Smoke and Mirrors

Antismoking activists say they're neither elitists nor paternalists. They're fooling themselves.

Jacob Sullum from the February 1991 issue

In the banquet room of a Mexican restaurant in Southern California, a man and a woman each light a cigarette after finishing their meal. A diner sitting next to the couple picks up a menu and begins to wave it ostentatiously, as if to clear away the smoke. The couple ignore him for a while, although his message is clear. When he persists, they glare at him. But then a funny thing happens. They get up and walk to the back of the room, where they stand for the rest of the evening.

The entire altercation is conducted in silence, but the hostility is palpable. Both the couple and the man who objects to their smoking are indignant. Yet they do not ask the manager whether smoking is permitted in the banquet room. Neither do they try to reach a compromise by redirecting the smoke or rearranging seats. Instead, the smokers simply give in.

The episode is particularly striking because it takes place at a meeting of a libertarian supper club. These are people who might argue about whether your neighbor would violate your rights by keeping a nuclear warhead in his garage. Yet confronted by a much more practical controversy, they are struck mute.

Tobacco smoke seems to have a peculiar ability to obscure issues. Perhaps no other personal habit generates as much acrimony as smoking, and the conflict has resulted in measures that go far beyond banishing smokers to the back of the room. Government limits the marketing and advertising of tobacco, taxes its sale, and regulates its use. A vocal antismoking movement, including legislators and public- health officials as well as private advocacy groups, is pushing for further anti-tobacco measures, including a ban on advertising, higher excise taxes, and the prohibition of smoking in “public places.”

Some recent signs of the movement’s success:

• Last year, Congress banned smoking on domestic airline flights.
• Last fall, San Luis Obispo, California, became the first municipality in the country to adopt a comprehensive ban on smoking in businesses.
• In New York City last October, the city council passed a ban on cigarette vending machines, exempting bars only. The latest plan to reduce the federal deficit raises the excise tax on cigarettes to 24 cents a pack, a 50-percent increase. This is probably the least controversial element of the budget package.
• In California, the state is using $28.6 million from a 25-cent-a-pack increase in the cigarette tax to fund an advertising campaign that depicts smokers as inconsiderate slobs and cigarette manufacturers as gleeful murderers. In effect, the government is forcing smokers and tobacco companies to pay for their own vilification.

The antismoking movement draws its strength from its ability to portray smoking as a threat to everyone. Although some activists, especially in the national health organizations, stress the impact of tobacco use on smokers, most justify restrictive measures by citing the alleged effects of smoking on the general population.

“We’re not trying to protect the smoker from himself,” says Ahron Leichtman, president of Citizens Against Tobacco Smoke, one of the main groups that lobbied for the airline smoking ban. “We’re trying to protect the nonsmoker from the smoker.” John Banzhaf, executive director of Action on Smoking and Health, says he is mainly concerned with making sure that smokers bear all the costs of their behavior. Although ASH supports restrictions on advertising, he says, “it does not mean we’re paternalistic.”

Activists who genuinely adhere to this position are fooling themselves and misleading others in the process. The antismoking movement is, in fact, profoundly paternalistic. It does not trust people to make their own choices about smoking-neither whether to do it nor whether to tolerate it. Under the guise of protecting public health and guarding the rights of nonsmokers, anti-tobacco activists seek to impose their careful habits on those who are less rational, less educated, and less health-conscious.

The movement’s paternalism is clearest when activists talk about cigarette advertising: They say the government must protect consumers, especially members of “vulnerable” groups, from the influence of such messages. In the campaign against smoking, freedom of speech is a mere hindrance.

The Coalition on Smoking OR Health, a joint project of the American Heart Association and the American Lung Association, favors a complete ban on tobacco advertising, which Rep. Mike Synar (D-Okla.) has also proposed. ASH’S Banzhaf, who filed the FTC complaint that led to the 1971 ban on TV commercials for cigarettes, favors restricting ads to “tombstone” messages-text only. A bill authored by Rep. Henry Waxman (D-Calif.) would allow pictures of the product but no other illustrations. It would also prohibit tobacco companies from sponsoring athletic, musical, or artistic events.

Banzhaf, a law professor at George Washington University, believes such restrictions-even a complete ban-would hold up in court, given precedents in other industries. He cites the heavy restrictions on the advertising of prescription drugs and of stocks and bonds. He notes that the Supreme Court has repeatedly held that “commercial speech” receives only limited protection under the First Amendment. Furthermore, in a 1986 case upholding Puerto Rico’s authority to ban casino advertising, the Court declared that if the government has the power to prohibit an activity, it also has the “lesser power” to prohibit advertising of the activity.

The commercial/noncommercial distinction opens a dangerous loophole in the First Amendment. In the May 1990 Virginia Law Review, Alex Kozinski, a federal judge on the Ninth Circuit Court of Appeals, argues that it’s impossible to come up with a definition of commercial speech that makes sense in light of the Supreme Court’s decisions. The two properties that supposedly underlie the distinction-durability and objectivity are no more characteristic of what has been called commercial speech than of fully protected speech. Even if they were, the relevance of these characteristics is not clear Furthermore, some messages, such as movies and “advertorials,” blend advertising with other forms of speech.

Kozinski argues persuasively that there is no coherent, constitutionally plausible way to protect art, journalism, and scientific debate without also protecting the kinds of speech the Court has labeled commercial. The commercial-speech doctrine, he writes, “gives government a powerful weapon to suppress or control speech by classifying it as merely commercial. If you think carefully enough, you can find a commercial aspect to almost any first amendment case.”

First Amendment issues aside, it's not clear what the point of further restricing anti-smoking advertisments would be. Antismoking activists object to the use of fun, healthy, sexy, and youthful imagery in cigarette ads. “You could make a very good argument that advertising of tobacco products is in fact misleading, that the images and the kind of messages they contain are contrary to what the product does,” says Scott Ballin, head of the Coalition on Smoking OR Health.