The Continuing Re-Definition of "Speech"

Nov 13th, 2011
by F. Grey Parker

As an American smoker who has also spent time in Europe and in Canada, the concept of dramatically more discouraging messaging on cigarette packages is not alien to me. In fact, it makes a great deal of sense. The labeling that was supposed to begin accompanying American tobacco products, in much the same way that these other countries have demanded, is now in limbo due to the amazing logic of one American judge.

Via the NY Times:

"In a preliminary injunction, Judge Richard J. Leon of United States District Court in Washington ruled that cigarette makers were likely to win a free speech challenge against the proposed labels, which include staged photos of a corpse and of a man breathing smoke out of a tracheotomy hole in his neck."

The decision needs to be read to be believed:

"The FDA conveniently refers to these graphic images as "graphic warnings." While characterizing the mandatory textual statements as "warnings" seems to be a fair and accurate description, characterizing these graphic images as "warnings" strikes me as inaccurate and unfair. At first blush, they appear to be more about shocking and repelling than warning. Accordingly, I will refer to them simply as graphic images, and set this self-serving "warning" label aside for closer analysis on another day." EMPHASES OURS

Welcome to the "objective" legal mind of Judge Leon.

"Appropriating the top 50% of the front and back of all cigarette packages manufactured and distributed in the United States is hardly a directive narrowly designed to achieve the Government's purpose (whatever it might be)." EMPHASIS OURS

More from the NY Times:

"The judge ruled that the labels were not factual and required the companies to use cigarette packages as billboards for what he described as the government's "obvious anti-smoking agenda!" EMPHASES OURS

The exclamation point is in the decision. The judge seems to be, as if in the midst of an epiphany, crying out, "HA! Got ya!" Indeed. He equates the fulfillment of a congressional mandate with sinister bias. Debi Johnson-Champ parsed this nugget in near disbelief:

"To repeat: the government was accused of having an “obvious anti-smoking agenda.” Really? Is that what the Tobacco Control Act involves? What else would a tobacco control act involve but an obvious anti-smoking agenda? The title speaks volumes. The actual Act can be reviewed here."

More from Judge Leon's decision:

"Unfortunately for plaintiffs, however, the standard for irreparable economic harm in our Circuit is so demanding that the proof of even tens of millions of dollars in economic detriment does not necessarily suffice."

It is as if Judge Leon came right out and said, Sorry guys, even I have to find against you on grounds of economic harm because it so little relative to your bottom line. I got an idea, though...

"...plaintiffs are likely to prevail on the merits of their constitutional claim, and where their First Amendment interests are either threatened or in fact being impaired at the time relief is sought, there is more than a sufficient showing of irreparable harm. To that end - and contrary to defendants' protestations otherwise, the harm plaintiffs suffer is, in fact, "serious in terms of its effect," precisely because their First Amendment rights have been abridged. Such harm is not, as defendants conveniently claim, merely "the ordinary costs of  complying with regulations." It is the residual effect of unconstitutionally compelled commercial speech designed to advocate, at a company's expense, a competing policy agenda." EMPHASES OURS

The public interest, or, if you prefer, the promotion of the general welfare, in the eyes of this judge, is now just another "agenda" to be trumped by the demands of private capital.

Let's get real.

We're not talking about pancake batter here. Nicotine is a drug. Nicotine is a debilitating and addictive drug, at that. What's more, nicotine serves no broad purposeful good. Its negatives are not a "side-effect" to be weighed against some countervailing benefit. Also, the FDA is the established American regulatory body with jurisdiction over drugs. That it has not banned tobacco outright is the result of years of questionable exemptions and protections premised upon dubious arguments about tradition or economic impacts.

As for the charge that the warnings are "not factual?" It is absurd on its face. How many tracheotomies are performed every year in America that don't involve smoking compared to those that do? How many cases of lung cancer and early death are unrelated to smoking compared to those that are?

I have a "modest proposal" for the FDA; spare the taxpayer expense, abandon the appeals process and, at the same time, send a tribute to Judge Leon... Force America's nicotine pushers to simply label the package with these words in big, bold type:

"THIS SHIT WILL FUCKING KILL YOU."

It's just a suggestion. Of course, Judge Leon might argue that it's not "factual." Or, at the very least, that it is just a "competing policy agenda."