Free Speech vs. Compelled Speech

Thomas A. Briant, NATO Executive Director

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The U.S. Food and Drug Administration’s  proposed nine graphic  image and text statement cigarette health  warning labels have resulted in the  tobacco industry drawing a figurative,  yet extremely important, line in the sand  to protect First Amendment free-speech  rights. The line drawn by the industry in  the form of two lawsuits fi led against the  FDA to overturn the graphic cigarette  labels is a pivotal break point because the  images are so controversial. 

On March 19, 2012, the U.S. Circuit  Court of Appeals for the Sixth Circuit  issued an opinion upholding the mandate  for color graphic and text warning  labels on cigarette packaging; the ban on  using cigarette and smokeless-tobacco  brand names for sponsorships; the prohibition  of printing such brand names  on merchandise; the ban on free gifts  with a purchase of these tobacco products;  and the prohibition of sampling  except for smokeless products in an  adult-only facility. However, on the issue  of the mandate for color graphic and  text warning labels on cigarette packaging,  the three circuit court judges split,  with two in favor of the mandate and  one dissenting on the mandate.

 In contrast, the second federal lawsuit  has resulted in two district court rulings  in favor of the tobacco industry, including  a temporary injunction against the  enforcement of the FDA’s new graphic  image warnings and a decision on the  merits of the case that the mandated  graphic image warning labels are unconstitutional  compelled speech. 

One of the fundamental tenets of  constitutional law as decided by the U.S.  Supreme Court is that the First Amendment  to the Constitution protects not  only the right to speak freely, but also the  right to not speak at all. Numerous court  decisions have extended the free-speech  rights to include advertising, because  companies “speak” to their customers  through advertisements. When the government  mandates that an individual  or a company make a statement that a  person or corporation  would otherwise not  make if given a choice,  then the law requiring  the statement alters  the content of speech.  This is known as  “compelled speech,”  and the Supreme  Court has ruled that  this form of speech is  presumptively unconstitutional. 

This does not mean  that the government is  prohibited from compelling  companies to make certain kinds  of statements in their advertisements  or about their products. For decades,  cigarette manufacturers have printed  surgeon-general warning statements  on cigarette packages, pharmaceutical  companies have included warnings about  drug side effects with a patient’s prescription,  and food-labeling laws require the  disclosure of ingredients. The difference  is that these kinds of statements are factual  and noncontroversial, as well printed  in an unbiased format. This is the kind of  compelled speech that is not only justifi -  able, but also constitutional.

‘Strong Emotional Response’ 

In his decision issued Feb. 29, 2012, U.S.  Federal District Court Judge Richard Leon  ruled that the FDA’s proposed graphic  image and text statement cigarette health  warnings are neither factual  nor uncontroversial.  The judge determined  that the FDA’s use of  cartoons, digitally  enhanced pictures and  manipulated images  are all designed to  shock consumers. That  is, the graphic images  are not intended to  increase consumer  awareness about the  risks of smoking so  that the public can  make an informed  choice about whether  to smoke. Rather, the  judge found that the  FDA’s objective was “to evoke a strong  emotional response calculated to provoke  the viewer to quit or never start smoking.” 

In other words, the judge’s decision  demonstrates that the FDA crossed the  line between requiring tobacco manufacturers  to inform the public about the  health risks of smoking in a factual way  vs. mandating that these manufacturers  use product packaging to advertise that  consumers should either not start smoking  or quit smoking. By using cigarette  packaging and advertising to deliver a shocking and emotional message through graphic images,  Judge Leon determined that the FDA exceeded the lawful  boundary “between the constitutionally permissible dissemination  of factual information and the impermissible  expropriation of a company’s advertising space for government  advocacy …” 

Judge Leon went onto suggest a number of different  options that the FDA may consider to more narrowly tailor  new cigarette health warnings to meet constitutional  limits. These suggestions included creating a government  anti-smoking advertisement campaign when, in fact, last  November the FDA announced a five-year, $600-million  multimedia anti-smoking advertising campaign: printing a  factual, uncontroversial warning image on either the front or  back of cigarette packing, not on both the front and back as  mandated; reducing the size of the graphic warning to 20%  of the packaging surface, as opposed to 50% of the front and  back as proposed; and improving efforts to prevent the sale  of cigarettes to minors. 

Drawing the Line 

The main difference between these two lawsuits on the  graphic image health warnings is that the first lawsuit  focused on the size of the graphic images, while the second  lawsuit concentrated on the federal government’s mandate  requiring the manufacturers to provide non-factual and  controversial information through the use of shocking  graphic images. 

The plaintiffs in the first lawsuit, including a NATO  retail member and five tobacco manufacturers, can appeal  the decision by the Sixth Circuit appeals court to the U.S.  Supreme Court. On April 10, 2012, the U.S. Court of Appeals  for the District of Columbia is scheduled to hear an oral  argument on the FDA’s appeal of the temporary injunction  ruling and the decision on the merits in the second federal  lawsuit. When the District of Columbia appeals court issues  a decision, either the tobacco manufacturer plaintiffs or the  FDA can appeal that ruling to the U.S. Supreme Court.

In sum, the question is whether the U.S. Circuit Court  of Appeals for the District of Columbia will rule like Judge  Leon that the FDA’s graphic-image mandate crosses the line  between what is permissible and impermissible. In the end,  the Constitution and the U.S. Supreme Court cases that  have interpreted the constitutional right of free speech will  determine where the line is drawn.  

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