Nanny State

Federal Judge Says the Government Can't Use Cigarette Packages for Anti-Smoking Propaganda

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Yesterday U.S. District Judge Richard Leon, who in November temporarily blocked enforcement of federal regulations requiring big, graphic warnings on cigarette packages, made that order permanent, ruling that the label mandate violates the First Amendment. Although factual government-required warnings about product hazards are constitutionally permissible, Leon said, the new messages, which would occupy the top half of each package's front and back panels, go far beyond informing consumers:

The graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke astrong emotional response calculated to provoke the viewer to quit or never start smoking….

Further, the graphic images are neither factual nor accurate [because they depict outcomes that are far from typical]….

The images, coupled with the placement of the toll free number, do not "promote informed choice" but instead advocate to consumers that they should "QUIT NOW."…

The Government's actual purpose is not to inform or educate, but rather to advocate a change in behavior—specifically to encourage smoking cessation and to discourage potential new smokers from starting.

"In essence," writes Michael Siegel on his tobacco policy blog, "the government is using the cigarette package as a billboard for an anti-smoking advertisement and referral system to recruit smokers for the cessation hot line intervention." Leon says that sort of compelled speech is inconsistent with the First Amendment:

The Government's interest in advocating a message cannot and does not outweigh plaintiffs' First Amendment right to not be the Government's messenger….This Court is acutely aware of the health risks of smoking. And although the Government may want to convince consumers to stop smoking to protect their health, plaintiffs are correct in stating that their industry should not "serve as the government's unwilling spokesman in that paternalistic endeavor."

The new labels were authorized by the Family Smoking Prevention and Tobacco Control Act, which President Obama signed into law in 2009. The Obama administration says it will appeal Leon's ruling.

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  1. Yes, but…but…

    [insert cloud-behind-the-silver-lining cynicism here]

    1. To be fair, it looks like Jacob was onto this before I posted my hat tip.

      1. Fair, shmair. Demand recognition!

        1. “Hat tip to Beloved Commenter RC Dean…”

          Ya gotta get the “beloved” in there for the regulars.

          1. That’s not how that works.

  2. Fact vs. Opinion seems like a pretty fine line when deciding the permissibility of compelled speech. Especially considering the ontological status of facts as just widely held opinions.

    1. Facts are just widely held opinions? Come here, let’s test my opinions on gravity.

      1. Continental Drift was a fact for fifty years before enough people changed their minds to Plate Tectonics.

        1. Their opinions were wrong, not the facts.

          1. There’s a distinction between the state of the world and our conception of it. If “fact” describes the state of the world, then all human knowledge is opinion.

            1. I’m just being difficult for no good reason.

              1. That’s just, like, your opinion, man.

                1. Fuck, you got me there.

        2. Continental Drift Denier!

  3. Freedom Of Speech is of no concern to the Obama admin, so of course they will fight this.

    Sadly, all but three Congressmen feel the same way, apparently. Kudos for Ron Paul, Justin Amash and Paul Broun (all Republicans) for standing against this tidal wave of stupidity.*

    The story I linked to says Paul voted for it and some other guy voted against it. The Congressional record says otherwise.

  4. You mean forced speech is not free speech???

    Well, I’ll be darned!

    1. How could a Constitutional scholar be expected to know that? It’s not as though we’d covered that in first-year con law or anything.

  5. That the high-water mark of state nannyism has passed, and this is the first sign of a rollback.

  6. The Government’s actual purpose is not to inform or educate,

    Kudos to you, Judge Leon, but you’re missing the point: It’s not the role of the government to inform or educate through private venues, which also includes pretty much everything else the government mandates, like caloric and nutritional content labels in cans of fucking tuna.

