Free speech rights of big tobacco
April 24, 2001 5:52 PM   Subscribe

Free speech rights of big tobacco Another case for the Supreme Court. This one involves billboard ads close to schools. Protect our kids or protect free speech?
posted by Postroad (29 comments total)
 
interesting. I think europe (or at least some members of the EU) have strict rules about advertising to children.

I wonder if you can make a case for controlling advertising that is aimed at kids (and just state flat out that if it's next to a school or playground, that counts) and still protect 1st amendment rights.

most of all, I think the tobacco industry is as stupid as a stump to even pursue this case; they aren't concerned with free speech at all, they're concerned about advertising; consumers now have another reason to be even more cynical about them than they already are.
posted by rebeccablood at 6:15 PM on April 24, 2001


Remember Coke Day? Well, how about "Marlboro Day"? Seems like a win-win deal: the kids get free cigarettes, while Philip Morris gets some positive PR just in time for the Kraft IPO.

(Naturally, any student caught *not* smoking Marlboros will be held back a year for re-education.)
posted by johnb at 6:33 PM on April 24, 2001


I know that commercial speech is protected by the 1st amendement. But why??? What is so sacrosanct about selling widgets that we need to protect widget advertising under our US Bill of Rights???
posted by caraig at 6:50 PM on April 24, 2001


What is so sacrosanct about selling widgets that we need to protect widget advertising under our US Bill of Rights???

um...it's kinda what the country was founded on....

everyone needs to (pardon the pun) take a deep breath and calm down. either cigarettes are a legal product or they're not. if they're legal, you can advertise them. if you don't like your kids hearing about cigarettes, ban them altogether. This dancing around the first amendment, trying to censor the tobacco industry just enough to stay within the Constitution, is totally bogus. i'll keep my stepson away from cigarettes at almost all costs--except at the expense of everything this country stands for.
posted by jpoulos at 7:11 PM on April 24, 2001


if they're legal, you can advertise them.

Do you feel the same way about spam? The courts have always given government more latitude when it regulates commercial speech.
posted by rcade at 7:59 PM on April 24, 2001


I personally don't think our bill of rights should apply to corporations, only individual citizens. In fact, by giving the 1st amendment freedoms to entities other than people, I believe we're diminishing those rights for the average person.
Of course, I vehemently believe that advertising to children is wrong, and shouldn't be allowed.
posted by Doug at 8:10 PM on April 24, 2001


Corporations are not people... no matter what case law says to the contrary. Corporate charters were initially granted to individuals to indemnify them against the liabilities inherant in great (large, not necessarily noble) causes. They were given such a dispensation because it was seen as being in the country's best interest (or at the very least, the crown's).

How we ever got away from that principle and that we have to cajole good behavior from these people when they should exist at the pleasure of the people is even more so... That this is seen as an offense against free speech is just sickening.

I'm with Abe Lincoln:

"I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country... corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed."

US President Abraham Lincoln
Nov. 21, 1864
(letter to Col. William F. Elkins)
Ref: The Lincoln Encyclopedia, Archer H. Shaw

(I first came across this quote at here.)
posted by silusGROK at 9:21 PM on April 24, 2001


they aren't concerned with free speech at all, they're concerned about advertising...

That you have arbitrarily and summarily decided what is and is not "free speech" for all Americans in this situation is precisely why the First Amendment was created. You cannot decide the free speech rights of others, nor can you force the government to accede to your demands that free speech rights be taken away from others.

And let's keep in mind here that the law being challenged is a sledgehammer of a regulation that says "no tobacco ads within 1000 feet of a school or playground, period." I don't know about your schools, but where I came from many of the schools are set up where kids can only get in and out in one basic direction. And 1000 ft away from them in the other three directions are all sorts of businesses and main roads; places the kids never go near before, during or after school because they're just far too inconvenient. But all of them would have to do without the ads, even if they were supermarkets or convenience stores, all for the sake of ... all together now, "Protecting the Children!!!!!" It's total overkill.

