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Volokh Discusses Cigarette Warning Messages


A federal judge ruled this week in favor of tobacco companies that sued the Food and Drug Administration. The companies objected to a new FDA requirement that cigarette packs display big graphic images, depicting what smoking can do to you. The images included a body on an autopsy table, a picture of lungs before and after lung disease, one smoker with severe gum disease, another who's had a tracheotomy and smoke escapes from his neck.

The images are extremely uninviting and Federal District Judge Richard Leon ruled that likely violate the tobacco companies' First Amendment rights against compelled speech.

Professor Eugene Volokh is a First Amendment specialist at UCLA law school, and he joins us now. Welcome to the program.


SIEGEL: And first, what is our protection against compelled speech?

VOLOKH: Generally speaking, the government can't require you to say things, just like it can't require you not to say things. The First Amendment protects both against speech restrictions and speech compulsions. When it comes to commercial advertising, though, the Supreme Court has upheld a broader range of compulsions than with regard to other kinds of speech. And in particular, it has said that purely factual information that is aimed at preventing possible deception or possible confusion on the part of the consumer, can be required on ads or on product labels and the like.

SIEGEL: That would account for all of the labels that we see on the products telling us what the contents are, nutritional and otherwise. What was the matter with these, according to that standard? What did the judge say?

VOLOKH: The judge concluded that whatever extra power the government might have to compel speech in the context of commercial advertising, commercial labeling, it lacked such power when the information was not really aimed at informing the public, but rather to persuading people to do something or not to do something. In this case, the judge said, look, they're not really trying to inform people about the dangers of smoking. They're trying to persuade people not to smoke.

Secondly, the judge said this extra flexibility the government has doesn't apply when it comes to emotional or ideological appeals, as opposed to uncontested statements of fact. Third, the judge pointed out that this kind of requirement wasn't really narrowly tailored, because it mandated that the disclaimers cover 50 percent of the box. And that interfered unduly, in the judge's view, with the cigarette companies' right to convey their own message on the box.

SIEGEL: But this seems to be also about the quality of the message, as well as - the quantity, as well as the size of it. The tobacco companies said they were okay with text warnings, which include smoking can kill you. But the picture of a corpse ready for autopsy was not acceptable. It's different. It's emotional.

VOLOKH: Yeah, the judge said that it might well be permissible to require a certain kind of graphical depictions of maybe a chart or something else. But the judge stressed that these particular depictions were basically aimed at emotional appeal, at disgusting people, rather than just simply conveying the facts that here is the risk of using this kind of product.

SIEGEL: As this case moves forward, I assume that the FDA is appealing and who knows how high it'll go, is there a lot of settled law awaiting this particular stay by the district court judge? Or do we not know what's going to happen?

VOLOKH: It's hard to predict what will ultimately happen with this case. The Supreme Court has said in recent years that commercial advertising, while less protected than other kinds of speech, is still quite protected. At the same time, the specific question of how much latitude the government has at compelling speech in commercial advertising – again, not restricting speech but compelling speech - that's something that's not completely settled.

The Supreme Court has confronted these kinds of speech compulsions when it comes to attempts at conveying factual information to people, aimed at making sure that they know what product they're buying and they know its limitation and its risks. But beyond that, the Supreme Court hasn't really spoken. So it's not clear what result there would be in a commercial advertising case where the government is simply requiring a disclaimer, even a very graphic and ideologically-laden one such as this one, as opposed to mere factual information.

SIEGEL: Well, Professor Volokh, thank you very much for talking with us.

VOLOKH: Very much my pleasure, as always.

SIEGEL: That's Eugene Volokh, law professor at UCLA. We were talking about a ruling by a federal judge, blocking new graphic warning labels on cigarette packages. The FDA had required those new labels to start next year. The ruling prevents that from taking effect until the lawsuit over the matter is resolved. Transcript provided by NPR, Copyright NPR.