STATEMENT OF FLOYD ABRAMS
before
UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY
CIGARETTE ADVERTISING AND
THE FIRST AMENDMENT TO THE CONSTITUTION
February 10, 1998
STATEMENT OF FLOYD ABRAMS
before the
UNITED STATES SENATE COMMITTEE ON THE JUDICIARY
Mr. Chairman and distinguished members of the Judiciary Committee, I thank you for inviting me to appear before you today to comment on the First Amendment implications of the Proposed Attorneys General Tobacco Settlement as it applies to cigarette advertising.
I am a lawyer specializing in First Amendment and other constitutional issues. In that respect, I offer two introductory comments at the outset. The first is that I do not appear today on behalf of any client or, in fact, for the purpose of seeking to persuade you to take any particular c ourse of action with respect to the proposed settlement. I am here because you asked me for my views, and the views I offer today are my own.
You should be advised, however, that I currently represent a coalition of national advertising associations and a group of New York merchants in a challenge to New York City's recently enacted restrictions on outdoor tobacco ad vertisements, restrictions which would have the effect of banning all such advertising in over 90% of New York City. You should also know that on a few occasions in the past, I represented tobacco companies with respect to First Amendment issues, most recently two years ago when I was asked to submit and did submit comments to the FDA concerning the constitutionality of the FDA's proposed rule restricting cigarette advertising. Although I ceased representing any tobacco company after making that submission in early 1996, I adhere to the views I expressed before the FDA that based upon then-existing (and, I would now add, current) Supreme Court precedent, it is unlikely that, at the end of the day, the FDA's proposed regulations could survive First Amendment scrutiny.
I believe this conclusion applies with even greater force to the proposed settlement's far broader restrictions on advertising — if, that is, they were to be enacted by Congress into law. That is particularly true n light of the most recent Supreme Court decisions relating to commercial speech. While it is true that completely voluntary consent decrees and contractual obligations agreed to among the parties should raise no First Amendment issues at all (since parties are free to waive constitutional rights), any legislation of Congress which would purport to do by law what the proposed settlement would do by agreement in terms of restricting constitutionally protected commercial speech is, in my estimation, destined to be held unconstitutional for the reasons set forth below. At the very least, it is my view that even if such legislation might pass constitutional muster, such grave First Amendment questions would be raised that on that prudential ground alone, I would urge both this Committee and the Congress not to start down a path so obviously fraught with avoidable First Amendment land mines.
The Department of Justice has defended the FDA's proposed restrictions on cigarette advertising in litigation by arguing that they tread as close to constitutional boundaries as possible without crossing them. Repeatedly, the government has characterized the FDA regulations as a "carefully limited exercise in regulation that has been shaped by close attention to the constitutional values underlying" Supreme Court precedent; as "carefully tailored to preserve, rather than impair" the flow of advertising to adults by limiting the ban on outdoor advertising to 1,000 feet around schools and playgrounds and limiting text-only requirements to periodicals read by youngsters. The regulations were further described by the Department of Justice as "designed to preserve" the free flow of commercial information to adults, and the result of "an intensive effort to identify aspects of tobacco advertising that are particularly influential on children, but do not play a significant role in the informational function of advertising that the First Amendment protects."
Whatever merit these arguments may have with regard to the FDA regulations (and I remain unpersuaded by them), they simply cannot be made in defense of key provisions of the proposed settlement, which go well beyond the scope and effect of the FDA rulemaking by, among other things:
Completely banning the use of human images and cartoon characters in all tobacco advertising and on tobacco product packages;
Banning all outdoor tobacco product advertising, including in enclosed stadiums as well as all brand advertising directed outside from a retail establishment; and
Prohibiting all tobacco product advertising on the I nternet unless designed to be inaccessible in or from the United States
Let me start at the beginning. The fact that the proposed settlement restricts advertising for cigarettes does not and could not exempt it from constitutional scrutiny. Cigarette advertising is accorded no less First Amendment protection than any other truthful advertising for a legal product. Rubin v. Coors, Inc., 115 U.S. 1585, 1589 n.2 (1995). To some, that may be an uncomfortable reality, but reality it is. Less than two years ago, the Supreme Court held that the Constitution provides the same protection for liquor price advertising as for any other commercial message. 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996). The Court made equally clear in the same opinion that the fact that a legislature could ban an activity considered to be a "vice," such as liquor or gambling or cigarettes, does not mean that it has power to do away with speech about that activity so long as it remains legal. Id. In fact, the Supreme Court has reaffirmed repeatedly in recent years that even purely commercial speech enjoys a significant degree of protection under the First Amendment. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996); Coors, 115 S. Ct. 1585.
