Writing in The New England Journal of Medicine about the tobacco ad restrictions that a federal judge overturned on First Amendment grounds last week, Ronald Bayer and Matthew Kelly wonder why freedom of speech should be allowed to stand in the way of public health. That is not quite the way Bayer and Kelly, both scholars at Columbia University's Mailman School of Public Health, put it. Here is how they put it:
Why does the United States alone among advanced liberal democracies extend to advertising exacting protections more commonly afforded to political, social, and cultural expression? How did we come to believe that the exchange of commercial appeals in the marketplace of goods and services should be equated with free exchange in the marketplace of ideas? Are our freedoms really secured by a constitutional doctrine that would limit our capacity to inhibit the promotion of toxic goods? This is an opportune moment to reflect on these questions and their implications for the relationship between public health goals and the rules that should be foundational in a democracy.
Since the distinction between commercial and noncommercial speech, which has no basis in the text of the First Amendment, was invented (then partly repudiated) by the Supreme Court, a better question might be why money changes everything. As federal appeals court judge Alex Kozinski and his former law clerk Stuart Banner noted in their 1990 evisceration of the commercial speech doctrine, "In a free market economy, the ability to give and receive information about commercial matters may be as important, sometimes more important, than expression of a political, artistic, or religious nature." (Kozinski and Banner demolished the other arguments for commercial speech's second-class status as well, and the courts have been moving in their direction since then.) The argument that advertising does not deserve full First Amendment protection ultimately resolves into the argument that pernicious speech does not deserve full First Amendment protection, as reflected in this testimony from the American Public Health Association (quoted with seeming approval by Bayer and Kelly):
Cigarettes are killing us….Advertisements should be to promote good healthy products and not products that kill. Cigarette companies practice false advertising at its worst: deceptively offering freedom while actively inducing bondage.
By all means, let us talk only about good healthy things, and let us have the government enforce that rule. What could possibly go wrong? It is no coincidence that the liberal democracies where advertising is subject to stricter limits (countries that Bayer and Kelly seem to view as more enlightened) also tend to be countries where other kinds of speech—such as criticism of wealthy people, symbols of certain ideologies, and pictures that offend members of certain ethnic or religious groups—are subject to stricter limits.
Leaving aside the debate about whether tobacco advertising actually boosts consumption, as opposed to shifting brand preferences (and the debate about whether the government has any business trying to stop adults from smoking), there's no question that some forms of speech have bad consequences. But once you accept the idea that one kind of speech is so harmful that it should not be tolerated, it is hard to find a principled stopping place. Even if you want to ban just one form of expression—cigarette ads, say, or Nazi memorabilia, or anti-Muslim hate speech—other people are bound to have examples of their own.
[Thanks to Linda Stewart for the tip.]