Government May Be Violating Tobacco Companies' 1st Amendment Rights
July 3, 2011
A controversial US Supreme Court decision less than two years ago could have the unintended consequence of significantly
reducing the government's 46-year campaign against cigarettes.
In a 5–4 decision, largely along political lines, the Supreme Court ruled in Citizens United v. Federal Elections Commission (October 2009) that not only were parts of the Bipartisan Campaign Reform Act of 2002 (also known as the McCain–Feingold Campaign Reform Act) unconstitutional, but that corporations and political action
committees enjoyed the same First Amendment rights as private citizens.
The government's anti-smoking campaigns, most of them the result of a combination of executive department and
Congressional action, essentially have three major parts: anti-tobacco advertising and public service messages, warning
labels on cigarette packs, and the outright ban on several forms of tobacco company advertising.
Government Advertising
Because the First Amendment applies only to governmental intrusion upon free expression, when the government creates
advertising (whether TV ads or pamphlets), there can be no significant First Amendment issues. There may be some
recourse, however small, in suits against use of taxpayer funds for political purposes, similar to the government's role
during the George W. Bush administration in forcing anti-abortion education upon women and health clinics.
Labels
The anti-smoking campaign had begun with the 1964 Surgeon General's report that there was a strong correlation between smoking, lung cancer, and chronic bronchitis. The following year, Congress
passed the Cigarette Labeling and Advertising Act that required every cigarette pack to have a health warning: "Caution: Cigarette Smoking May be Hazardous to Your
Health." The Public Health Cigarette Smoking Act of 1969, taking effect two years later, strengthened the wording on cigarette labels to: "Warning: The Surgeon General
Has Determined that Cigarette Smoking is Dangerous to Your Health."
However, the labels had minimal effect on reducing smoking. In 1984, unwilling to face political consequences from an
outright ban, such as it enacted against any form of marijuana, Congress passed the Comprehensive Smoking Education Act that required even stronger messages on each pack.
Last week, the Food and Drug Administration, acting within authority of the Family Smoking Prevention and Tobacco Control Act of 2010, ordered all cigarette manufacturers to include nine new designs on a rotating basis on all cigarette packs. The
designs take up the top half, both front and back, of every pack. Several of the messages are medically-supported
statements that tell users that cigarette smoking causes cancer. One of the graphics is a pair of cancerous lungs next
to a pair of non-cancerous lungs. Another label shows a set of rotted teeth. Another shows smoke coming from a
tracheotomy hole.
The FDA also requires that government-approved messages appear on one-fifth of every print ad.
Based upon interpretation of the Citizens United case, it would not be an unreasonable stretch to argue that the newly-required messages, with graphics and text, place
an undue burden on a corporation's rights of free speech by restricting their own message to less than half. Another
argument could be made that by forcing the tobacco companies to accept pre-determined text and graphics is de facto government intrusion upon the rights of free expression.
Tobacco Company Advertising
The largest concern for First Amendment consideration is in the area of the federal government imposing restrictions
upon advertising and information messages.
In 1967, the Federal Communications Commission, citing the Fairness Doctrine , required radio and TV stations that aired paid ads from tobacco companies to run anti-smoking ads at no cost.
Unwilling to give up five to ten minutes a day to unpaid advertising, the stations began "voluntarily" dropping
cigarette advertising.
The Public Health Cigarette Smoking Act , which had changed the text of warning labels, also banned cigarette advertising on radio and television. In a
concession to the tobacco companies, Congress permitted the law to take effect on Jan. 2, the day after the televised
football bowl games. The effect of the law was a loss to radio and television stations of about $200 million a year in
cigarette advertising, and a significant increase in advertising in newspapers, magazines, and billboards—and not much
reduction in smoking.
A 1991 study in the Journal of the American Medical Association (JAMA)concluded that the cartoon character Joe Camel, advertising mascot for Camel cigarettes, was recognized by 3- to
6-year-olds almost as much as they recognized Mickey Mouse and Fred Flintstone. The AMA charged that R.J. Reynolds,
manufacturers of Camel cigarettes, had targeted children; the company denied the charges, but eventually settled the
lawsuit for $10 million, the funds to go to anti-smoking campaigns.
(Banning or significantly reducing tobacco company advertising in the United Kingdom and the European Union increased
after the publication of the study in JAMA. The Tobacco Advertising Prohibition Act of 1992 banned all forms of advertising in Australia. TV ads in the European
Union countries were banned in 1991, with the ban extended to all forms of media advertising in 2005.)
In 1998, the Tobacco Master Settlement Agreement was the result of years of litigation and negotiation between the four largest tobacco companies, which controlled about
97 percent of all domestic sales, and 46 state attorneys general; four states had already settled. That agreement
exempted the companies from class-action tort liability by citizens filing against the companies for health effects from
smoking. The federal government also agreed to provide subsidies to tobacco farmers to cover losses based upon reduction
of demand for their product. In exchange, the tobacco companies agree to provide $365.5 billion, with most of the funds
going to the states for anti-smoking campaigns, and to allow FDA regulation. Among other provisions, the tobacco
companies agreed to cut back advertising and sponsorship of activities, especially those that targeted youth. Because
this was a civil case settlement, First Amendment concerns were rendered moot.
However, the Family Smoking Prevention and Tobacco Control Act of 2010 is a government-imposed control that brings to question distinct First Amendment concerns. That Act bans tobacco
companies from sponsoring all sports and cultural events, which could loosely be interpreted as a violation of the right
of association, not specifically mentioned in wording in the First Amendment but extended by the Supreme Court decisions
involving First Amendment guarantees. The Act further bans tobacco companies from displaying all tobacco-related images,
including their logos, on any apparel, and also requires most advertising to be black lettering on a white background.
Both actions are probable First Amendment violations.
A critical side issue melds labels with the media. It would be nearly impossible for any medium to show anyone with a
cigarette pack, whether in news or entertainment, without also showing the government's message. Any attempt by the
government to regulate what appears on screen or in print would violate the First Amendment.
Without the Citizens United decision, the government's rights to regulate corporate advertising would probably not have significant basis for
challenge. With that decision, tobacco corporate entities suddenly have a case.
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This column is meant to be a general overview and not a definitive analysis or detailed case study of possible First
Amendment violations of government-imposed sanctions against tobacco companies. Dr. Brasch, professor emeritus of mass communications and journalism, is a specialist in First Amendment and
contemporary social justice issues. His latest book is Before the First Snow: Stories from the Revolution.