Do you feel the same way about spam?

Spam - and junk faxes - are different because the recipients end up directly paying for it. You pay for the fax paper and ink. Spam takes up parts of a limited amount of storage space you're allowed on a mail server, and some people have to pay per byte for their email.

Doug: Corporations are not people, but people make and run corporations. Under your plan, all that would be necessary is for the CEO of Phillip Morris to put his own name (or, more likely, the name of one of his subordinates) on the advertising bill.
posted by aaron at 9:53 PM on April 24, 2001



I thought commercial speech was different not for the corporations thing, but due to the 1st's being trumped in this case by the Commerce Clause. As in, blatantly false advertising making the markets function less efficiently, etc. Maybe I'm wrong about this, but try looking at any newspaper before truth-in-advertising laws passed. They still don't go far enough, in some cases, about what's in our food, etc. (as in, all those chemicals in a standard fast food shake), but it's better than what was there in the paleolithic era of American commerce.

In any case, this sucker will likely get hammered by the Court, given an expansion of commercial speech in recent years, but zoning laws or general billboard regulations could do the same trick, unquestionably. What this means for TV advertising is another question, but I don't imagine various interest and watchdog groups would dig that too much. The tobacco companies will lose anyway.
posted by raysmj at 10:15 PM on April 24, 2001


A notice reading "Purchase X," or promoting a certain business is an advertisement, regardless of who purchases it, Aaron. Clearly we'd have to use our judgement in that sort of situation, but if your example stands, Coke could get an employee to purchase an ad stating, "Coke will cure baldness!" and divorce itself from all responsibility, leaving that employee to deal with the consequences. That doesn't happen.
posted by Doug at 11:05 PM on April 24, 2001


One thing that could be of some benefit, however, if the ads are allowed is counter-advertising. Smoking rates among adultsfell considerably from the late '60s until 1971, when a TV ban on tobacco advertising went into effect. Then adult rates rose again, only to fall years down the line when anti-smoking rhetoric became a big deal again. It seems safe to say now that the government's (or at least certain sectors of the government's and the state govts's) anti-smoking crusade has been among the greatest success stories in public health history.
posted by raysmj at 11:08 PM on April 24, 2001


As others have pointed out above, this case is really just another illustration of the perversity that comes from treating corporations as persons. Good ol Ralph tells it like it is (from NY Times, 04/09/1988):

--------------

Our constitutional rights were intended for real persons, not artificial creations. The Framers knew about corporations but chose not to mention these contrived entities in the Constitution. For them, the document shielded living beings from arbitrary government and endowed them with the right to speak, assemble, and petition.

Today, however, corporations enjoy virtually the same umbrella of constitutional protections as individuals do. They have become in effect artificial persons with infinitely greater power than humans. This constitutional equivalence must end.

Consider a few noxious developments during the last 10 years. A group of large Boston companies invoked the First Amendment in order to spend lavishly and thus successfully defeat a referendum that would have permitted the legislature to enact a progressive income tax that had no direct effect on the property and business of these companies. An Idaho electrical and plumbing corporation cited the Fourth Amendment and deterred a health and safety investigation. A textile supply company used Fifth Amendment protections and barred retrial in a criminal anti-trust case in Texas.

The idea that the Constitution should apply to corporations as it applies to humans had its dubious origins in 1886. The Supreme Court said it did "not wish to hear argument" on whether corporations were "persons" protected by the 14th Amendment, a civil rights amendment designed to safeguard newly emancipated blacks from unfair government treatment. It simply decreed that corporations were persons.

Now that is judicial activism. A string of later dissents, by Justices Hugo Black and William O. Douglas, demonstrated that neither the history nor the language of the 14th Amendment was meant to protect corporations. But it was too late. The genie was out of the bottle and the corporate evolution into personhood was under way.

