Ashes to Ashes (123 page)

A prime example of this group’s contribution was a 1986 book of essays, edited by Tollison and subsidized by the industry, entitled
Smoking and Society: Toward a More Balanced Assessment
. In his introduction, Tollison argued that there was “a useful scholarly case to be made that the conventional wisdom about smoking behavior is either wrong, unproven, built upon faulty analysis, or pushed well beyond the point of common sense.” Tollison’s contributors conceded virtually nothing to the evidence of ravaging effects of the habit and dwelled instead on its perceived high value to users. Sherwin Feinhandler’s essay, “The Social Role of Smoking,” held that the use of cigarettes “helps the smoker cope with the demands of life, eases and promotes his or her social interactions and is a valuable aid to the establishment of a sense of identity.” At the root of “the vehemence of the antismoking campaign,” he added, was the suddenly widened context of environmental pollution, in which “the cigarette has become a tiny representation of the industrial smokestack”—in short, a scapegoat for a far more legitimate object of alarm. A more withering view of the antismoking movement was ventured by Boston University sociologist Peter L. Berger, who portrayed many of its members as “singleminded, aggressive, even absolutist;” given to the language of hyperbole
(e.g.
, smoking termed an “epidemic,” “pestilence,” and “the single most preventable cause of death”), and so consumed by their “quasi-religious goal” of robust health as “the formulaic key to a long and pleasurable life” that they were inclined to engage in “emotional violence” toward those who did not share such a “virtually sacred” goal.

Tollison himself co-authored a second and more telling volume in 1988,
Smoking and the State
, also funded by the Tobacco Institute, in which he argued that smokers willingly pay the price for the risk of damaged health and in fact make less—not more—use of welfare-state medical benefits, because they die younger than nonsmokers. He also railed against the paternalism implicit in cigarette excise taxes, aimed at protecting the “unwashed” from their “sins” and turning them into easy political targets long conditioned to hearing about the irresponsibility of their habit and thus incapable of mounting a counteroffensive.

Whatever pity had formerly been reserved for the self-destructive tendencies of smokers was transformed over the course of the ’Eighties into a growing intolerance of the sort that Tollison, Berger, and even some who were not in the tobacco industry’s pay had begun to characterize as health fascism. Energized
by the claim that environmental tobacco smoke posed a proven health peril to nonsmoking bystanders, the intensified vilification of smokers caused them to be denied the use of cigarettes while guests in nonsmoking homes (and admonished for their weakness, in the bargain), stared at and sometimes insulted in restaurants although abiding by the rules of the establishment, relegated to separate work areas, and even faced with a hiring bias on the ground that their habit made them an economically poorer risk than nonsmokers—a test rarely applied to other risky off-the-job preferences like a fat-drenched diet, mountain-climbing, or driving fast. Carrying the issue to an extreme, a few illiberal employers even required their avowedly nonsmoking employees to submit to testing of their urine for traces of metabolized nicotine. That anti-smoking sentiment might be getting out of hand was suggested in an August 12, 1991,
Time
cover story headlined “Busybodies: New Puritans,” which noted that some 6,000 U.S. companies were by then refusing to hire confessed smokers and lamented that, under the delusion that laws and restrictions were necessary to protect people from themselves, many Americans had lost sight of a bedrock national virtue—tolerance.

XII

BESIDES
the unrelenting derogation of their product and the prospect of being sued out of existence by its users, nothing alarmed the tobacco companies more during the latter part of the ’Eighties than the rising call for an outright ban on all advertising and promotion of cigarettes. The industry’s outlay for this purpose, more than $2 billion annually, was its lifeline, preserving the surface respectability of smoking by associating it with pleasurable and life-enhancing activities as a counterweight to the health charges against it.

In seeking to extend the 1971 ban on broadcast advertising of tobacco, the antismoking forces were arguing that the First Amendment ought not to serve as a license for the cigarette makers to lie and distort the truth about their deadly wares. The broadcast ban had escaped the constitutional strictures against governmentally muzzled speech because the airwaves were held to be public property and therefore subject to regulation for the common good; because electronic media suffused the popular culture, allowing impressionable children easy access; and because cigarettes were held to be a uniquely dangerous product that could not, as a practical matter, be outlawed. But to ban
all
advertising and promotion of a legal product, however dangerous, raised harder questions.

