D.C. Judge Smokes out a First Amendment Violation

Don't Bogart our First Amendment Rights

The “Family Smoking Prevention and Tobacco Control Act”, Pub. L. No. 111-31, 123 Stat. 1776 (2009) gave the FDA the authority to regulate the manufacture and sale of cigarettes and other tobacco products. Under that law, Congress mandated that the DHHS must “issue regulations that require color graphics depicting the negative health consequences of smoking.” It also required that the top 50% of all cigarette packages, and the top 20% of all cigarette advertising, must carry one of the following messages with graphic images.

    WARNING: Cigarettes are addictive.
    WARNING: Tobacco smoke can harm your children.
    WARNING: Cigarettes cause fatal lung disease.
    WARNING: Cigarettes cause cancer.
    WARNING: Cigarettes cause strokes and heart disease.
    WARNING: Smoking during pregnancy can harm your baby.
    WARNING: Smoking can kill you.
    WARNING: Tobacco smoke causes fatal lung disease in nonsmokers.
    WARNING: Quitting smoking now greatly reduces serious risks to your health.”

The graphic images would rotate according to an FDA approved plan and include color images of a parade of anti smoking horribles, such as a picture of a man exhaling cigarette smoke through a tracheotomy hole in his throat, a plume of cigarette smoke enveloping an infant receiving a kiss from his or her mother, pairs of diseased lungs, a diseased mouth with cancerous lesions, a premature baby in an incubator, etc.

Naturally, the cigarette companies filed suit. The regulations seemed to be a clear example of government compelled speech. On Feb. 29, Judge Leon agreed. R.J. Reynolds Tobacco Co. v. United States FDA, 2012 U.S. Dist. LEXIS 26257 (D.D.C. Feb. 29, 2012). In analyzing the claim, Judge Leon laid out a concise history of compelled speech jurisprudence.

A fundamental tenant of constitutional jurisprudence is that the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.”Wooley, 430 U.S. at 714. A speaker typically “has the autonomy to choose the content of his own message.” Hurley, 515 U.S. at 573. And, in fact, “[f]or corporations as for individuals, the choice to speak includes within it the choice of what not to say.” Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 16, 106 S. Ct. 903, 89 L. Ed. 2d 1 (1986) (plurality opinion).  As plaintiffs so aptly stated, although “the Government may engage in [ ] advocacy using its own voice[,] . . . it may not force others, such as Plaintiffs, to serve as its unwilling mouthpiece.” Reply in Supp. of Pls.’ Mot. (“Pls.’ Reply”), Nov. 18, 2011, at 1 [Dkt. #42]; see Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2671, 180 L. Ed. 2d 544 (2011) (“The State can express [its] views through its own speech. But a State’s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction.”). Thus, where a statute “‘mandates speech that a speaker would not otherwise make,’ that statute ‘necessarily alters the content of the speech.'” Entm’t Software Ass’n v. Blagojevich, 469 F.3d 641, 651 (7th Cir. 2006) (quoting Riley v. National Federation of Blind, Inc., 487 U.S. 781, 795, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988)). As the Supreme Court itself has noted, this type of compelled speech is “presumptively unconstitutional.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995).

Leon recognized that the government may, sometimes, compel commercial speech in order to protect consumers from confusion or deception. However, the court held that these regulations did not further those interests.

First, after reviewing the evidence here it is clear that the Rule’s graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard. 12 To the contrary, the graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking. Indeed, a report by the Institute of Medicine—an authority chiefly relied upon by the Government—very frankly acknowledges this very purpose. SeeDefs.’ Opp’n at vi; Institution of Medicine, “Ending the Tobacco Problem: A Blueprint for the Nation” (Richard J. Bonnie ed. 2007) (“IOM Report”) at 290-91. According to the IOM Report, “[i]t is time to state unequivocally that the primary objective of tobacco regulation is not to promote informed choice but rather to discourage consumption of tobacco products, especially by children and youths, as a means of reducing tobacco-related death and disease.” IOM Report at 291. Further, “[e]ven though tobacco products are legally available to adults, the paramount health aim is to reduce the number of people who use and become addicted to these products, through a focus on children and youths,” and, therefore, the “warnings must be designed to promote this objective.” Id.

The court scolded the government for not even considering the obvious First Amendment implications of some of the requirements, and debunked the “dodge” that neither the court nor the FDA has the authority to second guess Congress.

As the parties have conceded, there is no evidence that Congress even considered the First Amendment implications when drafting the Act.See SJ Tr. 30:10-13 (defendants); 42:3-13 (plaintiffs). To say the least, implementing a Final Rule consistent with a congressional mandate does not require a Court to hold that the Rule automatically passes constitutional muster. Congress must pass laws, and the FDA must implement final rules, that are consistent with the requirements of the Constitution.

The court held that the compelled speech was certainly content-based, and thus subject to strict scrutiny. The court found that not only did the government fail to show a compelling interest for the regulations, but that there were much more narrowly tailored ways of achieving its goal of getting out the anti-smoking message. The government had much more constitutionally acceptable means at its disposal to achieve its goals. “because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech.”

This is one of those cases where the party seeking shelter under the First Amendment isn’t exactly sympathetic. I personally despise cigarettes, the smell of them, the look of them, and the behavior of most who partake. (prior controversial post here) Hell, even the nazis knew that smoking was bad for you. No matter how pristine of an area I find in which to hike, I have yet to fail to find a cigarette butt waiting for me. Lung cancer recently killed an old friend of mine. My own mother, who never touched a cigarette in her life, suffers from maladies that are attributable to second hand smoke. The only thing that I actually find insufferable about living in Las Vegas is the ubiquitous smoke.

That said, I adore this decision. The court correctly found that the government doesn’t get to come up with its favored position and then enlist private parties as its propaganda agents. Not even when its goals might be noble, proper, and helpful.

I kind of like this French anti-smoking ad.

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