It was not until the 1970's that corporations began to throw their constitutional weight around. Recent court decisions suggest that the future may hold even more dramatic extensions of corporate protections.

In 1986, Dow Chemical, arguing before the Supreme Court, suggested that the Fourth Amendment's prohibition against unreasonable searches and seizures should prohibit the Environmental Protection Agency from flying planes over Dow's manufacturing facilities to monitor compliance with environmental laws. Although the Court permitted the flights on technical grounds, it appeared to endorse Dow's expansive view of the Constitution.

That year, corporations received the most sweeping enlargement of their free speech rights to date. In a 5-3 decision, the Court invalidated a California regulation ordering a public utility monopoly to enclose in its billing envelopes a communication from a nonprofit ratepayer advocacy group that financed the insert. The purpose of the regulation was to assist the Public Utility Commission in achieving its authorized goal of reasonable rates. Even so, the Court held that the enclosures violated a new corporate First Amendment right "not to speak." Associate Justice William H. Rehnquist wrote in a pro-consumer dissent that to "ascribe to such artificial entities an 'intellect' or 'mind' [for constitutional purposes] is to confuse metaphor with reality."

Today, corporations remain unsatisfied with their ascendant constitutional status. They want much more. At a 1987 judicial conference in Pennsylvania, lawyers counseled that corporations use the First Amendment to invalidate a range of Federal regulations, including Securities and Exchange Commission disclosure requirements that govern corporate takeovers, and rules affecting stock offerings.

Businesses angry at Congressional attempts to ban cigarette advertising -- by that, we mean commercial carcinogenic speech -- are alleging First Amendment violations.

The corporate drive for constitutional parity with real humans comes at a time when legislatures are awarding these artificial persons superhuman privileges. Besides perpetual life, corporations enjoy limited liability for industrial accidents such as nuclear power disasters, and the use of voluntary bankruptcy and other disappearing acts to dodge financial obligations while remaining in business.

The legal system is thus creating unaccountable Frankensteins that have human powers but are nonetheless constitutionally shielded from much actual and potential law enforcement as well as from accountability to real persons such as workers, consumers and taxpayers.

Of course individuals in these companies can always exercise their personal constitutional rights, but the drive for corporate rights is dangerously out of control.

Too frequently the extension of corporate constitutional rights is a zero sum game that diminishes the right and powers of real individuals. The corporate exercise of First Amendment rights frustrates the individual's right to participate more equally in democratic elections, to pay reasonable utility rates and to live in a toxin-free environment. Fourth Amendment rights applied to the corporation diminish the individual's right to live in an unpolluted world and to enjoy privacy.

Equality of constitutional right plus an inequality of legislated and de-facto powers leads inevitably to the supremacy of artificial life over real persons. And now the ultimate irony. Corporate entities have the constitutional right, says the Supreme Court, to patent living beings such as genetically engineered cattle, pigs, chickens and, perhaps someday, humanoids.

This is not to say that corporations should have only the legal right emanating from state charters that create them. What is required, however, is a constitutional presumption favoring the individual over the corporation.

To establish this presumption, we need a constitutional amendment that declares that corporations are not persons and that they are only entitled to statutory protections conferred by legislatures and through referendums. Only then will the Constitution become the exclusive preserve of those whom the Framers sought to protect: real people.
posted by johnb at 11:52 PM on April 24, 2001


Corporations are not people

Surely they consist of people, though. They consist of people, people who have individual rights just like you and me. Rights that need to be protected no matter how they may have chosen to organize. Yes, even if they have organized in order to make money.
posted by frednorman at 5:19 AM on April 25, 2001


> That you have arbitrarily and summarily decided what is
> and is not "free speech" for all Americans in this
> situation is precisely why the First Amendment was
> created. You cannot decide the free speech rights of
> others, nor can you force the government to accede to your
> demands that free speech rights be taken away from others.

aaron, there's a large undefined term in this proposition, and the question of the validity of the entire proposition resolves into the question of how we should define the term. You're a very bright boy as I know from your other posts. Will you consider for a moment what exactly it is that counts as an "other" for the purpose of having rights?