The First Amendment, clearly understood to ensure individual expression free of restraint by the state, indisputably protected political opinions, artistic statements, and assertions of religious or any other innermost convictions. But
commercial speech had traditionally been viewed as a different and lesser species, falling within the government’s constitutional powers to regulate business. Indeed, commercial speech was treated as a form of commercial activity, and thus it was of the essence that contracts, the public offering of merchandise or services, and warranties pertaining to them—all forms of communication between buyer and seller—be truthful and safeguarded by the government under its charge to protect the general welfare. Utterances by corporations were especially held subject to government regulation since, as artificial persons created mainly to make money, their speech was considered less fragile than individuals’ and their power disproportionate in the arena of ideas as well as commerce. The twentieth century witnessed a codification not only of what businesses could not say (as manifested, for example, by FTC regulations against false, misleading, or unfair advertising) but also in certain cases of the forms of speech they had to adhere to (as prescribed, for example, by the Securities Act of 1933 with regard to the public offering of securities only through a statutorily formatted prospectus, registration statement, and tombstone advertising).

Hope of extending this trend to an all-out ban on cigarette ads and promotions using brand names was dealt a blow, however, by the Supreme Court’s 1976 ruling in
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc
. upholding the previously denied right of pharmacists to advertise the price of prescription drugs. Advertising of legal products that was truthful and not misleading was entitled to First Amendment protection, the high court held, striking a balance between the public’s right to information about goods and services, the seller’s right to state it, and the government’s right to regulate commercial activity. “Advertising, however tasteless and excessive it sometimes may seem, is nevertheless dissemination of information,” the Justices wrote, and in the interest of facilitating the “numerous economic decisions” at the heart of the free-enterprise system, “the free flow of commercial information is indispensable.” But cigarette advertising, according to anti-smoking activists, conveyed precious little information and a great deal of overblown lifestyle imagery that was inherently deceitful for failing to disclose clearly the health peril from the product, thus undercutting the small statutory warning included in tobacco ads.

The commercial free-speech doctrine was elaborated four years later by the Supreme Court in a fashion that encouraged tobacco control advocates. In
Central Hudson Gas & Electric v. Public Service Commission
, the Justices struck down the effort by a state agency to encourage fuel conservation by barring a utility company’s advertisements promoting the use of electrical products; in the process the high court set down a four-part test for government-imposed restrictions on commercial speech. These could be justified only if the ads were untruthful or deceptive, or if the government had a substantial
interest in the matter, the restriction directly advanced that stated interest, and it was narrowly tailored to achieve that objective. Tobacco industry lawyers thereupon trotted out their old contention that if the avowed government interest in a cigarette ad ban was to reduce consumption, it would not advance that interest, because advertising did not broaden the cigarette market but only shifted smokers around in their choice of brands, and, besides, such a ban would plainly be too sweeping a measure, serving only to deny smokers useful information.

The Supreme Court seemed to help the industry by its 1983 ruling in
Bolger v. Youngs Drug Products
, overturning a ban on the unsolicited mailing of circulars for the sale of contraceptives, because they might fall into the hands of young people or children. The adult population could not be reduced to reading solely what was fit for children, the Justices held; only ads explicitly and exploitively directed at children could be barred. Thus, the antismoking advocates’ contention that cigarette advertising ought to be ended because it served to entice children seemed to be shaken. The tobacco industry pressed home its basic argument: If a product is legal, so must the advertising of it be.

By 1986, Congressman Mike Synar was pushing a comprehensive cigarette ad ban bill and attracting serious interest in the idea. In backing it, the American Medical Association, awakening from its long sleep on the smoking issue, commissioned a pair of top Columbia law professors, Vincent Blasi and Henry Paul Monoghan, to make the legal case for such a ban in view of the twists and turns of the Supreme Court in determining whether commercial speech merited First Amendment shielding. The professors argued that since falsity and deception were adequate grounds for ad restrictions, one needed to go no further in applying the
Central Hudson
test; cigarette advertising, flamboyantly promotional in nature, was far more deceptive than informative. And since the government had “a clear and substantial public interest in reducing cigarette consumption,” an advertising ban made much more sense as public policy than “a vastly more intrusive interference with personal freedom” in the form of banning the product itself.

