In defense of Big Tobacco

Not that anyone seems to have noticed, but the cigarette manufacturers scored a major victory this week. And I’m taking their side.Say what?This stance isn’t easy for me. I’ve covered Big Tobacco in the past, and the damage it wreaks is undeniable. Cigarettes, after all, are the only consumer product that kills its customers when used as directed. The annual American death toll is roughly 440,000, and the annual tobacco-related health care tab is roughly $100 billion. And the death merchants are a tad short on credibility as well; back in the mid-’90s, five tobacco CEOs swore under oath on Capitol Hill that nicotine was not addictive – only to return to Capitol Hill four years later and confess that it was.Nevertheless, I sympathize with their current opposition to the new warning labels that the feds intend to slap on every package of butts. Not because the labels are so graphically gross (although they certainly are), but because the government may well be violating an important tenant of free speech. After all, the First Amendment is designed to protect even the most odious among us, even the makers of cigarettes.And earlier this week, in a scathing ruling, a federal judge in Washington agreed. He has halted the new warning labels, perhaps indefinitely. The Food and Drug Administration, acting at the behest of Congress, has come up with graphic imagery to replace the text warnings that have been affixed to cigarettes packages for the last quarter century. Under the FDA plan, the companies would be forced to devote roughly 50 percent of package space to various arresting visuals, including: a color pic of a guy exhaling cigarette smoke through a tracheotomy hole in his throat; a pair of diseased lungs next to a pair of healthy lungs; a bare-chested male cadaver with chest staples; and a cartoon of a premature baby in an incubator. The images would appear with a phone number, 1-800-QUIT-NOW.These images (similar to those that appear on cigarettes in Canada), as well as their prominence on half the package, are clearly designed to freak out smokers to the point where they resolve to quit the habit. A worthy goal, certainly. But, as Judge Leon pointed out, there’s a First Amendment problem with compelling the makers of a legal product to essentially speak out so strongly in opposition to the very product they are trying to sell. In his words, this is “unconstitutionally compelled speech.”Even if you detest Big Tobacco, you can’t ignore the principle at issue here. As Ken Paulson, president of the First Amendment Center, rightly remarked the other day, “Freedom of speech includes the right not to say nothing at all.” The U.S. Supreme Court has long ruled that schoolchildren can’t be forced to recite the Pledge of Allegiance, people can’t be forced to display a state motto on their cars, and citizens can’t be forced to utter loyalty oaths. The principle is that Americans can’t be compelled to speak against their own interests; as Judge Leon noted this week, tobacco companies would be compelled to speak against themselves on 50 percent of their own “advertising space.”So he slammed on the brakes. The FDA imagery was being readied for a 2012 debut, but his injunction will surely slow the process. His ruling paves the way for more judicial review, which means that the anti-tobacco groups will be forced to stew in frustration a lot longer. So it goes. The First Amendment has often tested our patience, like when the ACLU invoked it back in the ’70s to defend the free-speech rights of tinpot Nazis who sought to march in Skokie, Illinois. But, in the words of U.S. Supreme Court Justice Robert Jackson back in 1943, the First Amendment is the “fixed star in our constitutional constellation.” And unless the government bans cigarettes entirely, those who make the legal product deserve the same constitutional protection.——-Speaking of key judicial rulings that appeared under the radar this week, check out the federal appeals court decision that upheld Barack Obama’s health care reform law. The Tuesday ruling was written Lawrence Silberman, a conservative icon appointed to the federal bench by Ronald Reagan. Heads have exploded on the Republican right. He’s the second conservative federal appeals judge in the last five months to rule in favor of Obama. I wrote yesterday about Silberman’s decision in this newspaper column.——-Follow me on Twitter, @dickpolman1