The Rights of Joe Camel and the Marlboro Man
Dority, Barbara, The Humanist
Joe Camel banned from Rolling Stone magazine? The Marlboro Man banished from billboards everywhere? The end of Winston Cup racing and Vantage golf tournaments? Never another Virginia Slims tennis match or musical performance?
Yes, if President Clinton and the Food and Drug Administration have their way. With the noble aim of cutting teenage smoking, they have proposed sweeping restrictions on advertising and images that "portray tobacco use as fun, independent, sexy, and glamorous."
These sweeping proposals do have some opponents besides the tobacco industry - but not many. Nobody likes to be that unpopular, especially in their own circles. I know I don't. But as an anti-censorship activist, I just can't get around the free-speech limitations implicit in these proposals. Sometimes I almost wish I could, for I truly detest tobacco products. But giving the government the power to enforce these restrictions is simply too dangerous to the First Amendment.
President Clinton's strategy for imposing restrictions on commercial speech began when the FDA declared nicotine an addictive drug - which it certainly is. But it's a perfectly legal addictive drug, just like alcohol. Putting aside for the moment the substantial issue of whether the state should make the use of certain substances for individual consumption a punishable crime in the first place, these particular proposals should be carefully examined.
The Clinton/FDA legislation includes banning tobacco billboards within 1,000 feet of any school or playground and allowing only black-and-white ads without pictures in materials read by two million teens or with more than a 15 percent youth readership. The sale or display by any store of caps, gym bags, and T-shirts with cigarette-brand logos would be a criminal offense. Brand-name sponsorship of sporting or entertainment events would be prohibited. Cigarette machines would be banned from grocery stores, restaurants, and all other places where a teen might wander.
Last, but not least, the six tobacco companies whose brands teens use most would be ordered to help the FDA create televised health warnings and other educational materials at a cost to the industry of millions of dollars.
When did it become appropriate for the president or any federal agency to dictate which legal products can be advertised, where, when, and in what manner? In a capitalist, free-enterprise society (whether or not we endorse such a system), should we give the state the comprehensive power to limit free speech by censoring the contents of ads for certain legal products? Should the government be doing this to a legitimate industry (whether or not we think it should be a legitimate industry notwithstanding) that produces and sells a legal product grown with the help of government subsidies? And can that industry be forced by the state to pay for advertising that disparages its own products?
Despite my attempts to get around it, there's something very wrong about all this. It really sticks in my throat. As much as I'd love to see the tobacco companies go out of business altogether, these proposals reek of unfairness. Worse yet, they would impose government censorship on a massive scale. "There are serious constitutional problems with the majority of the new regulations," says First Amendment expert Martin Redish, professor of law at Northwestern University. That's putting it mildly.
Most of the proposed regulations are being challenged in a pair of federal lawsuits filed in North Carolina by the tobacco and advertising industries. (The total absence of any free-speech organizations from this conflict is glaring.) U.S. District Judge William Osteen has ordered briefs discussing the FDA's authority to issue such regulations and whether or not they would violate the First Amendment. The first scheduled court date is February 10, 1997.
While it is true that the courts have never interpreted the First Amendment as giving absolute protection to all speech and have given governments more leeway to regulate advertising than other types of expression, existing case law leaves no doubt that advertising is entitled to most free-speech protections. …