    1. OM, you must be unfamiliar with the ‘inform and educate’ exception that’s written into the First Amendment.

      1. Its part of the commercial speech exception, actually.

        1. Ah, yes, there it is. Sorry for the delay, couldn’t find my specially colored decoder spectacles:

          Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press (except commercial speech, of course, and especially when Congress wants to inform and educate the benighted boobs that unfortunately populate this country); or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

          1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press (except commercial speech, of course, and especially when Congress wants to inform and educate the benighted boobs that unfortunately populate this country); or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (unless there is an event going on nearby that involves a government official with Secret Service attached to them or a special event like the Super Bowl or Ronnie Reagan’s funeral).

            Double-FIFY!

            1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press (except commercial speech, of course, and especially when Congress wants to inform and educate the benighted boobs that unfortunately populate this country); or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (unless there is an event going on nearby that involves a government official with Secret Service attached to them or a special event like the Super Bowl or Ronnie Reagan’s funeral).

              FIFY. You forgot this one.

              1. FIFY. You forgot this one.

                Would that count as a Three-FIFY?

                1. Don’t go givin’ dat monster no Three-FIFY!

        2. Re: R C Dean,

          It[‘]s part of the commercial speech exception, actually.

          Who made the exception?

          I know *I* didn’t!

          1. It’s part of the “social contract” you didn’t sign.

            1. I got into that yesterday with a few people on the immigration thread. The, “Since you haven’t left you are implicitly consenting to everything that happens to you” argument is such crap I can’t believe people still trot it out.

              1. I would never leave NK.

            2. Mutter mutter mutter essential attribute of sovereignty mutter mutter mutter the Constitution is not a suicide pact mutter mutter mutter that Constitutional right is a luxury we can no longer afford mutter mutter mutter.

        3. It’s one thing to allow for regulation of some commercial speech on the basis that it’s fraudulent or a misrepresentation; it’s quite another to compel speech.

    2. labels in cans of fucking tuna.

      just like obamacare, you gotta pass it to know what’s in it.

  7. Along the same lines – Dem Congress-critter doesn’t like advertisement in D.C. Metro that includes “Go to hell Obama” – so he wants it taken down.

    1. Well, lese majeste, you know.

  8. Lest we all forget about that woman in Culpeper, VA who got smoked by a cop. The investigation is ongoing, but here are a couple of updates:

    The PD is still refusing to release the name of the cop.
    They are releasing arrest info and personal histories about the eyewitnesses who contradicted the cop’s story.
    The dash-cam on the cop’s car was allegedly inoperable, and they will not release records of it’s operational history to the media.
    The VSP refuse to release details of the shoot.
    Initial reports by police of the woman’s instability have been debunked by all who knew her.

    But they treat investigations of cops just like any other investigation, right?

    1. Man I was wondering what had happened to you, haven’t seen you around in awhile.

      1. Banjos lockdown…

        No, I’ve been awfully busy with work the past couple of weeks.

        1. Work is for fags, just go on the dole like the rest of your pathetic state. Not only is it fun and easy, but it’s the libertarian thing to do, because you’ll hasten the collapse.

          And think of all the free time you’ll have for fucking and doing drugs and following around cops with a video camera.

          1. And think of all the free time you’ll have for fucking and doing drugs and following around cops with a video camera.

            And in that particular order, too.

            1. Yeah I actually paused and put some thought into that, based on what order I would prioritize those items in.

        2. Sloopy wants us to think that he’s been “awfully busy”.

          Maybe the truth is just that his “fiance” feels enTITLEd to him as PRIVation PRIVate property! And why not? The AGI-INDUSTRIAL COMPLEX promotes ownership not of the means of production, but of the very people it claims to protect.

          Banj-officer, am I free to GAMBOL about with dames and whores?

          Thesis 14:
          “Love is a trap I won’t fall into”
          -Jason Godesky, “Why I Sleep Alone”

          1. “Love is a trap I won’t fall into”
            -Jason Godesky, “Why I Sleep Alone”

            Wow. Some low-hanging fruit there.