The Supreme Court zigzagged once more in the 1986 5-to-4 ruling in
Posadas de Puerto Rico Associates
v.
Tourism Company of Puerto Rico
, unsettling the tobacco companies and civil liberties champions alike. The
Posadas
opinion stemmed from the Puerto Rican government’s effort, dating back nearly forty years, to attract tourism by legalizing casino gambling. In order to discourage Puerto Rican residents from participating, it forbade casino ads addressed to the native population. Without bothering, under the
Central Hudson
test, to examine whether the statute directly advanced a legitimate government interest, the majority opinion by Chief Justice William Rehnquist held that “it would be a strange constitutional doctrine” that conceded to a legislature the power to outlaw a product or activity but denied it authority to ban
advertising of same. Though Puerto Rico’s casino gambling was legal, Rehnquist wrote,

it is precisely because the government could have enacted a wholesale prohibition of the underlying conduct that it is permissible for the government to take the less intrusive step of allowing the conduct, but reducing the demand through restrictions on advertising. … Legislative regulation of products or activities deemed harmful, such as cigarettes … has varied from outright prohibition … to legislation … with restrictions on stimulation of its demand … . To rule out the latter, intermediate kind of response would require more than we find in the First Amendment.

Antismoking advocates were gleeful. Professors Blasi and Monoghan declared that
Posadas
explicitly confirmed that the First Amendment “does not confer a constitutional right to advertise such an intrinsically and gravely harmful product” as cigarettes, which were deceptively advertised and remained legal only because of the historical accident that their use was “diffused widely before the hazards of tobacco were well understood.” A total prohibition, while now scientifically justifiable, was politically implausible, the antismoking movement recognized, but “no constitutional imperative,” observed the Blasi-Monoghan treatise, required that “a legislature must do everything or nothing at all.” Columnist George Will, one of that rare breed, an antismoking conservative, endorsed the Rehnquist ruling by noting that cigarette ads “are not seminars; they are inducements” and that it would be “perverse to argue” that a legislature could ban a product or activity “but cannot regulate commercial speech that stimulates demand for the product or activity.”

But one man’s perversion is the next man’s passion. Speaking for many civil libertarians, Harvard’s Laurence Tribe echoed the words of Justice William Brennan in dissent when he wrote that “the strange constitutional doctrine” that Rehnquist had dismissed as an illogical impediment to barring advertising when a legislature could outlaw the product or activity itself “is called the First Amendment.” To University of Chicago law professor Philip Kurland, Rehnquist’s
Posadas
opinion invited a grave undermining of the First Amendment, since virtually all economic conduct was subject to government regulation, up to and including total prohibition, and by that standard, all advertising was censurable. Rehnquist, in blurring the traditional distinction in First Amendment readings between speech and conduct, had found advertising to be the latter, Kurland wrote, and if government was thus entitled to regulate it, then the commercial free-speech doctrine was illusory and as good as dead.

Freedom of speech itself, then, regardless of content, was arguably a more hallowed and valuable liberty than the right to sell a particular product or activity,
and it by no means necessarily followed that the silencing of speech—any speech—was a less oppressive form of intervention by government than outlawing an objectionable product or activity. The question was explored widely in the press while Synar’s cigarette ad ban bill languished in Congress. In a March 7, 1987, symposium in
The Nation
, the American Civil Liberties Union’s executive director, Ira Glasser, argued that the health peril associated with cigarettes was not an adequate reason to except the product from First Amendment protection: “Once danger becomes a permissible basis for abridging speech, the only question is, Who defines what is dangerous? … Indeed, the purpose of the First Amendment is precisely to remove such discretion from government officials, including judges.” The amendment had suffered terrible erosion in the name of national security in the McCarthy era—grim testament “to the tendency of courts to allow illegitimate government claims of danger to justify censorship,” Glasser wrote. “When they come after abortion clinic ads, using as precedent the liberal arguments in favor of banning cigarette ads, it will be too late to invoke the protection of the First Amendment.” Michael Pertschuk, a careerist in practical politics, responded that such disquisitions on the nature of cigarette advertising were “unworldly,” while Peter Hanauer, president of Americans for Nonsmokers’ Rights, argued that the question really turned on the “uniquely dangerous” nature of cigarettes, a product “that is harmful when used in precisely the manner for which it is intended.”