Limiting the pitch:
Conrad, Mark
CIGARETTE COMMERCIALS LIMITING THE PITCH TOMBSTONE ADS FOR COFFIN NAILS The late Supreme Court Justice and First Amendment absolutist Hugo Black once observed that a door-to-door seller of pots...
...Why should a dangerous product be promoted for any reason...
...Finally, the legislation is "not more restrictive than necessary," since it does not ban print advertising, or even limit its textual material...
...It devised a somewhat vague test tailor-made for academicians and sophists...
...Yet in practice, it is not difficult to tell commercial speech from political and other discourse...
...Indeed, tobacco ads in particular are a justifiable target for regulation...
...The latest Federal Trade Commission figures show that $2.5 billion was spent in 1987 for tobacco advertising and promotions as compared to $ 1.2 billion in 1980 and $361 million in 1970, despite (or more likely because of) a decline in domestic sales since 1981...
...While courts expanded the scope of political speech protection since the 1920s, commercial speech was hamstrung by the unanimous 1942 decision of Valentine v. Chrestensen, in which the Supreme Court upheld a New York regulation prohibiting "handbills, circulars...
...Since he uttered those words in a 1951 decision, such merchants-and their advertisers-not only hawked pots, gadgets, and other wares but have been crowned with a constitutional right to do so...
...Of course, public attitudes and governmental policy will contribute heavily to the enactment of restrictions on tobacco advertisements...
...This provision- derived from earlier legislation proposed by cosponsors Mike Synar (D-Okla...
...Thorny is an apt description of commercial speech law...
...Last month, Congressman Henry Waxman (D-Calif...
...This has opened the door to greater government restrictions on advertising...
...The test appears to have been a compromise between commercial speech absolutists and less doctrinaire members of the court-theoretically precise, yet difficult to apply...
...along with twenty-three cosponsors, introduced a comprehensive bill to greatly restrict tobacco advertising, by prohibiting the use of any "human or cartoon figure, tobacco product trademark, or picture, other than the picture of a single package of the tobacco product...
...According to Waxman, the goal of this legislation is to "stop tobacco sales to youth and force tobacco companies to tell the truth about the health effects of their products...
...A "tupperware party" led by a representative of a firm that sells dishware to college students violated that ordinance...
...The increases in advertising are even more significant, since cigarette ads have been prohibited from radio and television since 1971...
...The last element-the "not more restrictive than necessary" requirement- seemed to impose a demanding standard that made it quite difficult for commercial speech regulations to pass muster...
...If cigarettes cause such health dangers, the question becomes why are they allowed to advertise so freely...
...After subsequent courts began to chip away at the Valentine rationale, commercial speech became constitutionalized in 1976 when the Supreme Court ruled in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council that a state ban on the advertising of prices of prescription drugs by pharmacists was unconstitutional...
...Hearings on the bill took place earlier this month...
...A limitation of alluring advertisements displaying attractive men and women puffing would "directly advance" the interest to limit new smokers, particularly young people...
...after Fox, a court could easily dismiss such a claim...
...At a time of rising public health and safety concerns over tobacco products, the advertising of these items has come into question...
...Newspapers and magazine advertisements account for one-quarter of the 1987 total, or about $412 million...
...Smoking is hazardous to your health: causing lung cancer and other dangerous diseases that account for 390,000 deaths a year...
...Over a quarter century after the surgeon general's report and almost two decades after being banned from the broadcast media, tobacco companies, despite (or because of) declining numbers of smokers, spend billions for advertisements in the print media...
...Known as the Central Hudson test (after the decision of Central Hudson v. Public Service Commission), it applies only to "truthful speech" and requires the state to show: a "substantial government interest for regulating the speech...
...The importance of the decision in favor of regulation in Fox is that it answered the question of how to interpret Central Hudson, and did so in a more practical manner than prior courts...
...The answer lies in recent First Amendment interpretation...
...Speaking in often sweeping language, the Court considered "truthful" advertising part of the "free flow of information" in which the consumer has more than just a passing interest...
...This compares with $45 million in 1970, or a ninefold increase, according to the FTC study...
...Although advertising (known in legal circles as "commercial speech") only became an official member of the First Amendment club in 1976, the judiciary has, until very recently, given Madison Avenue a great deal of protection, often preventing state and federal governments from regulating it...
...If adopted, future tobacco ads would look like the those seen for stock and bond offerings in the financial pages of the local newspaper...
...mark CONRAD Mark Conrad teaches law at Fordham University's Graduate School of Business.duate School of Business...