            And for your information, “Banjos lockdown” means that my fiancee and I rarely leave the bedroom. Unless it’s to have some living room sex with Eastbound And Down on in the background. Or kitchen sex. Or shower sex. Or…you get the picture.

            1. I’m pretty sure that was just a good-natured parody. Not by me, of course. Not enough blood and far-off screams to be my work.

              1. There’s a rumor going around that you’re the Pale Papoose. The fact that Tulpa is willing to entertain the theory can only mean that it’s obviously false.

                1. Yeah, I saw that shit from last night, Hugh. Only a diseased and guilty mind would think that I would keep a joke running that was never funny in the first place. Even STEVE SMITH, a genius collaboration, only lasted for a short period of time.

                  It’s all a massive case of projection.

                  By the way, I think Tulpa was being spoofed on that thread, at least for part of it.

                  1. Yeah I didn’t buy it. You’ve got a rich full life complete with a job and a wife and a lucrative side gig ghostwriting novels for Newt Gingrich.

                    Anemic Indian, whatever it is, is clearly a very lonely and disturbed person.

                    1. Godesky has a wife. Her face looks like a balled-up fist, but I’m pretty sure she’s biologically female.

                      Although Godesky was banned long ago and it is just a sockpuppet at this point. Much like Tony and shrike.

              2. I’m pretty sure that was just a good-natured parody. Not by me, of course. Not enough blood and far-off screams to be my work.

                That was me, I’m afraid. I guess I’ll have to step up my game if I’m going to get people to think I’m you trying to get people to think I’m WI trying to get people to think I’m a coherent human being.

                1. No, no, it was pretty well-done.

            2. Pretty sure that’s a poorly-done spoof, Sloop.

              Oh, and congrats on your premarital bliss. May your life of sin never cease!

            3. ….rent free.

              Cheeers,
              Jason Godesky

          2. *applauds*

            That was REALLY good.

            1. *bows*

              Why, thank you. I’ve been looking for a chance to use the “dames and whores” thing for a while, because assonance is my favorite.

              1. So you like it in the assonance. Noted.

          3. when startled?

            Is it possible that White Imbeciles, which empirical evidence indicate are animals, can only communicate their feelings through flinging excrement?

            See “Society of White Imbeciles, A Case Study On Their Shit Throwing In The Wild
            by Dr. Kimberly Clark PhD
            University of Clark County Press
            1973

          4. Banj-officer

            I lol’d.

    2. Well, in the state of washington, which apparently is the bestest state as far as police respect for liberty, it’s not happening, therefore no systemic problem exists.

      And, cops are popular. 😉

      1. I love how he constantly talks about how democrats are the problem and if we only elected republicans, everything would get better, and then goes on to extoll the virtues of how things are done in…Washington.

  9. Jury actually makes officer pay damages for on-duty assault. Notice from the story that the cop was not charged with a crime, even though ample video evidence existed.

    But they are held to a higher standard because some cop in Seattle got a stiffer than usual sentence for throwing his ex-girlfriend out a window.

    1. It’s not April 1 yet, sloopy

    2. I like the idea someone posted earlier today that all settlement payouts for bad cops come out of their pension plan. That is fucking brilliant.

  10. This is an outrage! I quit smoking entirely BECAUSE of the mandatory warnings on cigarette packages!

    If this would have saved even ONE LIFE, it would have been worth it! It didn’t infringe on anyone’s rights! Big Tobacco? has been hooking people with nicotene for…ever! So it was only right to try to scare people and gross them out to try to get them to stop something that a decreasing percentage of the population engages in!

    Well, now we know that Big Tobacco? is more important than Public Health?.

    Also – TEH CHILDRUNXZAEW!!11!

    *stomps off in a huff*

    1. Never mind the exorbitant taxes paid by tobacco companies and smokers, right?

      1. *sputters*

        Fuck – that’s ultimately why I REALLY quit. At over two packs a day, I spent more on Marlboros than I did on hookers and blow. It was ridiculously expensive.

