Analyzing the Historic Case that Could Smoke the First Amendment
I do not care for cigarettes. I try my best to avoid using any tobacco products.
But last month, I filed my first assignment out of law school: an amicus brief to the US Supreme Court supporting the First Amendment rights of America’s biggest tobacco companies. And no, it’s not because I work for a corporate law firm that’ll defend anybody for the right price. I work for a non-profit, the Cato Institute, that has the luxury of choosing cases whenever it feels like they would have the potential for advancing civil and economic liberty.
This case, RJ Reynolds v Food and Drug Administration (FDA), is at the forefront of the fight for free speech, specifically the government’s power to force private companies to display their political views.
The Case: Big Tobacco, Advertising, and the First Amendment
RJ Reynolds v FDA arises out of the 5th Circuit Court of Appeals, challenging the authority of the agency to force cigarette companies to display graphic and disturbing pictures of diseases, cancers, and other complications associated with smoking on their packages. This rule is already in place in countries like the United Kingdom and Australia. The difference between these English-speaking countries and the United States is that the latter has something called the First Amendment which protects the freedom of speech.
Learn more about the First Amendment:
RJ Reynolds and other companies challenged the rule, citing their First Amendment rights and argued that it infringes on their right to design packages however they please and also forces them to act as billboards for the government’s anti-smoking message.
Furthermore, the plaintiffs argue that the graphic depictions could mislead consumers into thinking cigarettes directly cause those cancers and diseases. Indeed, previous warning labels only stated that cigarettes may lead to adverse health effects. But forcing companies to display pictures of late-stage diseases and large scars from surgeries with a jarring label declaring that smoking causes such maladies is both unsettling and empirically false.
The overwhelming majority of Americans acknowledge the risks of cigarettes. These health warnings do not serve to correct previous misconceptions; they serve to stigmatize and intimidate.
Although the district court ruled for RJ Reynolds, the appeals court reversed that ruling and found in favor of the FDA, citing a controversial and artificial exception to the First Amendment surrounding compelled speech in commercial settings.
Hey, hey, FDA: How many people did you kill today?
That exception was established in a case called Zauderer v. Office of Disciplinary Counsel, which allowed the government to force companies to include factual and noncontroversial disclaimers about their services to rectify consumer deception. In Zauderer, the offender was a lawyer who advertised that his clients would pay no legal fees, leaving out the fact that they would need to pay a large amount of other costs that were not technically “legal fees.”
The Supreme Court never clarified whether Zauderer only applied to deceptive advertisements or any time the government believed consumers should be educated about a product. Many if not most of the lower courts, including the 5th Circuit, decided to interpret Zauderer to apply any time there is a “consumer’s right to know.” Furthermore, it opened the floodgates for the government to compel private companies to speak its preferred message.
RJ Reynolds is currently appealing the case to the Supreme Court and urges the Court to correct the lower ruling and clarify that Zauderer only applies to deceptive representations.
Beyond Cigarettes
Cigarettes have a complicated relationship with the First Amendment. There are myriad restrictions on their advertising based on public health and safety grounds, particularly for children.
However, the FDA’s rule compelling companies to display horrific diseases on their packages not only goes too far but sets a dangerous precedent. Although consumers, smoking or non-smoking, do not wish to be berated by the government’s anti-smoking message every time they walk into a convenience store, the power to compel private companies to display government messages does not happen in a vacuum. If the government can appropriate cigarette packages for its anti-smoking advocacy, merely on the basis of “educating consumers,” it can also curtail speech rights for any company if the Supreme Court does not clarify the meaning of Zauderer.
In fact, the lower courts have and continue to allow local, state, and federal governments to run rampant throughout the economy, forcing private companies to display unnecessarily frightening messages, some of them blatantly political. Under the lax standard of “a consumer’s right to know,” local, state, and federal governments have attempted to or have succeeded in establishing numerous compelled speech rules regarding topics as far-fetched as these:
The list goes on and on. Some of these initiatives you may agree with; others you might passionately oppose; still others you might simply find strange. But at the heart of the issue is the fact that freedom of speech requires both the right to speak and not to speak and certainly the right to abstain from stating things that go directly against your own interests or beliefs.
But that’s what the government has done and continues to do under the expanded Zauderer standard, which stands as a glaring, paternalistic loophole for free speech protections.
In essence, the government is frustrated that it might be impractical or unpopular to regulate an activity directly, so instead, it tries to manipulate the information environment by diminishing the speech of disfavored businesses and replacing it with its own. This behavior is not only unconstitutional, but it’s antithetical to a self-governing, free society and the Supreme Court should put a stop to it once and for all.
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