...Of course, the legislation, if passed by both houses (still by no means guaranteed because of the continued power of the tobacco lobby and representatives from tobacco-producing states) and signed by the president (also by no means assured) would be able to withstand an inevitable constitutional challenge...
...Essentially, a university-wide ban on conducting "commercial activities" in student dorms was upheld as constitutional in a 6-3 opinion...
...Shouldn't smokers be encouraged to stop the habit, not be enticed to use one deadly brand over another...
...Of course, one cannot say precisely what the Founding Fathers would think about such speechmakers...
...Fox now gives state legislatures and Congress the chance to draft meaningful regulations to limit, maybe even bar, tobacco advertising and to restrict alcohol commercials...
...A Supreme Court decision that received little notice last year may signal a significant shift away from carte blanche protection in favor of more reasonable governmental regulation of commercial speech...
...Although the bill would not restrict the textual content, it would greatly reduce the "allure" of many ads, which often feature attractive men and women and somewhat seductive or athletic poses...
...Cutting through the legal niceties, Fox means that commercial speech still has constitutional protection, but it is not effectively regulation-proof...
...CIGARETTE COMMERCIALS LIMITING THE PITCH TOMBSTONE ADS FOR COFFIN NAILS The late Supreme Court Justice and First Amendment absolutist Hugo Black once observed that a door-to-door seller of pots has no constitutional right to hawk his wares...
...Although the tobacco industry claims that their ads do not intend to seek new smokers, but are just for brand identification (and there are marketing studies bolstering their position), that begs the question...
...If deemed to be misleading, it has no constitutional protection at all...
...Justice Scalia, writing for the six-Justice majority, essentially adopted the less onerous standard...
...that the regulation "directly advances the government's interest...
...former Justice Potter Stewart's famous definition of obscenity also applies to commercial speech: You know it when you see it...
...It goes without saying that the state interest in protecting children (or adults for that matter) from smoking is not only substantial, but compelling...
...In 1980, the Court articulated a method of review, couched in terms of a "balancing" between the right asserted and the state's interest in regulating that right...
...and that it is not "more extensive than necessary to serve that interest" to be able to survive constitutional attack...
...Louis Sullivan, the head of the Department of Health and Human Services, to members of Congress, the time is politically ripe for restricting tobacco advertising from the nation's newspapers, magazines, billboards, and stadia...
...Fox all but guarantees that...
...or any other advertising matter in or upon any street...
...and Thomas Luken (D-Ohio)-would require pictureless or "tombstone" ads essentially identifying the brand...
...Selling sneakers is just not the same thing as advocating a change in the capital gains tax...
...the restriction may not be the most limited possible, but has to be sufficiently "narrow" and "direct" in scope to serve as a direct connection between the restriction and the goals it purports to serve...
...To paraphrase Justice Black: there should not be a blanket right for such merchants to hawk such wares...
...Almost forty years and many billions of dollars later, the freedom of speech protection originally created to protect the town crier or Communist revolutionary now applies to the Marlboro Man and Budweiser's Spuds MacKenzie...
...Even defining the term is tricky: some courts considered it "expression related solely to the economic interests of the speaker and its audience" (which could probably include a presidential campaign appearance on the subject of tax reform), while others have characterized it as "speech proposing a commercial transaction" (which could exempt the series of General Electric ads that "bring good things to life...
...From the recent pronouncements of Bush administration officials like Dr...
...Yet, in our consumer-driven and image-conscious society, it is no surprise that advertisers-who in the process of selling the product also subsidize our media-have become among the most powerful purveyors of information in American society...
...Fortunately, not only are the legal times changing, but also the political tides may be turning...
...Despite the less than earthshaking facts, the high court may have accepted the case to try to find a way to solve the thorny problem of the protection of commercial speech...
...State University of New York v. Fox involved trivial, even rather humorous facts...
...But the Supreme Court's second thoughts about a restrictive and intractable constitutional standard in an area of dubious constitutional value will set the wheels of legislation turning to chart an evenhanded and reasonable course protecting the public from the purveyors of disease and death...
...The bill imposes fines up to $ 100,000 per day for each violation...
...Before Fox, some clever tobacco industry attorney could argue that the restrictions were not the most limited possible to achieve their goals...
...The Waxman legislation also prohibits tobacco advertisements in sports stadiums, placement of a tobacco product in movies, television shows, or other forms of entertainment for a fee, requires states to adopt legislation prohibiting sales to young people under the age of nineteen, and restricts sales through vending machines...
Vol. 117 • August 1990 • No. 14