The perfectly clear case of an "other," an entity that must be considered as having human (and constitutional) rights, is an individual person. We don't and mustn't limit the definition to anything less than every individual person, and most of the history of human progress has been the recognition of larger and larger fractions of the species as human beings with human rights.

But what about further extensions to the definition? Should we extend human (and constitutional) rights to entities that are not individual human beings? For instance, should groups be considered as entities having free speech, apart from the individuals that make up the groups? And if so, which groups?

My proposition (counter to yours since it resolves yours to a question of definition of a crucial term, and then defines that term in a way I infer that you won't like) is that it isn't obvious that all groups should be considered as having rights the way all individuals are. In particular I propose that commercial, for-money-profit groups should be seen as fundamentally tainted and the speech of such groups (e.g. tobacco ads) may be and should be subject to much more regulation than the speech of individual human beings may be.

I am perfectly well aware that there are laws and precedents that establish corporations as fictional individuals; but at this point we're no longer talking constitution. A law is subject to change, a precedent (e.g. Dred Scott) may become a dead letter, and that's what I think should happen here. Legal fictions are where the law goes mad.

If your concern is to defend free speech for "all Americans," I believe you can do this without having to call Phillip Morris, Inc. an American.
posted by jfuller at 6:14 AM on April 25, 2001


either cigarettes are a legal product or they're not. if they're legal, you can advertise them. if you don't like your kids hearing about cigarettes, ban them altogether.

It's really not that simple. Cigarettes are a legal product for adults, but it is illegal to sell them to children. Given that children cannot legally buy them, restrictions on advertising to children seem completely reasonable, at least in theory. The restrictions in this case may be heavy handed, but that doesn't mean that they're unconstitutional. Commercial speech does not enjoy the same level of protection as political speech. And jfuller's right: it shouldn't.

The rationale for cigarette advertising has always seemed somewhat dubious to me. If, as the tobacco companies claim, they are not trying to get new smokers, then the reasons for advertising are fairly limited. You have an addictive product that people will continue to use whether you advertise it or not. And perhaps I just don't understand smoking, but does the brand of cigarette you smoke really say that much about you? Is branding as important as it is in, say, athletic shoes? Do people really switch from Winston to Marlboro because of a well-designed ad campaign?
posted by anapestic at 6:45 AM on April 25, 2001


"Do people really switch from Winston to Marlboro because of a well-designed ad campaign?"

I think most people smoke a specific brand for the taste. Personally, if I want to taste tar and toxic chemicals, I'll lick the ground of a busy parking lot. And hey, if I grind up some cough drops and spread it over the area first, I've got menthol!
posted by CrayDrygu at 7:01 AM on April 25, 2001


Surely they consist of people, though. They consist of people, people who have individual rights just like you and me. Rights that need to be protected no matter how they may have chosen to organize. Yes, even if they have organized in order to make money.

Fred, corporations don't legally consist of people. The whole point of a corporation is to indemnify the shareholders (you, me, Warren Buffett, Bill Gates) against the loss of their individual assets should the corporation go belly-up. A corporation is thus treated as an entity unto itself; it can own property, be fined, enter into contracts, etcetera. Aaron's point -- which is a good one, I think -- was that denying Phillip Morris or RJR the ability to put up billboards where they please will simply cause them to choose a real, genuine, flesh-and-blood human being to pay for the ads.
posted by snarkout at 7:53 AM on April 25, 2001


Aaron's point isn't valid. The courts have historically allowed commercial speech to be regulated because its commercial, not because a corporation is saying it. If I put my own money into billboards telling kids to Light a Lucky, that's commercial speech.
posted by rcade at 7:59 AM on April 25, 2001


Aaron. You're exactly right: all someone would have to do to get around the stricter regulations on corporate free speech that I propose, is to make the statement as an individual. Of course, as an individual, they would fall out from under the indemnities afforded corporations... I say "Go Ahead! Mr CEO, advertise using your money, and your own name... and I'll sue you personally for the damage inflicted." Fine with me.
posted by silusGROK at 10:11 AM on April 25, 2001


(tangentially: what's the constitutional position of a city? a country? Robert Pirsig -- I know, I know -- makes the intriguing point that we regard "persons" as discrete entities comprised of many layers of independent systems, but we hardly ever consider the relationship of the person to the city as we do the behaviour of, say, the protein to the person.)

