Cigarettes and Compulsion

Graphic cigarette warnings aren't effective or constitutional.


The legendary Chief Justice Oliver Wendell Holmes Jr. said the most important element of the Constitution "is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate."

The other day, a federal judge decided to test our attachment to that principle. He ruled that the government had violated the free-speech rights of tobacco companies. Talk about hated: Their reputation puts them somewhere above Adolf Hitler but below Al Capone.

A law passed in 2009 said that every cigarette package must be half-covered, front and back, with one of nine noxious images—diseased lungs, a cadaver on a table, a man exhaling smoke through a tracheotomy hole and the like. The point was to make smoking seem so vile that teens would flee in terror.

Anti-smoking paternalists, a group that includes President Barack Obama, see this approach as necessary to counter the nonstop brainwashing efforts that tobacco companies conduct on young people.

"Kids today don't just start smoking for no reason," he proclaimed when he signed the bill. "They're aggressively targeted as customers by the tobacco industry. They're exposed to a constant and insidious barrage of advertising where they live, where they learn and where they play."

Oh? Since 1998, under a legal settlement with 46 states, the major tobacco companies have been prohibited from taking "any action, directly or indirectly, to target youth … in the advertising, promotion or marketing of tobacco products" or to "initiate, maintain or increase the incidence of youth smoking."

Among other things, they may not advertise on billboards, put signs in transit systems or stadiums, offer brand-logoed apparel, hand out samples anywhere minors are present, use cartoon images, sponsor concerts, or pay for product placement in movies or TV shows.

They were already banned from radio and TV. Most of their marketing now consists of price discounts—which don't go to kids because no one under 18 is allowed to buy cigarettes.

Obama noted he was one of the many smokers who started as teenagers. He doesn't seem to realize the advertising environment today is drastically different from when he was in high school. Cigarettes are also taxed far more heavily than they used to be. He fails to mention that as a youngster, he also used marijuana—which did not have the benefit of mass advertising.

His approach rests on an unwarranted faith in the power of government to bend behavior. Jon P. Nelson, an economist at Penn State, has studied tobacco advertising restrictions in various countries, and his research indicates the advocates are blowing smoke.

"I don't find that advertising bans have any effect on youth smoking outcomes," he told me. "I don't find they have any effect on cigarette consumption."

He notes that in 2001, Canada imposed its own system of graphic warnings. And guess what? "I'm not aware of any convincing research that it actually changed cigarette consumption or smoking prevalence," he says.

District Judge Richard Leon, however, was not concerned with whether the required labels are likely to be effective. He was concerned with whether they are constitutional—and he concluded they are not.

The First Amendment guarantees not only the right to speak, but the right to be silent. The warnings are a form of compulsory speech, which is permitted only in rare cases, such as protecting consumers from deception. In those instances, Leon noted, the government can require companies to furnish "purely factual or uncontroversial information."

But this law goes way beyond merely letting people know that smoking can kill—which, by the way, is akin to letting people know the sun is hot. The government's "emphasis on the images' ability to provoke emotion," wrote Leon, "strongly suggests that the government's actual purpose is not to inform, but rather to advocate a change in consumer behavior."

If our elected leaders and bureaucrats want to advocate a change in consumer behavior, they are entitled to. But they can't do it by commandeering the packages of a legal product, over the objections and at the expense of the manufacturer.

It's the equivalent of requiring new cars to be adorned with giant photos of bloody crash scenes or Big Mac containers to depict an obese corpse. Cigarette companies, Leon said, may not be forced to serve as messengers for anti-tobacco crusaders.

Nobody loves tobacco companies. But freedom is not just for those we love.

Steve Chapman blogs daily at

NEXT: Before His Time

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  1. Just another bit of fallout from Citizens United, which granted rights to corporations they never ever had before and made them like super individuals, is the takeaway here. Evil evil corporations now can imprison you on flimsy evidence and force you to watch their 24/7 propaganda broadcasts and shoot your dog and keep you from marrying your lover and tell you how to run your business. Fucking corporations.

    1. Sounds like a description of the federal government. Here's hoping this was irony.

      1. That may have been the intent.

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  2. Firstist

    1. Or, maybe not.

  3. Where can I get a cool hole in my throat that emits smoke?

    1. Brett Michaels' penis.

  4. It's the equivalent of requiring new cars to be adorned with giant photos of bloody crash scenes or Big Mac containers to depict an obese corpse.

    How about pictures of scalded genitalia on coffee cups?

    1. Or a nasty case of the drip on condom wrappers.

      1. Logic fail, 35N4P2BYY.

        1. A photo of the same on the side of Astroglide or Viagra packaging might be more appropriate.

  5. I fail to understand why they don't just make everything that's bad for us illegal. Soft on crime.

    1. I'd settle for making everything illegal bad for us. Which might happen if foodies and Monsanto ever take over the Democrat and Republican parties.

  6. lol, OK dude I never thought about it like that before.

  7. Next, I'll have to put labels on my jars with a warning that farts can be dangerous to your health.

  8. ...must be half-covered, front and back, with one of nine noxious images

    And who, if anyone, might have a copyright on those images?

