Four of the five largest U.S. tobacco companies have filed a free speech challenge to the new packaging for cigarettes. I have previously criticized the graphic images of corpses and diseased organs. If the case goes to the Supreme Court, it could resolve the long-standing debate over the scope of free speech rights held by corporations as opposed to individuals. In that sense, it could be the extension of the Citizen United case in adding elements of personhood to corporations in the free speech area.
The odds still run against the companies given the broad authority of the government in regulated areas. However, they have an interesting issue of the limits on the power of government to force lawful products to carry anti-product messages or images. While I strongly dislike smoking, I have always been bothered by this trend and concerned over what limits exist for the government. Can the government force disgusting images on any product that it disfavors or finds inimical to health?
The issue of corporate speech has long divided the free speech community. The Supreme Court has long adopted a “common sense distinction” between individual and commercial speech:
We have not discarded the “common-sense” distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.
Ohralik v. Ohio State Bar Ass’n (1978)
This is a case that we will follow closely.