It's an offence to buy cigarettes if you're under 18, yes? So couldn't you just construe advertising near schools as incitement to commit a crime? That way, the free speech issue doesn't come into it.
posted by holgate at 10:28 AM on April 25, 2001


I personally don't think our bill of rights should apply to corporations, only individual citizens.

Corporations are not people...

I won't address whether these arguments are valid because I don't really know how I feel about the corporation-as-individual issue.

BUT: what if an individual wants to take out an ad on a billboard advertising cigarettes? Perhaps ones that he makes by hand at his home and sells personally? He's an individual, not a corporation. Does he get free speech rights within a certain radius of a school or not?

RE: holgate's point about incitement: I really hope advertising (or media depictions of any time) can't be considered 'incitement.' IANAL, and I don't know the legal definition of the word, but I would hope it has a more powerful meaning.
posted by daveadams at 1:06 PM on April 25, 2001


The Free speech amendement almost seems to be as much abused as it is pursued at times. Its intentions seem crystal clear, but problems sometimes arise out of individual opinions and interpretations regarding exactly what is intended by the words “free speech” and the implications and limitations thereof. So instead of discussing the topic at hand, sometimes people seem to instead spend time discussing exactly what is meant by the words “Free Speech.” As if whoever wins that argument, will win the other.

I'm not sure if that is that case, although I am cognizant of the possible legal implications therein.

I don't live in America. I remember when Australia banned billboard advertising of tobacco and tobacco products. There was a billboard near my school, which for some obscure reason stayed up for some years even after this ruling was made. It showed a picture of Paul Hogan proudly holding aloft a packed of "Winnies 25s" (Winfield) and grinning like a lunatic. Apparently, his contribution to the campaign was an unqualified success.

In the space of a few years, all of my friend who smoked, smoked Winfields. It was particularly successful in the 15-35 demographic, if I recall.

I don’t think that the presence of Paul Hogan in an advertising campaign would have the same effect nowadays though. Unless he was to used portray the inherent dangers of smoking, or perhaps the effects of bad plastic surgery.
posted by lucien at 1:30 PM on April 25, 2001


>>BUT: what if an individual wants to take out an ad on a billboard advertising cigarettes? Perhaps ones that he makes by hand at his home and sells personally? He's an individual, not a corporation. Does he get free speech rights within a certain radius of a school or not?

Here's my view on this. In every society there is public space -- "the commons", as it were -- collectively owned and regulated by the people. There is also private space. Within the comfort of our homes -- private space -- we are entitled to do as we wish, so long as we do not wrongfully intrude either upon other people's private space, or upon public space. So within these limits we ought to be able to do any of the following: smoke crack, play unlistenable music, have wild boisterous sex, plot to overthrow the government, and put on a Pink Floyd-style light show. The public has a right to be involved only if you emit sound waves, light waves or toxic fumes (etc) outside your private space.

Just as commercial radio and television depend upon our collective willingness to rent out access to our public airwaves, so outdoor advertising depends upon our willingness to allow individuals or organizations to transmit certain light waves across the commons. We don't have to say "yes", anymore than we have to allow someone to aim his speakers out the window and read the Communist Manifesto at full volume.

Naturally, I am not advocating censorship. The point is that public space is a finite quantity, and therefore must be allocated according to some system or other. And I suggest the only fair way to allocate it is democratically. For if we allocate public space plutocratically rather than democratically, we in effect outlaw "free speech" for all except those who can pay for it.

