Smoking and Censorship

Definition: Inhaling or ingesting smoke from tobacco products, such as cigarettes and cigars

Significance: Concern over health damage and deaths caused by smoking in the United States has prompted efforts to censor or restrict the advertising and promotion of tobacco products

Mounting evidence that smoking contributes to lung cancer and emphysema, resulting in serious health problems and even death, has lead to insistent calls for new laws banning or restricting the advertising and promotion of cigarettes, cigars, and other tobacco products in the United States. The issue has pitted the American Cancer Society, parent groups, and environmentalists against the Tobacco Institute, advertisers, and civil libertarians. It has tested the strength of First Amendment protection for commercial speech in a context in which the products being advertised have many users but few defenders.

From time to time Congress has considered banning advertising tobacco products. Generally, such laws would prohibit the advertising and promotion of cigarettes, cigars, and other tobacco products through any medium, including radio and television commercials, newspaper and magazine advertisements, billboards, sponsorship of athletic events, and the distribution of free samples. Such bans would cover truthful as well as false, deceptive, or misleading advertising.

Commercial Advertising

Historically, commercial advertising played a significant role in the establishment and growth of a free press. The Founders who wrote the Declaration of Independence and the Bill of Rights had come of age reading newspapers financed by advertising. Advertising served as a vital source of financial backing that made newspapers possible and kept them largely independent of political control, often exercised through favored appointments of official printers.

The values reflected in the First Amendment apply with equal force to advertising as to other forms of expression. Advertising expresses ideas and information that are useful and oftentimes necessary to the public. Learning about the availability, cost, and advantages of goods, including cigarettes, may be more vital to the everyday affairs of most people than reading about the theories of John Locke or the Senate’s debates on grain subsidies.

Likewise, the First Amendment reflects confidence that the American people can be exposed to the art of persuasion and still make informed choices, regarding consumer goods or regarding candidates for office. The US Supreme Court has held that “the State’s fear that voters might make an ill-advised choice does not provide the State with a compelling justification for limiting speech.” The state’s fear that consumers might make an ill-advised purchase of cigarettes in response to a truthful advertisement does not provide the state with a compelling justification for limiting, let alone prohibiting, such advertisements. The Supreme Court has consistently invalidated restrictions designed to deprive consumers of accurate information about diverse products and services legally offered for sale, including contraceptives, housing, pharmaceuticals, legal services, and abortions.

Opponents of restrictions on cigarette advertising have argued that any attempt by Congress to prevent citizens from obtaining truthful tobacco advertising because of the effect Congress fears such information will have in encouraging the purchase and use of tobacco products cannot withstand constitutional scrutiny. “The people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments,” the Supreme Court has held. The First Amendment presupposes that people will perceive their own best interests only when they are well informed, and that the best means to that end is to open channels for communication, not close them.

Gambling on Tobacco

Supporters of banning cigarette advertising rely on the decision in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986), in which the Supreme Court upheld a narrow restriction on advertising of lawful casino gambling aimed at residents of Puerto Rico, while allowing other advertising within and without Puerto Rico. Justice William H. Rehnquist wrote the Court’s 5-4 opinion. Noting that the case involved “pure commercial speech which does no more than propose a commercial transaction,” the regulation concerned a lawful activity neither misleading nor fraudulent; the “reduction of demand for casino gambling by the residents of Puerto Rico” was a “substantial” government interest; the regulation “directly advanced” the government’s stated interest; and the restrictions were “no more extensive than necessary to serve the government’s interest.” The Court disagreed with the casino’s argument that the way to reduce demand for casino gambling by residents was to promulgate more speech, not less, designed to discourage gambling. “It would surely be a Pyrrhic victory for casino owners . . . to gain recognition of a First Amendment Right . . . only to thereby force the legislature into banning casino gambling by residents altogether.”