In order to justify a limitation on commercial speech, the government must assert a substantial interest and affirmatively prove through real evidence that its regulation directly advances that interest in a material way and suppresses no more speech than is reasonably necessary. E.g., 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1509 (1996) (plurality opinion); Edenfield v. Fane, 507 U.S. 761, 771 (1993). In recent years, the Supreme Court has repeatedly struck down restrictions on commercial speech under this standard. See Liquormart, 116 S. Ct. at 1509-10; id. at 1521 (O'Connor, J. concurring); Rubin v. Coors Brewing Co., 115 S. Ct. 1585, 1592-93 (1995); Ibanez v. Florida Dept. Of Business & Professional Reg., 512 U.S. 136 (1994); Edenfield v. Fane, 507 U.S. 761, 767-68 (1993).
Of course, no substantial interest could be asserted by the government in support of
depriving adults of access to advertisements for tobacco which may lawfully be sold to them. The Department of Justice conceded as much in litigation concerning the constitutionality of the FDA rules, where, in a submission to the court, it acknowledged that adults are lawful users of tobacco products whose access to information concerning tobacco products is constitutionally protected. The FDA made the same point in explaining the purpose of its rule in the Federal Register.
Nor does the fact that the restrictions set forth in the settlement are intended to prevent children from smoking make them constitutional. To assume otherwise would be to ignore the long-standing First Amendment principal that a restriction on speech that is drafted to protect children must be narrowly drawn so as not to infringe on the rights of adults. Butler v. Michigan, 352 U.S. 380, 383-84 (1957).
The Supreme Court has never sanctioned a restriction on speech in the name of protecting children where it was not the speech itself which was said to harm or corrupt children directly by the very act of children simply reading, seeing or hearing the offensive speech, or, in the extreme case of child pornography, through participation in the industry leading to its manufacture. See, e.g., Reno v. American Civil Liberties Union, 117 S. Ct. 2329 (1997); Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989); New York v. Ferber, 458 U.S. 747 (1982); FCC v. Pacifica Foundation, 438 U.S. 726 (1978). The categories of speech thought to be directly harmful to children have been limited to pornography and other so-called indecent speech. In contrast, it has never been argued — and I believe it could not seriously be argued — that advertisements for cigarettes, divorced from whatever cause-and-effect relationship they may have with smoking itself, have a similar direct corrupting influence on children by virtue of being seen.
And even if they did, the proposed Tobacco Settlement enacted as law would still sweep well beyond constitutional boundaries. It is a basic tenet of First Amendment law that, as the Supreme Court said just last June, the interest in protecting children from harmful materials "does not justify an unnecessarily broad suppression of speech directed to adults. As we have explained," the Court said, "the Government may not reduce the adult population to only what is fit for children." Reno v. American Civil Liberties Union, 117 S. Ct. at 2346 (1997). This principle applies to commercial speech just as it does to other types of protected speech. Bolger v. Youngs Drug Products Corp., 452 U.S. 60, 71-72 (1983).
What the First Amendment specifically requires is that any regulation of commercial speech be "narrowly tailored" and its costs "carefully calculated" to accomplish its asserted purpose. Cincinnati v. Discovery Network, 113 S. Ct. 1505, 1510 n.13 (1993). By definition, regulations which disregard far less restrictive and more precise means of achieving the government's asserted objectives are not narrowly tailored. Coors, 115 S. Ct. at 1593-94; Cincinnati, 113 S. Ct. at 1510 n.13.
The sweep of the proposed settlement's restrictions on speech are in no manner tailored to its supposed aim of protecting children from the health dangers of smoking. The proposed settlement strikes well beyond the dubiously tailored FDA rule prohibiting outdoor advertising within 1,000 feet of schools, public playgrounds and playground areas of public parks to completely ban outdoor cigarette advertising throughout the United States altogether. The elimination of all outdoor advertising contemplated by the settlement seems particularly gratuitous in view of the fact that the settlement's proposed text-only requirement already would have stripped such advertising of the features thought to make it appealing to adult consumers and young people alike.
