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GUEST OPINION: Tobacco case: Feds’ warnings went too far

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By KEN PAULSON
First Amendment Center
The federal government can require that tobacco companies warn the public about health hazards, but it can’t force them to scare smokers out of the habit.

That was the finding recently by Judge Richard J. Leon of the U.S. District Court in Washington, D.C., who struck down a Food and Drug Administration rule as a violation of the First Amendment. Leon had earlier issued a preliminary injunction to prevent the FDA from requiring the new warning labels on cigarette packs.

Though consumers are accustomed to text warnings, the new rule was a dramatic escalation, requiring graphic and sometimes grotesque images along with the words. Images of an autopsy, a tracheotomy hole, diseased lungs and the image of an infant being surrounded by smoke from his mother would be dominant, with warnings on the top half of the front and back panels of all cigarette packages and the top 20 percent of print cigarette ads.

Judge Leon declared the rule unconstitutional because it allows the government to force cigarette companies to carry a government message that goes well beyond a simple warning.

“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,” Leon said in his decision.

Under the First Amendment, Americans are free to speak, but they’re also free not to speak. Requiring a corporation to state something against its will is called compelled speech. It’s only permissible with the narrow purpose of warning consumers.

Leon saw the expanded labels as moving from warning to startling the public. He pointed out that the labels were not inherently factual and that the images were enhanced to give the photos and graphics more emotional impact.  All this, he said, exceeded government’s power.

Leon did suggest, however, that a less-ambitious label plan might withstand constitutional scrutiny.

“Specifically the Government could reduce the space appropriated for the proposed ‘warnings’ to 20 percent of the packaging or require ‘warnings’ only on the front or back of the packaging,” he wrote. He also suggested that ensuring that the graphics conveyed “only purely factual and uncontroversial information rather than gruesome images” might allow a new label rule to be upheld.

Ken Paulson is president and chief executive officer/First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and USATODAY.com.