Free Speech vs. Compelled Speech
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.