Should Cigarette Advertising Be Banned? D. Uyl and T. Machan

Our particular issue is commercial speech Douglas J. Den Uyl is Associate Professor ofPhilosophy at Bellarmine College, Louisville, Kentucky, and Tibor R. Machan is Professor of Philosonhy at Auburn University, Alabama. and its deserved protection under the First Amendment. Tobacco advertising is a clear though controversial example of the principles we wish to address. Virtually all attacks on liberty, including the liberty to express various viewpoints, ideas, theories, beliefs, appeals, requests, and so forth rest upon a basic moral error. This is the error of confusing basic rights with what is morally or ethically right. The recent attempt to ban commercial speech about tobacco products is one of the purer ex amples of this error. If we assume, for t~e sake of argument only, that it would be right for people to stop smoking, we have, as yet, said absolutely nothing about the rights of the case.

It may turn out that forcing people to quit smoking, restricting their access to tobacco products or information about such products, violates their rights. The paradox here is that in the pursuit of what is right, one may do what is morally wrong! The reason for the paradox is that the partic ular way in which the "good" (or right thing) in question is pursued may conflict with an other good that takes priority. All social moral principles are not created equal. Some are more fundamental than others. What is characteristic of rights is that, almost by definition, they are foundational or basic. Other social values must give way to them in cases of conflict. We can see this in everyday speech. It makes perfect sense to say, "It may not be right for someone to do (or believe) this, but he or she has every right to do so."

448 THE FREEMAN. DECEMBER 1987 When this ad appeared, the loudest protest came from grammarians, not regulators. But what rights do we have? Some rights seem to be dictated by common sense. The "right" not to be harmed seems to be one of these rights. If this is a right, shouldn't tobacco products or information about such products be restricted or banned? Unfortunately, common sense is not always accurate. There is in fact no basic "right not to be harmed." The reason for this is twofold: People can voluntarily undertake risks, and people can have their rights violated without being harmed. In the first case, people volun tarily pursue dangerous activities all the time. They take on dangerous jobs, pursue dangerous sports, drive cars, and so on. What we expect in such situations is that the people involved have some conception of the risks they are un dertaking-not that they be free from harm. In the second case, if the government restricts my freedom to speak on behalf of a cause I do not believe in, I have not been harmed, but my rights have been violated. In the end, then, rights and harms are not necessarily connected.

In a similar vein, rights· and government have no necessary connection with each other. Some people mistakenly believe that rights are what the government allows us to do. But if this were true, it would make no sense to say that governments can violate people's rights, something they in fact do quite often. Since, as the Declaration of Independence so clearly notes, we are "endowed . . . with certain un alienable rights," we can possess rights that were not given to us by government and which government cannot legitimately take away. The first ten Amendments were designed to protect us from government infringement of rights we were said to possess "by nature." Basic Rights The Amendment that concerns us here is the First; but the principle behind all of them is the same: People have basic rights independent of governments. This principle further enforces our claim that a fundamental error occurs when one confuses rights with what is right. For what one discovers about basic rights is that they represent liberties, and liberty implies the pos sibility of choosing a "wrong" course of action as much as a "right" one. This point is clearly evident in freedom of speech cases where many wrongheaded causes and ideas are allowed to have their say with the same degree of legiti macy as those that are closer to the truth. Our basic rights, therefore, must be understood as essentially liberties; and these liberties are given political expression through Constitu tional guarantees against government interfer ence.

The main remaining issue here is whether people can have their liberties restricted in the name of "paternalism"-using the power of government to protect us from ourselves. But in a free society, if paternalism has a place at all, it would arise only in cases where informa tion about alternatives was lacking. But clearly such is not the case with tobacco products and their use.

