In August, our Emily Badger asked if cigarettes have a right to free speech. This week, a federal judge answered yes.
Not that cigarettes, perhaps outside Doonesbury’s Mr. Butts, actually talk. Instead, a U.S. court in the District of Columbia determined that über-graphic depictions of diseased lungs and rotting teeth that the U.S. Food and Drug Administration required be put on cigarette packages exceeded the informational and entered the emotional. The distinction mattered to U.S. District Judge Richard J. Leon, who argued that the disturbing images and giant warning text were not the narrowly tailored forms of “compelled speech” that government can mandated, but a sensory broadside meant to be provocative.
Badger explained that government regulation of commercial speech faces a four-question test: “Is the speech lawful, truthful and not misleading? Does the government have a substantial interest in regulating it? Does the regulation directly advance the government’s interest? And is the regulation a narrowly tailored and reasonable fit for doing that?”
“While the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company's advertising space for Government advocacy can be frustratingly blurry, here … the line seems quite clear,” Leon wrote in a 29-page decision released on November 7. The feds’ proposed labels were anything but narrowly tailored, he said.
Leon’s views echoed those of David Hudson, a scholar with the First Amendment Center at Vanderbilt who spoke with Badger in August: “The sheer size of these ads, and the graphic nature of them, if you think about it, it’s an advertiser being forced to put ‘don’t buy this product’ on the product.”
Cigarettes in the United States have long had warning labels, but those massages were amped up under provisions of the Family Smoking Prevention and Tobacco Control Act of 2009. While that bill never states its purpose is to stop people from smoking (except for those who are “underage”), it does grant “authority to address issues of particular concern to public health officials, especially the use of tobacco by young people and dependence on tobacco.”
In suing the FDA, five tobacco companies argued that this authority did not include the level of grossness seen on the proposed labels. Leon’s ruling doesn’t end the argument; he determined the cigarette company stand looks likely to prevail at a higher court, and he enjoined the FDA from firing up the project on its September 2012 start date.
Perhaps ironically, the government’s actions may prove counterintuitive anyway. In June, our Tom Jacobs noted that “death-related warnings actually increase cigarettes’ appeal.”