Big Tobacco, graphic packaging, and the First Amendment

By Alison Frankel
November 8, 2011

Even tobacco companies are entitled to the free speech protections of the First Amendment.

As U.S. District Judge Richard Leon of Washington, D.C. federal court explained in a fascinating ruling Monday, the Constitution grants not just the right to speak, but also the right not to. “Compelled speech” violates the First Amendment, except in a narrow commercial context; the U.S. government can require businesses to make “purely factual and uncontroversial” disclosures to protect consumers.

Judge Leon found that nine graphic images the Food and Drug Administration and the Department of Health and Human Services planned to require tobacco companies to carry on every pack of cigarettes amounted to compelled speech. He granted the tobacco companies an injunction against the requirement, finding that “unfortunately for the government, the evidence here overwhelmingly suggests that the rule’s graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are [permissible].” “Indeed, the fact alone that some of the graphic images here appear to be cartoons, and others appear to be digitally enhanced or manipulated, would seem to contravene the very definition of ‘purely factual.’”

The judge said that the Justice Department simply could not show that the government’s intention in requiring the images — which are supposed to cover half of the front and back of each pack — is only to inform consumers. Instead, he found, the goals of the requirement are “to say the least, unclear.” The images appeared to have been chosen to evoke an emotional response and persuade consumers either to stop smoking or never begin, Judge Leon said. And in that, they breached the tobacco companies’ right not to be forced to advocate against the use of their own lawful product.

“He was very troubled by the question, which he asked the government several times: ‘How can I tell the difference between factual and uncontroversial material and material that constitutes advocacy?’” said Lorillard counsel Floyd Abrams of Cahill Gordon & Reindel, who shared oral argument with RJ Reynolds counsel Noel Francisco of Jones Day. “We argued that any images of the sort suggested by Congress are unconstitutional.”

The injunction against the graphic images, which are mandated in Congress’s 2009 Smoking Prevention and Tobacco Control Act and were selected after a two-year rulemaking process, was all the more notable because the Justice Department prevailed in a previous challenge to the labeling law. Before the FDA selected the specific images the industry would be required to carry on cigarette packs, several tobacco companies sued in Kentucky federal court, arguing that the law violates the First and Fifth Amendments. As I’ve previously reported, Bowling Green federal judge Joseph McKinley Jr. ruled that the law is constitutional. The tobacco companies have argued their case before the U.S. Court of Appeals for the Sixth Circuit.

The Justice Department argued in the injunction case before Leon that he shouldn’t enjoin the labels because the Kentucky ruling showed the tobacco companies were unlikely to prevail on the merits of their constitutional claim. The Washington judge disagreed. For one thing, he wrote in a testy aside, he’s not bound even by his D.C. federal colleagues, much less by a judge in a different district. And for another, the Kentucky judge was addressing hypothetical constitutionality, not the question of whether specific required images amounted to compelled speech.

“The Sixth Circuit is deciding on a facial level,” said Abrams. “What Judge Leon had was the pictures themselves.”

In fact, Abrams said, even if the Sixth Circuit concludes that the law Congress passed is constitutional, tobacco companies can continue to assert that specific required images are not. Purely factual charts and graphs depicting the health effects of smoking, Abrams said, may pass muster, but the more vivid the images are, the tougher it will be for the government to argue that they’re permissible as exceptions to compelled speech.

A Justice Department spokesman said the DOJ is reviewing the ruling.

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