SHOULD CIGARETTE ADVERTISING BE BANNED? 449 Of course, we are not arguing or conceding that smoking is the "wrong" that must be pro tected by our distinction. Whether someone' s smoking qualifies as wrong conduct is certainly not a simple matter to decide. Even if in some cases it is clearly wrong to smoke, there can be many others when it is not. Yet some certainly regard smoking in this way; and it is useful to recognize that even if one concedes the point about the "wrongfulness" of smoking, no foundation has yet been laid for waiving basic rights or Constitutional protections. In a recent case, the Federal Trade Commis sion (FTC) charged the R. J. Reynolds To bacco Company with running a false and mis leading advertisement ("Of Cigarettes and Science' ') on the health effects of cigarette smoking. The FTC believed the advertisement to be deceptive because R. J. Reynolds had in terpreted a government study on the causes of heart disease in a way that was not detrimental to smoking. The FTC lost the case because the judge ruled that the advertisement qualified as noncommercial speech, since no prices, brands, or products were mentioned. Had prices, brands, or products been mentioned, the FTC would have had the power to regulate the advertisement under the limited First Amend ment protections granted to commercial speech.

The question arises, however, as to why R. J. Reynolds would not enjoy full First Amendment protection even if it had mentioned its own products? In the last few years, the courts have given commercial speech secondary status with re spect to First Amendment protection. Although the courts clearly protect the right to advertise, they nevertheless subject advertisers and pro ducers to the myriad of government regula tions. The secondary status of commercial speech is the inevitable result of trying to reconcile free speech with a regulated economy. But this reconciliation is conceptually unstable. It as sumes, on the one hand, that economic activi ties can be divorced from communication and information about such activities. Since these two cannot be separated, the right to free speech is compromised in an attempt to retain the government's power to regulate voluntary economic transactions. On the other hand, the reconciliation assumes that the right of free speech applies to some categories of speech and not others. Commercial speech needs to be wrenched from other forms of speech to make this argument fly, yet no logical and legal ground can be found for this in the U. S. Con stitution.

"Private" vs. "Public" Speech The main way of trying to separate commer cial from noncommercial speech is to argue that the latter is "public" speech while the former is "private" because it serves some pri vate interest. This distinction is used to argue that the court has gone too far in allowing First Amendment protection of commercial speech. The First Amendment, these critics claim, was meant to cover cases of public speech, not pri vate. They would agree with us that it is inco herent to grant commercial speech only partial protection; but their solution is to afford com mercial speech no First Amendment protection at all! The distinction between public and private speech is simply not viable. In the first place, it is typical for those who object to First Amend ment protection of commercial speech also to fail to object to government regulation of the economy. But if economic matters were purely private, the government could have no "public" interest in regulation, and it is the supposed public interest of government in eco nomic regulation that refutes the claim that commercial speech is a purely private affair.

In addition, those who speak are seldom, if ever, as disinterested as the concept of "public" speech would lead us to believe. Groups which have causes to advance in the name of the "public interest" have at stake precisely the same things as corporations do in their advertisements: organizational growth, jobs, visibility, competitive advantage (relative to other groups with a cause), and the like. In di viduals, too, seldom make disinterested public pronouncements, especially on contro versial issues of public policy (e.g., taxes and zoning changes). If the First Amendment is not designed to protect self-interested speech, there is precious little that it does protect.

450 THE FREEMAN. DECEMBER 1987 "The secondary status of commercial speech is the inevitable result of trying to reconcile free speech with a regulated economy." Finally, speech, by its very nature, is public, since it is communication. And advertising is most certainly public, because it is addressed not to particular individuals, but to unknown members of the public. We should abandon the distinction between private and public speech and accord commercial speech the same full First Amendment protection given to all speech. Does it now follow that advertisers can make any false or fraudulent claim they wish about their products? The answer here is no, because there is a significant moral difference between making a promise and expressing a belief. The informational components of advertisements can plausibly be construed as an initial state ment of terms between seller and buyer. This is why it is legitimate to hold advertisers account able to some degree for the truth of their ads.

Expressions of belief, on the other hand, do not function like promises, because no one is called upon to deliver a good according to stated terms. No one has the right to defraud another. But to say that hardly justifies intrusive govern mental regulation of commercial speech. If the R. J. Reynolds advertisement had included accurate product information, the ad could not be held morally and legally culpable. The court should have ruled in Reynolds' favor, even if they had included product infor mation as part of the advertisement. The court's attempt to dodge the issue by calling the Reynolds advertisement "noncommercial" may have been convenient, but it leaves com mercial speech vulnerable to attack by foes of liberty. In this respect, the court has strayed even wider of the mark in its recent ruling in P0 sadas, a case that arose in Puerto Rico in which once again the court distinguished between commercial and other types of speech, a dis tinction that is inexcusable despite the specious claim that the "original intent" of the First Amendment was to cover only political speech.

