prohibiting invocations to imminent violence is.

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@Brandon9000,

You can take a pig-headed position on this issue if you wish. That will not change that you have never answered Joe's "fighting words" question, nor have you faced up to the undeniable fact that the Supremes have made such distinctions. I feel rather certain that they did not consult your sense of strict construction in advance.

As for your continuing stance of righteous indignation, wrapping yourself in the constitution as though in a flag--where was your indignation when Bush campaign rallies knowingly exclude people whom the considered undesirable, because they might heckle or ask embarrassing questions? That was a clear violation of the first amendment, and most certainly in your phony strict construction take on it. Where was your indignation then?

I remain convinced that you are making such an issue about this simply because of the administration in power.

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@Setanta,

Setanta wrote:

I see the force of your argument, but you still have some flaws in your reasoning. The comment about beer advertising during sporting events has the most force--but you throw it away completely in comparing second hand smoke to drunk driving. Driving while impaired is an altogether separate legal issue, and does not necessarily inevitably result from simply using the product. What is called "second hand smoke" does result from the simple use of the tobacco product.

Not true. Smokers who "enjoy" the product alone at home do not cause problems with second-hand smoke. Engineer made that point while comparing it to the "drink responsibly" lip-service in the alcohol ads.

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@DrewDad,

The point, which you seem to miss, is that merely smoking tobacco produces "second-hand smoke," and whether or not there is anyone who is there to suffer it is beside the point. Do you allege that a drunk driver who is pulled over just as he arrives home should be let go, because he didn't kill or injure anyone on the way home? Drinking beer does not ipso facto lead to drunk driving; smoking tobacco does inevitably produce second-hand smoke.

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@Setanta,

Second-hand smoke does imply that there is someone else is there, otherwise the smoke isn't "second-hand"; smoking creates smoke, not second-hand smoke.

You're stuck in this loop of arguing a difference without a distinction. Engineer's point is valid, no matter how much you want to pick nits about his argument from analogy.

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@Setanta,

I agree with your legal reasoning. I'm not saying that banning tobacco advertising is certain mediums in not legal, nor do I think that states cannot implement further restrictions. I think that our treatment of tobacco advertising is inconsistent with how we treat other legal products and that tobacco products have a legitimate need to advertise to reach their customers. The current restrictions add significant barriers to entry for the market and tend to reward the entrenced players who were the ones who withheld information on the risks of smoking to begin with. It's hard for new or innovative tobacco products to reach their target audiences, even if it is for a better or more healthy product.

On the second hand smoke issue versus drunk driving: I think the analogy is better than you allowed. Of course the very act of smoking produces second hand smoke, but just as drunk driving laws address alcohol abuse, laws passed that say that smoking is prohibited in public places like restaurants and theaters address second hand smoke.

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@engineer,

engineer wrote:

The current restrictions add significant barriers to entry for the market and tend to reward the entrenced players who were the ones who withheld information on the risks of smoking to begin with. It's hard for new or innovative tobacco products to reach their target audiences, even if it is for a better or more healthy product.

I think that my be the entire point. Banning tobacco outright could destroy the economies of several states.

Slowly making tobacco less lucrative (by increasing the cost, preventing new consumers, etc.) allows them to adjust.

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@DrewDad,

Well, you're wrong, and it is not picking nits to point out that smoking tobacco always produces the smoke which is referred to as second-hand smoke, and drinking beer does not necessarily produce drunk driving. Therefore, the analogy fails. The fact that the analogy fails means that that part of his argument fails. Given that he is wrong about what barrier a new tobacco company would have to pass in order to present its product to the tobacco consuming public, because all tobacco companies face the same restrictions--which are not absolute, as he attempted to say at the outset--then his claim about an unfair burden to new tobacco companies is false. And that is true whether or not you understand or acknowledge it.

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@engineer,

Our treatment of all types of commercial speech is inconsistent--for example, one could not show images of a condom being placed on an erect penis in a television ad, while many other products are show in use. The mere fact that the treatment of commercial speech does not adhere to a universal standard is not evidence that any aspect of it is unfair. I don't think you've improved the position of your argument about alleged inequities to new tobacco companies by comparing drunk driving laws to restrictions on smoking in public places.

As far as entrenched tobacco companies are concerned, i rather suspect that they would have hoped that agreeing to restrictions on advertising would have had that effect. However, you cannot escape the fact that even without advertising restrictions, all entrenched producers of consumer products enjoy an advantage over new comers. That does not seem to me a sufficient argument to abandon any and all restrictions on advertising for any and all products.

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@Setanta,

Setanta wrote:

Well, you're wrong, and it is not picking nits to point out that smoking tobacco always produces the smoke which is referred to as second-hand smoke, and drinking beer does not necessarily produce drunk driving.

No, it's not picking nits because it's just plain wrong. By definition second-hand smoke needs to be inhaled by a second party and absent that second party to inhale the smoke smoking tobacco does not produce "second-hand smoke".