In dissent, Justice William J. Brennan, joined by justices Thurgood Marshall and Harry A. Blackmun, said that none of the differences between commercial and other speech “justify protecting commercial speech less extensively where, as here, the government seeks to manipulate behavior by depriving citizens of truthful information concerning lawful activities.” Regulation of speech based on “fear that recipients will act on the information provided . . . should be subject to strict judicial scrutiny.” Even if substantial government interests had been shown, Justice Brennan found no indication that the advertising regulation would satisfy concerns about corruption or organized crime.

Opponents of restrictions on tobacco advertising have argued that the law at stake in Posadas bears little resemblance to proposed prohibitions of all advertising of all tobacco products in all media at all times and in all places. Unlike casino gambling, which is legal in only two states, the sale of tobacco products is legal in every state of the union. Where traditionally lawful activity is concerned, the government’s decision not to outlaw such activity is strong evidence that no substantial evil exists that would justify a complete ban on the advertising of that activity. The question remains, however, if US society, which chooses not to outlaw tobacco products themselves, should allow for some lesser governmental right to ban tobacco advertising.

Children and Tobacco Advertising

Efforts to ban or regulate tobacco advertising have gained their greatest support by focusing on the impact of smoking on the health of young people. The natural desire to protect children, combined with objections to the perceived manipulations of advertisers, have led politicians, parents, health authorities, and community leaders to press for the elimination of tobacco advertising aimed at children. Joe Camel, the cartoon camel used to sell Camel cigarettes, came to symbolize crass attempts to induce young people to smoke. Proponents of restricting tobacco advertising argue that children are particularly gullible to the appeal of cigarette advertisements. The tobacco industry has responded that advertising does not cause children to begin smoking but rather only influences brand selection, but few in the public seemed convinced by such an argument, and the debate persists.

After the Family Smoking Prevention and Tobacco Control Act was passed in 2009, the US Food and Drug Administration (FDA) published its final regulations designed to limit the advertising and sale of tobacco to minors. The new rules forbid tobacco companies from sponsoring sporting and entertainment events, banned youths under the age of eighteen from purchasing tobacco products, restricted the inclusion of cigarettes in vending machines to venues only used by adults, and banned the sale of packs containing less than twenty cigarettes, among other stipulations. By late 2015, following a surge in the use of electronic cigarettes (e-cigarettes), the FDA announced plans to propose bills that would include regulating advertising of e-cigarettes to minors and child-resistant packaging.

False and Misleading Advertising

The fact that advertising is constitutionally protected does not mean that deliberately false and misleading advertising is constitutionally protected. Existing agencies, such as the Federal Trade Commission, are authorized to deal with specific instances of false, deceptive, and misleading cigarette advertising.

If tobacco advertising were to be fully banned, civil libertarians ask what may be banned next. Advertising for foods containing saturated fats, red meat, or refined sugar might be banned. Advertisements for alcohol, contraceptives, war toys, real guns, insecticides, and nuclear energy may also be banned. If the First Amendment were to be interpreted to tolerate a total ban on the advertising of one thing, there might be no distinction that would protect the advertising of anything.

Bibliography

Gartner, Michael G. Advertising and the First Amendment. New York: Priority, 1989. Print.

Kaplar, Richard T. Advertising Rights: The Neglected Freedom: Toward a New Doctrine of Commercial Speech. Washington, DC: Media Inst., 1991. Print.

Kaplar, Richard T., ed. Bad Prescription for the First Amendment: FDA Censorship of Drug Advertising and Promotion. Washington, DC: Media Inst., 1993. Print.

Layton, Lyndsey. "New FDA Rules Will Greatly Restrict Tobacco Advertising and Sales." Washington Post. Washington Post, 19 Mar. 2010. Web. 19 Nov. 2015.

Rome, Edwin P., and William H. Roberts. Corporate and Commercial Free Speech: First Amendment Protection of Business Expression. Westport: Quorum, 1985. Print.

Smolla, Rodney A. Free Speech in an Open Society. New York: Knopf, 1992. Print.

Tarkan, Laurie. "How New Rules Could Kill the Vaping Boom." Fortune. Time, 29 Sept. 2015. Web. 19 Nov. 2015.