The 1st Amendment
guarantee of freedom of speech means we have to put up with
all sorts of messages from people whose views we find vile,
offensive, sickening and even dangerous. Nazis, communists,
pornographers, World Wrestling Federation stars and Bill
O'Reilly are all free to speak. But when it comes to another
despised minority, the tobacco industry, the state of
Massachusetts has pursued a simple policy: Shut up.
It thought that was permissible because the censorship
affected mere "commercial speech." But last week, the U.S.
Supreme Court said commercial speech is real speech, deserving
real protection. Even cigarette companies can't be silenced
just because some government thinks we'd be better off not
hearing from them.
The mainstay of the
Massachusetts policy, struck down by the court, is a ban on
outdoor advertising for tobacco products within 1,000 feet of
any playground located in a park or school--a regulation that
puts up to 90 percent of some cities off-limits. The
regulation also covers signs located inside stores that are
visible to passersby, even if they contain nothing but prices.
Any store in these zones is allowed to have just one
outward-facing sign--black and white, no more than 576 square
inches in size and stating, "Tobacco products sold here."
The supposed point of all these rules is not to suppress
free speech but to prevent "unfair or deceptive" advertising.
What's unfair about a Marlboro billboard or a sign publicizing
the price a store charges for a carton of Virginia Slims? The
deception, it seems, is that the forbidden ads might be seen
by children. Kids aren't allowed to buy these products, but
they might be lured by the ads into trying. So any tobacco ad
that might reach a youngster is somehow dishonest. Or
something like that.
But the real point is to suppress communication because the
government thinks it might have the wrong effects. As
then-Atty. Gen. Scott Harshbarger said when he issued the
regulations in 1999, "These landmark rules will be one more
step toward denying Big Tobacco new customers in
Massachusetts. When the 1999 school year starts, our children
will no longer be bombarded with highly visible enticements
that are designed to make smoking seem attractive and cool."
Ads that make smoking seem nauseating and destructive are
allowed. Ads that make it seem attractive and cool are not.
Only in the commercial realm would anyone even try to defend
this approach, which amounts to gagging those with one point
of view.
Of course children are already bombarded with highly
visible enticements for other products, many of which they are
not old enough to use--beer, cars, R-rated movies, mortgage
loans and the like. If Massachusetts wants to shield kids from
all of these appeals, it had better start digging a lot of
caves to house its juvenile population.
Commercial speech is certainly subject to regulation when
it's false or deceptive. But if the state were merely
concerned about potential fraud, why would it ban accurate
price notices in the forbidden areas? Or color signs? Any
promotion of tobacco products is banned, regardless of its
content.
Massachusetts can insist that all tobacco ads are
misleading by their very nature, just as it can pretend that
the Red Sox won last year's World Series. But saying it
doesn't make it so.
The state went too far, said the court in an opinion
written by Justice Sandra Day O'Connor, because "tobacco
retailers and manufacturers have an interest in conveying
truthful information about their products to adults, and
adults have a corresponding interest in receiving truthful
information about tobacco products." Claiming that the state's
goal is to protect the little ones doesn't excuse the
suppression, since the regulations "reduce the adult
population to reading only what is fit for children." The
state's approach was so egregious that all nine justices found
it unconstitutional.
To prevent kids from becoming smokers, governments have all
sorts of tools at their disposal. They can ban vending
machines in places open to children, outlaw possession of
tobacco by minors, mandate stiff penalties for retailers that
make illegal sales, and prohibit self-service displays in
stores. Regulations like those curb behavior without policing
speech. They serve the sensible purpose of protecting children
without having the obnoxious effect of interfering with the
freedom of grown-ups.
But interfering with the freedom of grown-ups is not an
unintended side effect of the anti-tobacco crusade: It's a
conscious purpose. And censorship that would be regarded as
intolerable in the political sphere is passed off as a
perfectly acceptable weapon here, because those cigarette
companies are so greedy and evil.
Former Atty. Gen. Harshbarger assured the people of
Massachusetts that his restrictions on tobacco ads didn't
violate anyone's constitutional liberties. If you're looking
for deceptive appeals, you can start with that one.
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E-mail: schapman@tribune.com