Quote:

Therefore, the analogy fails. The fact that the analogy fails means that that part of his argument fails.

Says Setanta, whose strength of conviction won't hide that he is just plain wrong.

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Having a little flail around the threads in which i post, RG? Even if one were to stipulate that tobacco smoke is only second-hand smoke if someone other than the smoker were present, Engineer's analogy still fails. Simply being present when someone else drinks beer does not inevitably expose one to the risks associated with drunk drivers--the cases are not analogous, and the failure of the analogy undermines Engineer's argument about restrictions on tobacco advertising. I understand, however, that your contempt for me makes it difficult for you to recognize simple truths like that, because you are too eaten up with the desire to find another opportunity to fling insults.

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@Robert Gentel,

I don;t know of anyone who has immediately died as a result of breathing second hand smoke.

I know many who have died immediately as a result of someone drinking too many beers and then getting behind the wheel of a car.

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@Setanta,

Setanta wrote:

Having a little flail around the threads in which i post, RG?

You flatter yourself predictably.

Quote:

Even if one were to stipulate that tobacco smoke is only second-hand smoke if someone other than the smoker were present, Engineer's analogy still fails.

I disagree with that, but I was addressing a specific brainfart on your part to the effect that all smoke is second hand smoke. I don't much care if you think you are right in other ways even if you are wrong here, that you are wrong here was my point.

Quote:

I understand, however, that your contempt for me makes it difficult for you to recognize simple truths like that, because you are too eaten up with the desire to find another opportunity to fling insults.

Setanta, you are just another idiot on a online forum to me, it is a delusion of grandeur to think that anything you do can "eat [me] up". I merely take pleasure in pointing out your idiocy because I think you are a jerk. I happened across a thread I'd been in where you had some new idiocy to sell and corrected it.

This doesn't magically make you the center of my world clown.

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I think there is a point you are missing, Engineer, in this argument. I have discussed second-hand smoke because you brought it up. But the restrictions on tobacco advertising and the voluntary restrictions to which tobacco companies agreed in the 1998 settlement were not predicated upon the dangers of second-hand smoke. The states' attorneys general (more than 40 of them) used as the basis for their suit the costs in medical care, and the societal costs in lost time associated with tobacco use. The American Cancer Society and other medical organizations hold that there is no safe level of tobacco use. Now someone may argue that there is no safe level of alcohol use, but i don't know of anyone having advanced such a case in an attempt to restrict advertising of alcoholic beverages. When distillers agreed to voluntarily refrain from advertising on television, i don't know that this was because anyone alleged that there is no safe level of the consumption of distilled beverages. But that case is made by medical professionals with regard to tobacco use, including smokeless tobacco. So, i would say that the justification for restrictions on tobacco advertising are not necessarily concerned with second-hand smoke, although certainly that is likely to be one factor. The basis, however, of the suit brought by the states' attorneys general which tobacco companies agreed to settle was the harm done to the individual tobacco user, and the concomitant costs to the states and to society in general. To that extent, i think an analogy to drinking beer is even less apt.

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@Brandon9000,

Brandon9000 wrote:

I'm not a Constitutional expert, but I agree that the amendment itself is clear and to the point, and makes no exceptions whatever. My argument is not that some other part of the Constitution is in conflict. I am saying that it is probably okay to make extremely minor exceptions if failure to do so would result in inevitable societal chaos. This, however, cannot be interpreted to mean that one can disregard what the law says whenever it suits one.

But isn't that exactly what you're doing? You claim to be a constitutional literalist, but, by creating exceptions to the first amendment for defamation and "fighting words," aren't you disregarding what the amendment says when it suits you?

Because the amendment doesn't say "you have free speech, except for tobacco advertising," you argue that there should be no exception for tobacco advertising. Yet the amendment also doesn't say "you have free speech, except for defamation and 'fighting words.'" So where do you get those exceptions? And why can't you also find the exception to tobacco advertising in the same place?

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@joefromchicago,

joefromchicago wrote:

Brandon9000 wrote:
I'm not a Constitutional expert, but I agree that the amendment itself is clear and to the point, and makes no exceptions whatever. My argument is not that some other part of the Constitution is in conflict. I am saying that it is probably okay to make extremely minor exceptions if failure to do so would result in inevitable societal chaos. This, however, cannot be interpreted to mean that one can disregard what the law says whenever it suits one.

But isn't that exactly what you're doing? You claim to be a constitutional literalist, but, by creating exceptions to the first amendment for defamation and "fighting words," aren't you disregarding what the amendment says when it suits you?

Because the amendment doesn't say "you have free speech, except for tobacco advertising," you argue that there should be no exception for tobacco advertising. Yet the amendment also doesn't say "you have free speech, except for defamation and 'fighting words.'" So where do you get those exceptions? And why can't you also find the exception to tobacco advertising in the same place?

Yes; your argument is cogent and dispositive of that question.
He can 't have it both ways.

I was thinking that too.

David

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Anti-tobacco Legislation and the First Amendment

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