In the legal brief submitted by several tobacco companies (Reynolds American, Lorillard, Commonwealth Brands, Liggett, and Santa Fe Natural Tobacco Company) seeking an injunction against the FDA's soon to be implemented graphic warning labels, the companies argue that the required labels infringe on their free speech rights because they are more than merely factual health information. The companies contend that the warning labels are essentially anti-smoking promotions. A key element of the argument is that the FDA is requiring tobacco companies to place the national quit line number (1-800-QUIT-NOW) on their cigarette packs.
The companies therefore argue that: "Each warning also includes the “1-800-QUIT-NOW” hotline, thus requiring that Plaintiffs literally urge adult consumers of their lawful products to “QUIT-NOW.” ... Indeed, through the inclusion of the smoking cessation hotline, Plaintiffs are literally required to exhort their consumers to “QUIT-NOW.” This is hardly content-neutral speech. The Rule therefore falls outside the exception to strict scrutiny for purely factual and uncontroversial disclosure requirements."
In essence, the mandatory inclusion of the quit smoking hot line promotion requires the tobacco companies to urge their own customers to stop using the product. Thus, the companies have to express a viewpoint which is not their own. This, the brief argues, is the most odious violation of free speech rights:
"As the Court recently held in Sorrell, “[t]he State can express [its] view through its own speech. But a State’s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction.” 2011 WL 2472796, at *17. The application of strict scrutiny in this context reflects the First Amendment’s intolerance of laws that target speech according to its viewpoint. Like other forms of viewpoint discrimination, a requirement that a speaker promote a particular point of view in lieu of his or her own is “censorship in a most odious form.” Police Dept. of Chi. v. Mosley, 408 U.S. 92, 98 (1972) (quoting Cox v. Louisiana, 379 U.S. 536, 581 (1965) (Black, J., concurring); see also Blagojevich, 469 F.3d at 651 (“The Court has stated that where a statute ‘mandates speech that a speaker would not otherwise make,’ that statute ‘necessarily alters the content of the speech.’” (quoting Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988))). As such, compelled speech is, like other forms of viewpoint discrimination, “presumptively unconstitutional.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 830 (1995)."
The Rest of the Story
There are two problems with the required graphic warning labels that I believe renders them subject to potential violation of the First Amendment. First, as the tobacco companies argue, it is going to be difficult for the FDA to assert that requiring tobacco companies to put the smoking cessation hot line number on their packs is merely a health warning, rather than a smoking cessation message.
Second, it is going to be difficult for the FDA to argue that the required warnings are the least restrictive interference with free speech that could accomplish the government's intended purpose in requiring that tobacco companies warn their consumers of the health hazards of smoking.