        Seriously. Plus the hacking and feeling like shit…it’s amazing how much better I feel since I quit. Been a year and a half and going strong.

        1. At over two packs a day, I spent more on Marlboros than I did on hookers and blow.

          Marlboro Lights taste like cardboard. And Reds make my lungs hurt. Camels are cheaper and taste better. It’s that fine blend of Turkish and domestic tobacco doncha know.

          it’s amazing how much better I feel since I quit. Been a year and a half and going strong.

          I quit last Friday and have been sucking on an e-cigarette to handle the nicotine withdrawal. I don’t feel any better, but I sure as hell smell better.

          1. Stay quit

      2. Tobbacco companies don’t pay taxes. They collect taxes.

  11. And with that, I’m going to go out and enjoy my first cig of the day. So long, suckers.

    1. *looks at Jim with that, ‘OMG, you’re going to smoke in my presence?’ look*

      *fake ‘cough cough cough cough’*

      *walks by, turns around and stares, like those sactimonious dicks always do*

      Yeah, boy I don’t miss being that pariah….:)

      1. Smoking isn’t the reason that Jim is a pariah. If I had to guess, I would say it’s the Samsung Galaxy tab full of scat porn he carries with him at all times and watches at every opportunity.

      2. You and Jim should write about your experiences being othered for smoking on the microagressions site.

        1. ^^winner winner chicken dinner^^

          And thanks to Hugh, I now know what pegging means. I think that was Hugh yesterday who linked that, which I had to look up when I got home because my work firewall blocked it.

          1. *still staring at Jim*

            “You SMELL LIKE CIGARETTE SMOKE! It’s all over the OFFICE!”

            *sprays a fuck ton of “Choke Lung SeaBreeze Fresh Linen Laundry Meadow” air spray*

        2. Exquisite!

          This is why I come to Reason.com.

          Well, that and SugarFree’s stories.

          And the links.

          And teh boobs from everyone.

          But not for the pictures…I just read the articles…about the boobs.

          1. Well, that and SugarFree’s stories.

            Then you should sign the petition to make me a board moderator.

            http://www.therereallyisntapetition.org

            1. Hey, SF, that link just takes me back to this story. Could you repost the correct one? Banjos and I both want to sign it.

              1. Oh, the webs we weave about ourselves.

            2. you SugarFreed this link! Perfect

  12. U.S. District Judge Richard Leon

    Leon: The Professional.

  13. “factual government-required warnings about product hazards are constitutionally permissible”

    Government is entitled to first amendment rights by taking over private resources and property.

    1. Re: Colonel_Angus,

      Government is entitled to first amendment rights by taking over private resources and property.

      It too seemed to me that Jacob forgot for a second the 4th Amendment and private property rights implications of taking over people’s property with no compensation for the purpose of “informing” the public.

      Not that the companies that are required to adorn their products with such “warnings” do so reluctantly, mostly because it benefits them indirectly by increasing the costs for their smaller (and nimbler) competitors.

  14. If compelled speech (which is the case for all labeling) is authorized on the basis of the General Welfare clause, it’s not clear to me what Leon’s justification is here. How can General Welfare related propaganda which asserts the opinion of Congress not be considered authorized under the same guidelines?

    1. Maybe because it’s the government’s job to promote the general welfare, not provide it.

  15. So what will they try next….a picture of a slaughtered cow on your McDonald’s wrapper?!

    1. mooo

    2. Not being a dick, but isn’t a picture of a burger in essence a picture of a slaughtered cow? Or at least part of one?

  16. Would’ve been awesome if they also pursued a Takings argument. Basically, that the government wants to expropriate half the advertising/branding space on every pack for public use but without paying just compensation.

    The 1st Amdt route is better because it could lead to an absolute ban, whereas a Takings argument at best would just require the government to pay for the ad space. But at least forcing the feds to pay for these ads would probably be cost prohibitive.

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