    'HAHA, not only do you have to put these images on your packaging, you have to pay royalties to the photographer.'

  9. I can already see in the future that the same will happen to Coca Cola bottles, they will show some very fat man and woman on the bottle saying that sugared drinks are bad for your health.

  10. What frightening image should go on welfare applications?

    1. Michael Moore's face.

      1. But most of the people likely to go after welfare benefits already masturbate to the sight of him. Not so much a deterrent.

        1. I doubt most of the people likely to go after welfare benefits know who he is or what he looks like. They're more likely to think, "Hey, how'd uncle-cousin Billy Joe get his picture on this application?" And then they masturbate. So I guess you're right.

  11. As the great sage George Carlin once said, "Kids don't smoke because a camel in sunglasses tells them to. They smoke for the same reason adults do: to relieve anxiety and depression."

    1. While Carlin's observation is reasonable (as his tend to be) what I'd like to see is a study of how many kids smoke because Mommy, Daddy, Teacher, and Big Government all tell them that they shouldn't. My personal feeling is that that number wouldn't be small.

      1. I know several people who've smoked marijuana because it was considered rebellious and counter to the social norm and the law.

        "i'm 1 bad mutha-fucka i been smokin dat pot yo"

  12. requiring new cars to be adorned with giant photos of bloody crash scenes or Big Mac containers to depict an obese corpse

    Gee, thanks for the ideas! On it.

    1. And we'll put QR codes on the packaging that gives people free access to disgusting videos of 'victims' of the evil products dying from them!

      1. Excellent! And we'll encourage people to upload videos of their dying loved ones!

        1. encourage REQUIRE

          Sorry, my bad.

          1. That'll show 'em! Let's cook the numbers while we're at it and report every view on the videos as a smoking-related death or illness. Then we can pass even MORE ridiculous... even more laws for the greater good.

  13. The warnings should be printed on the cigarettes themselves, duh.

    1. "REFRAIN OR DIE", in large capitals.

      1. "Smoking this cigarette will invalidate your Obamacare. Choose wisely."

        1. "This product is not legal for public consumption in California."

          1. "This product is not legal for public consumption in California;except for when it contains marijuana,in which case it is legal for consumption,except on the days when Federal government decides it is not."

  14. For some reason the number of people in America who smoke has been reduced from 80% to less than 25%. Even though the article suggests an authority that says there is no evidence that the American and Canadian government advertising policies toward smoking have been responsible for these trends, he doesn't give any citations of evidence or suggestion as to what may have caused the decrease.

    1. The "cigarettes = a creation of Mephistopheles" popular view might have had something to do with it.

    2. I think people quit smoking when presented with the facts, everyone knows cigarettes are bad now. Doctors endorsed cigarettes when ? of the population smoked.

  15. So if I quit smoking I won't die? Considering the future of America under nanny state D's or nanny state R's it doesn't sound like it's worth the effort to me.

    1. My sentiments to an extent. As long as I can cut back enough to get rid of that damned chronic cough.

    2. So if I quit smoking I won't die?

      It'll take a bit more than not smoking. You shouldn't use internal combustion engines, industrial solvents or cleaners, any chemicals in agriculture, burn anything at all, use nuclear power generation, or get angry. Then you have a chance to live forever.

  16. "It's the equivalent of requiring new cars to be adorned with giant photos of bloody crash scenes or Big Mac containers to depict an obese corpse."

    Don't give the government any ideas, Mr Chapman.

    1. Just put Grimace on the Big Mac container. He is a disgusting, fat creature and will certainly scare off kids. Oh wait, cartoon characters (even fat ones) help sell fast food. Damn this whole marketing this is complicated.

  17. I'm actually quite impressed that Chapman appears to take a libertarian stand on this issue. It's much better than his usual TEAM BLUE rhetoric. Maybe we're rubbing off on him.

    1. anon's been rubbing off on Chapman.

    2. What team blue rhetoric? Care to give examples? Chapman seems pretty consistently libertarian to me.

  18. He could be my new favorite judge.

  19. On a side note, in Brasil they have had these images for years. I would always laugh when I heard some guy complaining about getting the picture with flacid penis cigarette. Once, some dude actually traded back the pack that he was handed by the clerk. nao, I want the one with the heart disease or cancer, anything but this one!

  20. Heads up liberturds. Smoking cigarettes is the best way to stick it to the Fed.

  21. Man I know if cigarette packages had those gross pictures of black lungs and stuff that would have made me quit smoking earlier

  22. Just because donut producers aren't forced to put obese people on their packaging, doesn't mean they shouldn't be. The same goes for car companies.
    I like the article, but I don't see how this particular analogy works.

  23. >Nobody loves tobacco companies

    Actually, I do. their product is the only thing keeping me from climbing a very tall tower with a rifle and a backpack full of ammmo.


  24. The late comedian Bill Hicks had a riff on cigarette packaging

    "...just don't get the ones that says 'throat polyps'"

  25. It is better to curb ciggarette manufacturing and even Tobacco growing so as to make the world Smoking free.

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