The bottom line: If a community decides to regulate outdoor advertising -- or ban it altogether -- that is their right. The same applies to other kinds of visual pollution (via light waves), as well as noise pollution (via sound waves) that impinges upon the public sphere.
posted by johnb at 2:31 PM on April 25, 2001


On johnb's point: it reminds me that there's no constitutional right in the US to silence. And, impishly, makes me wonder whether that's the reason why Americans are stereotyped as loud and incessant: that they're unconsciously demonstrating -- and thus protecting -- their right to free speech by filling as much air as possible.

ahem.
posted by holgate at 2:36 PM on April 25, 2001


The Free speech amendement almost seems to be as much abused as it is pursued at times. Its intentions seem crystal clear, but problems sometimes arise out of individual opinions and interpretations regarding exactly what is intended by the words “free speech” and the implications and limitations thereof

I'm sure I don't know what you're getting at. Since you seem to have the answer, why don't you enlighten us? What exactly was intended by the free speech part of the First Amendment?

Did it just mean an individual, speaking his mind on politics and policy with no money involved anywhere in the process? Does it apply to things I pay for, like billboard space, web sites, a spot on TV, a self-published book? Does it apply to computer source code, which may contain human-readable information, but is generally intended as instructions to a machine? Can I say I hate an individual? Can I recommend you buy and smoke cigarettes? Can I advocate for the banning of free speech? Can I purchase a 30-minute spot of prime-time television to demonstrate my point that the music industry is polluting the minds of our children with their violent misogynistic lyrics? Can I produce an album with violent misogynistic lyrics? Can I write a poem about how much I hate gay black Jews and wish they were all dead? Does it apply to knowledge that I may have about a certain process that a company depends on for its sole profit? Does it give me the right to talk about a rumor I heard that Julia Roberts was once in a porno movie smoking crack and bribed President Reagan to pardon her murderer mother with the money she made?

I guess you just weren't clear enough for me.
posted by daveadams at 10:29 PM on April 25, 2001


Could the ability to avoid incriminating yourself in a court of law be construed as a constitutional right to silence, given a reasonably tight set of circumstances?
posted by cCranium at 5:52 AM on April 26, 2001


Hi Dave. Yes, I’ve read your post. Initially I found it a little confusing also, however I think I am nearer to understanding you now.

I disagree with your assumption:

"Since you seem to have the answer, why don't you enlighten us?"

Your entire post is framed around that premise, and as it's not true (quite the opposite in fact) I'm not sure if you still wish to continue discussing this matter with me. I would certainly be more than happy to do so, feel free to email me anytime.

I notice my post followed yours in this thread. I should make the point that that was accidental. Although I read your previous post with interest, I was in no way replying to it.
posted by lucien at 6:35 AM on April 26, 2001


Lucien, I didn't mean to sound rude, I was just honestly asking. When I first read your post, I got the impression that you thought the First Amendment was awfully clear. Based on your last post, I can see that's not what you meant. Still, I think all of my questions are good ones to ask oneself when thinking about this issue. It probably doesn't apply outside the US for obvious reasons. :)

So, I apologize if I seemed harsh. I couldn't find a way to make it sound any nicer. Text is such a difficult medium of expression. :)
posted by daveadams at 7:54 AM on April 26, 2001


Thanks for clarifying that Dave. Do I think the First Amendment is crystal clear? That’s definitely a question that I can answer. No, not at all. So my intention was not to discuss Free Speech reguarding this issue at all, but simply concentrate on what has occurred here in the past. But since you bring this question up specifically, here's my take on it.

The questions you put are pretty universal. Although not all countries have a constitution, that does not exclude them from believing in the principles of free speech. However as I pointed out, it's no doubt an important question for the possible legal implications of this particular case.
posted by lucien at 5:53 AM on April 27, 2001


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