Friday, August 24, 2012

Another example of corporate speech (UPDATED)


The DC Circuit has affirmed (in R.J. Reynolds v. FDA, No. 11-5332) the decision discussed below, which ruled unconstitutional the FDA's attempt to force tobacco companies to add large, graphic images to their cigarette packaging. Mr. Gillette discussed another free speech case involving tobacco companies here.

ORIGINAL POST (3/6/2012):

We have talked a lot about whether corporations have a First Amendment right to spend unlimited amounts of money engaging in political speech.

But last week, a district court judge in Washington D.C. tackled another aspect of a corporation's First Amendment rights: the right not to speak.

The corporations in question are about the least sympathetic corporations you can imagine: tobacco companies. They filed suit objecting to new FDA rules promulgated under the Family Smoking Prevention and Tobacco Control Act, which President Obama signed in 2009. One of the provisions of the Act is a requirement that the FDA "issue regulations that require color graphics depicting the negative health consequences of smoking" take up the top 50% of both the front and back of cigarette packages. Eventually, the FDA published nine such images, including the ones that appear inline here.

The tobacco companies objected to these images as compelled speech, in violation of the First Amendment. The law is clear that freedom of speech includes the right to refrain from speaking at all and that "[f]or corporations as for individuals, the choice to speak includes within it the choice of what not to say." Pac. Gas & Elec. Co. v.  Pub.  Utils. Comm'n of Cal., 475 U.S. 1, 16 (1986) (plurality opinion).  (The astute will notice that this decision long predates the Citizens United decision that supposedly established that corporations are people with First Amendment rights.)

The district court judge agreed with the tobacco companies. First, he dismissed the argument that the images are a kosher attempt to prevent "confusion or deception" because "the graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking."

The judge then rejected the images under strict scrutiny. There was no compelling governmental interest, he said, because "although an interest in informing or educating the public about the
dangers of smoking might be compelling, an interest in simply advocating that the public
not purchase a legal product is not." And if even if there were a compelling governmental interest, the regulations were not narrowly tailored to achieve that end simply because they take up so much of the product packaging: "plaintiffs are forced to act as the Government's mouthpiece by dedicating the top 50% of the front and back of all cigarette packages manufactured and distributed in the United States to display the Government's anti-smoking message: not to purchase this product."

The government will undoubtedly appeal and may win. But it's interesting to note that there will be no argument in this case that the tobacco companies can be forced to say whatever the government wants them to say just because they are not natural persons.

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