Give them liberty to give us death?

• Author: Balkin, J.M.
• Position: Cigarette advertising

It seemed like a great way to promote family values. On August 10, President Clinton announced a campaign to protect children from the dangers of smoking by severely restricting cigarette advertising on outdoor billboards, at sporting events, in magazines, and on promotional items.

Hours later, however, opponents were in court claiming that the regulations violated the First Amendment. The protests of censorship came not from political dissenters and avant-garde artists, but from some of the wealthiest corporations in the United States: Philip Morris and R.J. Reynolds. Is Bill Clinton the Joe McCarthy of our times?

Hardly. The First Amendment guarantees the right to freedom of speech, but not all speech is equally protected. Securities fraud, perjury, and sexual harassment, to name three examples, get no First Amendment protection. The central types of protected speech are political and artistic speech, which promote the values of democratic culture, self-governance, personal autonomy, and self-expression. The liberty interest in commercial speech, on the other hand, is not much different from the liberty to pursue a trade or business, which is generally subject to regulation by the democratic process. The Supreme Court has held that commercial speech, or "speech which proposes a commercial transaction," receives considerably less protection. Until 1976, in fact, the Supreme Court didn't recognize its constitutional status at all.

Thus, the government can ban advertisements for the sale of heroin, but it cannot jail communists who advocate the violent overthrow of the U.S. government. False and misleading political speech is constitutionally protected, but there is no similar privilege for false or misleading advertisements. The government can even require businesses to disclose information about products that they would rather keep under wraps, if this would prevent misleading consumers. But the rules are different in politics. For better or worse, we can't sue politicians to force them to tell the whole truth.

The Supreme Court protects commercial speech because of the value in distributing true information about products to willing consumers. Ironically, most advertising, and most cigarette advertising in particular, is of a completely different character. Modem promotion of beer and cigarettes is primarily image advertising; it does not convey information about a product but instead tries to associate it with something the consumer...