Cigarette makers have freedom not to speak

Friday, November 11, 2011

Freedom of speech includes the right not to say anything at all.

That’s the constitutional principle behind a U.S. district judge’s decision this week preventing the U.S. government from forcing tobacco companies to place unsettling images on cigarette packages.

The government had ordered cigarette manufacturers to design packages that included photos of cancerous lungs, oral cancer, a baby in an incubator and a corpse on an autopsy table.

Marking a dramatic escalation of the familiar warning labels, these images were clearly designed to remind consumers that cigarettes can cause illness and kill you and the people you love.

It’s one thing, though, to alert consumers to potential health hazards and another to frighten them away. Can the government compel a product manufacturer to, in effect, say, “Please put us out of business”?

U.S. District Judge Richard Leon concluded the government was going too far and issued a preliminary injunction. By demanding that these horrifying images occupy half of the package, the government was forcing cigarette manufacturers to “say” something they otherwise would object to.

What government can’t do

You won’t find many people willing to champion a horrifically addictive product that poses great health risks. But the Bill of Rights is not about what people should do. It’s about what government can’t do.

The First Amendment limit on compelling speech protects all Americans:

  • In 1943, the U.S. Supreme Court ruled that states cannot force children in public schools to salute the flag and recite the Pledge of Allegiance. Jehovah’s Witnesses had fought the requirement for religious reasons. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein,” Justice Robert Jackson wrote.
  • Citizens have the right not to display a state motto on their cars, according to a 1977 Supreme Court decision. It turns out that some of us don’t want to “Live Free or Die.”
  • The First Amendment also ensures that the government can’t force Americans to sign loyalty oaths, with rare and limited exceptions for certain public employees.


We have the right to say whatever we believe, and government has no power to compel us to speak against our will.

There have been narrow exceptions for some industries, including a U.S. Supreme Court decision in 2005 that required beef producers to fund ads promoting sales.

In this case, though, the government’s mandate is so heavy-handed that not only does it compel a cigarette company to display graphic images, but it also takes up so much space on the package that it leaves little room for the manufacturer to convey its own message.

Imagine if the same rule applied to other industries with products that pose medical risks. That fine bottle of Dom Perignon would be adorned with a photo of advanced liver disease. And would you like a side of government pamphlets with that bacon cheeseburger?

Governments have other ways to deter smoking, including public education and cigarette taxes. There’s no need to light up the First Amendment.

This article was first published in USA Today Nov. 10.

See also: Graphic images for cigarette labels put on hold and Tobacco firms smoking mad about graphic labels

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