FREE SPEECH has been in the news lately. In the wake of Rush Limbaugh calling a Georgetown law student a “slut,’’ the ubiquity of vile commentary has caught public attention. CNN contributor Roland Martin tweeting an anti-gay comment and liberal talk show host Bill Maher calling Sarah Palin a “dumb [expletive]’’ are just two more examples of a coarsening of political discourse that treats the ad hominem as argument and polarizes rather than illuminates.
Still, as offensive as it all may be, few would argue that there’s a role for legislation here. Most of us buy into the First Amendment to the Constitution - the one that says “Congress shall make no law . . . abridging the freedom of speech.’’ We may not like Limbaugh’s words, but it’s hardly up to Congress to prohibit him from saying them.
But how about the reverse? Instead of passing a law banning certain speech, could Congress pass one requiring Limbaugh affirmatively to say certain things? Could it, for example, require him (or Clear Channel, his employer) to broadcast a message that taxpayers should pay for contraception? Or force him to voice approval for removing prayer from school?
Don’t laugh. In a different circumstance, the feds are trying to do exactly that.
In this case, it’s tobacco companies and not Limbaugh who are the objects of the government’s ire. Admittedly, liberals everywhere despise cigarette makers even more than right-wing talk show hosts, so it’s hard to muster up a lot of sympathy. Yet the point of rules such as those outlined in the Constitution isn’t to protect those who are popular — in that case no protection would be needed — but rather to defend those who are on the outs.
A 2009 federal law gave the US Food and Drug Administration authority to regulate tobacco, including requiring that cigarette packages display graphic anti-smoking ads covering at least 50 percent of each pack. The new ads are compelling stuff. One shows a man with a tracheotomy, cigarette in hand and breathing smoke out through the hole in his neck. A second displays a grotesque set of diseased lungs; a third features a dead man’s body on a gurney, metal autopsy stitches running down his chest. They are designed to provoke an emotional response - revulsion, disgust, even nausea.
Unlike cute brown camels, these images are designed to persuade folks not to smoke.
Granted, Mitt Romney’s claims notwithstanding, corporations really aren’t people. First Amendment law has long recognized that commercial speech is different from regular speech, and so subject to some regulation. That’s why we have nutritional information on the foods we buy, for instance, and it’s the same argument that so far has allowed the government to require warnings (e.g., “Cigarette smoke contains carbon monoxide’’). But the new law, tobacco companies felt, went well beyond providing factual information to requiring them to become advocates - and, of course, advocates for an argument they clearly don’t want to make.
So, naturally, they sued and last week they won round one, with the District of Columbia federal district court blocking the FDA’s rules. The decision was unequivocal. Forcing someone - even a company - to say something is little different from prohibiting people from speaking, wrote Judge Richard Leon. “For corporations as for individuals, the choice to speak includes within it the choice of what not to say,’’ he noted. The FDA has appealed and don’t be surprised to see this one eventually end up at the Supreme Court.
Personally, I think the FDA’s ads are a tactical mistake. Their scary luridness is so over-the-top that they risk backfiring, making smoking seem a cool way for teens to rebel - and smoking by kids has largely been the motive for the new rules.
But whether the ads are effective or not, Leon’s decision was the right one. We’re a nation of rules, and not exceptions. Giving government the power to compel tobacco firms to advocate a message also gives it the power to compel others to do the same. Maybe that wouldn’t bother you if the next target was Rush Limbaugh. But just suppose — after, say, Rick Santorum’s inauguration — it was Rachel Maddow and MSNBC, now obliged to proclaim the contraceptive merit of an aspirin between the knees.
Originally published in the Boston Globe on March 10, 2012.