Tobacco Companies File Free Speech Challenge To New Graphic Cigarette Labels

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.

Jonathan Turley

34 thoughts on “Tobacco Companies File Free Speech Challenge To New Graphic Cigarette Labels”

  1. No, raff, not turn the other cheek. Actually, you are supposed to die and cut the overhead for taxpayers.

  2. Well put OS. How the heck can you take emotion out of the health care debate? If you are told you have cancer and you can’t afford the care are you supposed to just turn the other cheek?

  3. Lets get real. St. Jude Children’s Research Hospital has 78 inpatient beds and treats a total of about 230 patients each day.

    There are approximately 12,400 children diagnosed with cancer each year in the USA. One in 300 boys and one in 333 girls will be diagnosed with cancer before their 20th birthday. Cancer is the leading cause of disease-related deaths in children.

    I know from first hand experience that once a kid has been diagnosed with cancer, even if they survive, they become uninsurable for life with the private pay insurance industry.

    If you want to minimize emotion that is your prerogative, but this is an emotional topic for those of us who have a conscience.

    Sources of data comes from Candlelighters, National Cancer Society and CDC epidemiological statistics.


  4. “@OS and Mike Spindell, can either of you articulate the actual counter argument for government involvement in medical care and retirement and the inherent problems associated therewith instead of the emotional caricature presented?”


    Caricature? This is where we differ. I can only view this through an emotional lens. I am literally alive because of Medicare. OS tells of the cost in trying to keep his grandson alive and the expense of treating his daughter who has thankfully survived. We are just two people, both with income and resources, who would not have been able to pay for our health care despite private insurance. Tens of millions aren’t able to do so and of those millions a large percentage are unable to obtain or afford adequate health insurance and medical care. I believe that adequate health care should be a right open to all citizens, despite their circumstance.

    I believe that health care is in the interest of this country to provide, as a matter of empathy for others, as a matter of equity in a society rife with artificial inequity and to maintain the social stability of this country. You apparently do not. If you are not moved by the tragedies we see around us every day due to the inequality of the health care system, there is little I can do to change your mind. I would point out though that your perception is probably filtered through the lens of your own political/social philosophy. If that is the case I reject your philosophy and believe emotionally that it is socially bankrupt.

    Admittedly to me this is an emotional issue so I acknowledge that I am not providing arguments that you would deem persuasive, given your perspective. There are many people who feel as you do, that you have no responsibility to anyone besides you and yours. Since you obviously don’t feel that way emotionally, then it is your right to reject the notion of societal responsibility for all of its’ citizens

    “There are places like St. Judes which take all children with and without money. And voluntary charity would take care of those without if our economy could ever be freed up.”

    St. Judes is a wonderful hospital and does marvelous work. The need for cancer treatment for children, however, is far greater than the hospitals available and the charities to pay for them. To believe that charity could be available to address even 5% of the need is simply not credible. The alternative is to let certain people die for lack of care and chalk it up to
    a Social Darwinist perspective of survival off the fittest. I son’t believe this is socially acceptable, perhaps you do and there lies the difference between us.

  5. OS,

    If folks really knew what was put into foods to make them tasty….The biggest misnomer in Diet Soda’s….Why so much sodium….ah to create the desire for thirst….Same as commercial manufactures put more in in the winter time….They would be appalled…

    I feel the struggle that you family member went through with alcoholism…It is a very misunderstood, while accepted at the same time consumable of life…It becomes, from my studies like a manic part of life for them…but then why don’t they just walk away from it…when it starts to become a problem….I think that stems from the id/ego part of the brain…looking for that time when it was fun and actually relieved the problem temporarily…then it becomes the problem…

    For most the issue becomes settling the debate which came first the chicken or the egg…and the result is…does it really matter…it is the way it is….

  6. AY, there is a lot of food-looking stuff out there that you could use for pyrotechnics. However, I am a professional geek, so this is how geeks light their charcoal grill. From cold to steak well done in about 0.7 seconds.

    May I suggest you do not try this at home, even if you have a few gallons of LOX laying around.

  7. AY

    i’ve always wondered what was in nondairy creamer. not enough to look at the label. it’s kind of like imitation crab meat or “i can’t believe it’s not butter”. you don’t what it is, but there’s no mistaking what it isn’t.

  8. kderosa:

    you make a good point. Cancer is a nasty disease and the suffering it causes is monumental. There are places like St. Judes which take all children with and without money. And voluntary charity would take care of those without if our economy could ever be freed up.

    The intervention in our lives if government gets hold of medical insurance will be unlimited. They will pass laws against smoking, drinking, high fat food, high sodium food and lobbyists will have a field day. The Peta and vegan crowd will have us eating tofu. Government will have a green light to get into every aspect of our lives since they will be controlling the purse strings.

    They will start mandating we have sex at least 3 times a week for health or they will mandate that we can only have sex 2 times a month for health. Every single thing we do will be based on the impact on health care costs.

    It is going to be a nightmare.

  9. Should the government have pictures of maimed, decapitated, burned, etc. bodies adhered to the new automobile one is going to buy to warn the buyer that this product, used incorrectly OR correctly, may have these type of results? Of course not. It’s a waste of time.

  10. @OS, those are fair points. However, the lost income income, and hence lost SSI contributions is certainly negligible since that would only be a problem for those who are younger than 65 who have exceeded sick pay benefits. As far as disability payments go, I’d like to see the actual data before declaring it huge. Also, as far as cancer and other diseases go, we are only concerned with the incidence of those diseases that are increased for smokers and the obese, not all cancers.

    @OS and Mike Spindell, can either of you articulate the actual counter argument for government involvement in medical care and retirement and the inherent problems associated therewith instead of the emotional caricature presented?

  11. Mike S.
    You have it nailed. Think back to the teabagger lady who told Barack Obama, in a town hall meeting, that she wanted the government to keep its hands off her Medicare. The disconnect between themselves and reality leaves those in good reality contact bemused, to say the least.

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