The text-only restrictions, which also sweep far beyond the proposed FDA rule, are constitutionally suspect as well. The Supreme Court has made clear that a state "may claim no substantial interest in restricting truthful and nondeceptive [commercial] solicitations to those least likely to be read by the recipient." Shapero v. Kentucky Bar Association, 486 U.S. 466, 479 (1988). Indeed, it has long been plain that "[t]he use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser's message, and it may also serve to impart information directly. Accordingly, commercial illustrations are entitled to the First Amendment protections afforded verbal commercial speech." Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 647 (1985).
By leaving cigarette advertisers unable to break through visual clutter, catch consumers' attention to distinguish one brand from another the settlement's effect — its obviously intended effect — would be to make what little cigarette advertising it permits both ineffective and virtually nonexistent. As the Supreme Court has remarked on the impact of an analogous restriction, "an advertising diet limited to such spartan fare would provide scant nourishment." Bates v. State Bar, 433 U.S. 350, 367 (1977) (rejecting argument that attorneys could be limited to advertising their names and addresses in phone books).
Here, the most obvious less burdensome means to advance the government's objectives is putting more teeth into those laws already in force which address the problem of underage smoking directly without burdening any speech directed at adults — namely, state laws prohibiting the sale of cigarettes to minors. Through better enforcement of current laws or, if necessary, stiffer penalties for offenders, child access laws can have a significant direct impact without burdening speech at all. This fact has not escaped the notice of the FDA, which itself concluded:
"Youth access restrictions have been found to be effective in reducing illegal sales and some studies have demonstrated that efforts to reduce access have led to a decrease in tobacco use by young people. In Woodbridge, IL, for example, a comprehensive community intervention involving retailer licensing, regular compliance checks, and penalties for merchant violations significantly reduced illegal sales from 70 percent to less than 5 percent almost 2 years later. Further, rates of experimentation and regular smoking dropped by more than 50 percent among seventh and eighth graders."
60 Fed. Reg. 41,322 (citation omitted; emphasis added).
Nor has it gone unnoticed by the Department of Health and Human Services, which in 1993 concluded that "responsible implementation" of effective cigarette access restrictions "is the single most important reform to improve" its citizens' health that government "could undertake in . . . the 1990s." 58 Fed. Reg. 45,156, 45,165 (Aug. 26, 1993). The Department further concluded that "[e]liminating virtually all sales [of tobacco products] to minors does not even present particularly difficult enforcement problems." Id. If that is true, the least that First Amendment case law requires is that before methods are implemented of limiting speech about a product lawfully sold to adults stricter enforcement of non-speech-threatening laws must be carried out first. Yet another less restrictive alternative would be for the government to seek to reduce underage demand for cigarettes by engaging in still more "counter-speech" of its own that would be narrowly focused on discouraging children from starting to smoke.
In the FDA proceeding, that entity offered what it called a "suggestion" that there exists "a causal relationship between advertising and youth smoking," but that hardly amounts to the sort of real evidence that is required to show that the proposed restrictions "will in fact alleviate [the problem of youth smoking] to a material degree." Edenfield, 113 S. Ct. at 1800. The FDA itself acknowledged that cigarette advertising and promotional activities at most "contribute[d] to the multiple and convergent psychosocial influences that lead children and youths to begin using these products." 60 Fed. Reg. at 41,329. But this falls far short of proof by real evidence that the alleged "pervasiveness" of tobacco advertising causes minors to begin smoking. See, e.g., Edenfield, 113 S. Ct. at 1800.
In sum, the proposed settlement's blanket restriction on all outdoor cigarette advertising and nearly all other tobacco advertising in the hope of shielding a minority of viewers from such advertising is just the sort of sweepingly overbroad rule that, if enacted into law, is most unlikely to be held to be "narrowly tailored." Zauderer, 471 U.S. at 644 (rejecting state's argument that a prophylactic rule may be applied to ads that have "none of the vices that allegedly justify the rule"). If the proposed settlement were enacted into law, I believe it would be held to violate the First Amendment. That problem is, of course, surmountable if the restrictions on speech remain part of a consensual agreement. For this very reason, the manner in which the parties have privately structured the settlement by stipulation seems to me to be a particularly rational, responsible and constitutionalway to deal with the issue.