RJ Reynolds v. FDA and the Hidden Danger of Denying Free Speech Protection to Corporations (Update: Althouselanche!)
[Guest post by Aaron Worthing. Follow me by Twitter @AaronWorthing.]
Update: Althouse links, writing: “Aaron Worthing has an excellent post about the litigation over the FDA rules requiring new warning labels on cigarettes.” Thank you for that high praise.
Every now and then I see a case or an issue, that I intend to look into but then for one reason or another, I can’t find the time when the issue is still fresh. That was definitely the case in the recent litigation entitled RJ Renyolds et al v. the FDA et al., so today when I saw that the Federal Government was appealing this decision, I thought this was a good excuse to finally read the decision and see if I had something interesting to say about it. And what do you know, there is something interesting there…
Here’s what is going on in the case. Congress passed a law demanding that the FDA come up with new graphic warning labels for cigarettes—graphic, as in using pictures. They would be required to cover at least 50% of the front and back of every cigarette package and 20% of all advertisements. And here is what the FDA came up with:
And this too:
That comes from a New York Times story whose headline succinctly captures the goal of the new warnings: U.S. Releases Graphic Images to Deter Smokers. They understood intuitively that the purpose of these images was not to inform people but to persuade them. Isn’t that obvious to you? For instance, taking the 8 images, look at the second from the left on the top, showing a crying woman. This conveys no information about the effects of cigarette smoke, it just makes you imagine how horrible the people you love would feel if you died. Similarly with the baby on the bottom left, it’s not information, it’s a guilt trip. And the one right next to it, is simply a guy announcing he is quitting (or turning into the lamest superhero ever).
And guess what? That is sort of a problem, under the First Amendment, which is what led the Reynolds court to grant the tobacco companies an injunction preventing enforcement of this new labeling rule. Judge Leon’s decision is well written and I believe lay people will get what he is saying if you decide to read it, but let me sum it up. Generally most instances of coerced speech is subject to the strict scrutiny standard requiring that the rule be narrowly tailored to serve a compelling governmental interest. But there is a limited exception to that rule in relation to so-called “commercial speech” where the government can compel people and companies selling products to provide truthful and uncontroversial information about those products. That is how, for instance, the FDA is allowed to force food companies to put nutrition labels on your food packages.
But because these graphic ads crossed the line from merely providing truthful and noncontroversial information to advocacy, it could not fit into that exception. From the opinion:
Unfortunately for the Government, the evidence here overwhelmingly suggests that the Rule’s graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard. Indeed, the fact alone that some of the graphic images here appear to be cartoons, and others appear to be digitally enhanced or manipulated, would seem to contravene the very definition of “purely factual.” That the images were unquestionably designed to evoke emotion – or, at the very least, that their efficacy was measured by their “salience,” which the FDA defines in large part as a viewer’s emotional reaction… further undercuts the Government’s argument that the images are purely factual and not controversial. Moreover, it is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start, smoking: an objective wholly apart from disseminating purely factual and uncontroversial information. Thus, while the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company’s advertising space for Government advocacy can be frustratingly blurry, 19 here – where these emotion-provoking images are coupled with text extolling consumers to call the phone number ” 1 -800-QUIT [NOW]” – the line seems quite clear.
So we shift to the strict scrutiny test which requires it to be narrowly tailored to serve a compelling interest. Most lawyers will tell you that regulations almost never survive this test and for good reason. In this case, the court found that the proffered reason—to give people information—was false and that the actual purpose of this regulation was to get people to quit, which was impermissible. Particularly the government’s claim that this was designed to reach illiterate people seems to be belied by the second from the left on the bottom, consisting of little more than a man wearing a T-shirt with words written upon them. The judge also noted that the sheer size of these ads meant that they were not narrowly tailored.
But then again, if you are one of the myriad opponents of the Supreme Court’s decision in Citizens United, the path to victory is elegantly simple. There are of course two camps among opponents of that decision. The first are those who declare that no corporation should have any protection under the First Amendment (such as, paradoxically, the NYT Corporation). The second are those who, like Justice Stevens think that there is a limited exception carved out for the institutional press and only the institutional press under freedom of the press. Of course I have long said that the second notion can be defeated by common sense, or rather by Common Sense, by pointing out that under this reading of the press clause Thomas Paine’s famous pamphlet would not be protected from censorship. Plainly that was not the founders’ intent.
But right or wrong, those are the two camps and both would grant an easy victory for the FDA under their legal theories. As corporations outside of the “institutional press” the Tobacco companies have no right to freedom of expression under either approach—including the right to be free of compelled expression—and thus can be forced to say whatever the government wants, case closed. And maybe you don’t like smoking so much that you think that this would be just a dandy result.
But that would be because you are failing to see the bigger picture. Today we are talking about ads that advocate the end of smoking. Tomorrow the required speech might be this:
If RJ Reynolds is categorically barred from claiming that it has any right to refrain from speech, then what is left to prevent the political party presently in power from requiring all corporations (except maybe the institutional press) to spend money to promote their favored causes and even their candidates to the exclusion of opposing positions and candidates?
And that is the hidden danger lurking in the position of those who oppose the outcome in Citizens United. Rather than getting corporations out of politics entirely as they claim, they are opening the door to politicians conscripting corporations into supporting their campaigns. The idea that a large class of speakers in our society should be unable to avail themselves of First Amendment protections is downright pernicious and represents yet another reason why the Supreme Court ruled correctly in that case.
[Posted and authored by Aaron Worthing.]