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.”