In fact, however, the precise meaning of the First Amendment concerns any kind of speech whatever, and a law must be interpreted to mean what it says-legislative intentions are too diffuse and varied for us to be guided by them. It is true that the First Amendment does not unequivocally grant protection to commercial SHOULD CIGARETTE ADVERTISING BE BANNED? 451 speech, but that is irrelevant-it certainly does not bar such protection either, just as it does not bar protection for religious, philosophical, ideological, poetical, or any other special kind of speech. If this is not sufficient, as it should be, we should also recall here the Ninth Amendment which says that' 'The enumeration in the Con stitution, of certain rights, shall not be con strued to deny or disparage others retained by the people." This Constitutional provision can only be understood as wisely extending protec tion to many matters not explicitly mentioned or foreseen by the Founders. So when the First Amendment is coupled with the Ninth, one must assume that commercial speech is still speech and hence Constitutionally protected.

When we also add to all this that the Fourteenth Amendment requires that "No State shall ... deny to any person within its jurisdiction the equal protection of the laws," it becomes clear that a ban on any kind of honest advertising would constitute a form of discrimination against people in business vis-a-vis other pro fessions, activities, and forms of speech. In short, the principles embedded in the Constitu tion clearly favor the argument for full Consti tutional protection of commercial speech. Nevertheless, the argument persists and is a simple one: Cigarettes are "lethal" products while the images conveyed by cigarette ads in no way convey this danger-indeed the oppo site message is conveyed. The consumer is therefore deceived into believing that cigarette smoking is acceptable, attractive, or without risks and hazards. This argument, however, is nothing but a version of the old shibboleth that advertising itself is inherently deceptive.

Advertisements are said to be inherently de ceptive because they "selectively emphasize" certain features of a product to make the product appear more attractive. Since this tech nique ignores or de-emphasizes other features, the consumer is deceived. The moral conclu sion many draw is that since advertising is de ceptive, and deception is morally wrong, ad vertising is morally wrong. But the case for "generic deception" de pends upon there being something wrong with presenting something in a positive light and upon the likelihood that people are unaware of the type of message being delivered. Neither condition can be satisfied. There is nothing wrong with presenting something in its most attractive light. We do this all the time. On our resumes we do not list the jobs we lost or the failures we had. In our personal grooming we take care to look attrac tive and hide our "flaws." As to the nature of the message, what is generic to advertising is precisely the effort to present something in its most attractive light. Since attractive presenta tion of information is virtually what we mean by an advertisement, it is nonsensical to claim generic deception when one confronts an adver tisement. Selective emphasis does not violate the canon of truthfulness per se, because the basic truth conveyed by advertising is that when you see it you expect to see the item por trayed in its best light. And surely there are (some) attractive people who use tobacco products.

After examining basic moral and Constitu tional values, one is forced to conclude that the tobacco industry is on the side of principle in its opposition to the AMA. It is obvious that ban ning or restricting commercial speech about to bacco products ignores basic rights and liberties and opens the door to further coercive control of speech. What is perhaps less obvious is the damage already done. That Congress and the media could take a proposal like the AMA' s seri ously, and indeed that well-educated medical professionals could be so completely ignorant of the meaning of liberty, signifies a national crisis of understanding of our own heritage of political liberty. Furthermore, the ad hoc atti tudes of the present Court concerning commer cial speech offer little hope that thTs crisis will be remedied from this quarter. Yet in the end, what disturbs us most is how insulting all this is. Despite continual subjec tion to claims about the evils of tobacco, we are being told that we are too incompetent to make up our own minds about these products. The damage that has already been done is reflected in the fact that we take such insults on a daily basis. Let us reverse the trend and identify the insult as just that. It is a first, but necessary, step in preventing the world from filling up with fools. D 452 The Ancient Suicide of the West by Nicholas Davidson I.