Column in Atlantic Monthly Criticizes Appeals Court Ruling in Graphic Cigarette Warning Case Because It Means "Government Can Do Nothing" to Combat Smoking

In an article in The Atlantic, reporter, novelist, and legal scholar Garrett Epps criticizes the D.C. Appeals Court's ruling on the proposed graphic cigarette warning labels, arguing that the ruling is "terrifying" because it means the government "can do nothing" to combat smoking.

Epps writes: "The majority claims to be rejecting only these specific images -- of a man smoking a cigarette through a tracheotomy tube, or a baby wreathed in smoke -- but their hostility to the entire anti-smoking enterprise is ill concealed: "We are skeptical that the government can assert a substantial interest in discouraging consumers from purchasing a lawful product, even one that has been conclusively linked to adverse health consequences," they sniff. If there is no such "substantial interest," of course, then no government warnings can be required."

"What is terrifying is not just the radical nature of the statement: that government can do nothing to combat the single greatest public health threat of our time. The hidden message of the opinion -- a message correctly deduced from much of the Roberts Court's First Amendment jurisprudence -- is that the Constitution requires us to live in a make-believe world, where, for example, gross imbalances of wealth have no effect on political campaigns, and 'smoking isn't addictive' is as protected as 'I pledge allegiance to the flag.'"

"I yield to no one in my devotion to free speech. But a legal system that can't differentiate between political opinion and the sale of cigarettes has forfeited any claim to relevance to the nation it supposedly serves."

The Rest of the Story

I find this to be a great example of a commentary that begins from an ideological viewpoint and proceeds to try to draw a legal argument out of it, rather than the opposite: starting with a grounded legal argument and using it to express a viewpoint on a legal issue.

Here, Epps misconstrues the Court's ruling as well as its implications in an apparent attempt to express an ideological opinion of his own.

Epps makes three mistakes in his construction of the Court's decision:

1. He conflates the government's interest in discouraging consumers from smoking with its interest in ensuring that consumers are warned about the health effects of cigarettes.

Epps argues that because the Court does not see a legitimate government interest in reducing smoking, then "no government warning can be required." But he takes the Court's statement out of context. The Court is not asserting that there is no government interest in reducing smoking. It is asserting that the government cannot use cigarette pack warnings as the means to achieve an aim of discouraging smoking. The cigarette pack warnings could be used to achieve the aim of warning smokers about the hazards of cigarette use. But the warnings cannot be used as anti-smoking billboards. Requiring companies to actively discourage consumers from purchasing their products is an infringement of commercial free speech. Especially when there is no evidence that the proposed approach will achieve its proclaimed aim.

By no means is the Court arguing that no government warnings can be required. It is only holding that government warnings must be warnings, not anti-smoking billboards.

2. Epps misinterprets the decision as meaning that the government can do nothing to combat smoking.

This is precisely the opposite of the Court's ruling and the plaintiff's successful argument. The entire point of the defendant's argument was that if the government wants to discourage smoking, it is free to run anti-smoking campaigns of its own. It can, for example, use anti-smoking billboards to discourage smoking. But it cannot require the cigarette companies to put out those anti-smoking billboards for it, and it certainly cannot require that the cigarette companies turn their packaging into anti-smoking billboards.

In fact, the lesson of this decision is that the federal government and anti-smoking groups have been barking up the wrong tree. Instead of devoting their resources to graphic warning labels, which have not been shown to be effective, they should instead be putting resources into anti-smoking media campaigns, for which there is strong evidence of effectiveness. The government is not taking an evidence-based approach. Instead, it is trying to gain political victory without having to actually put a real dent in cigarette sales.

Were the Congress truly interested in reducing smoking rates, it would have put its eggs into a different basket: allocating funds for a substantial anti-smoking media campaign, along the lines of the "truth" campaign run by the American Legacy Foundation. Instead, it tried to score political points through a flashy, but non-effective intervention (the graphic warning labels).

3. Epps incorrectly asserts that the decision protects the companies if they state that "smoking isn't addictive."

Epps bemoans the decision because it puts us in a situation where "'smoking isn't addictive' is as protected as 'I pledge allegiance to the flag.'" This is not true and again, is the exact opposite of what the court rules. The court's ruling, in fact, indicates that if the cigarette companies were stating "smoking isn't addictive" on their packages, then the government could require labeling that compels certain speech: namely, the correction of this inaccurate and deceptive information. In that situation, in fact, the court makes it clear, the compelling of speech would fall under the lenient Zauderer standard. That is in fact what the Zauderer case is all about!

The rest of the story is that Epps apparently is intent upon making a political statement of his own, rather than reasonably interpreting the court's decision. He argues that a legal system needs to "differentiate between political opinion and the sale of cigarettes," but should not legal analysis be able to differentiate between political opinion and solidly constructed legal arguments?