The butt stops here: the Tobacco Control Act's anti-smoking regulations run afoul of the First Amendment.

• Author: Weatherby, Danielle

1. INTRODUCTION II. A CHRONICLE OF TOBACCO LEGISLATION: THE SLIPPERY SLOPE OF LEGISLATION REQUIRING HEALTH DISCLAIMERS ON CIGARETTE PACKAGING III. THE TOBACCO CONTROL ACT'S GRAPHIC IMAGES MANDATE AND THE FIRST AMENDMENT DIVIDE A. Discount Tobacco City & Lottery v. United States B. R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Administration IV. GRAPHIC IMAGES AS COMPELLED, VIEWPOINT DISCRIMINATORY SPEECH A. The Commercial Speech Doctrine B. Compelled Commercial Speech 1. Zauderer--Rational Basis Standard of Judicial Review 2. Strict Scrutiny Review 3. Central Hudson Intermediate Scrutiny V. CONCLUSION I. INTRODUCTION

   Picture this: the upper body of an anonymous man, cigarette in hand, mouth parted in shame, as he exhales the ominous white smoke of his relentless habit through the black tracheotomy in the small of his neck. (1) Or perhaps, visualize: a healthy, pink, life-sustaining lung alongside a brown, disease-riddled lung, overgrown with foreign green and yellow tissue. (2) Try to envision: lips pulled back to reveal a crooked, rotting set of stained teeth, or what is left of them, with a crimson, flesh-eating wound, relentlessly devouring the raw skin surrounding it. (3) Finally, imagine: a lifeless, naked cadaver atop a crisp, white sheet, the dual cavities of his chest fastened together with a vertical row of staples, hiding the internal chaos left behind by the autopsy. (4)

   Did the foregoing narratives elicit a visceral response? Did the written descriptions alone incite feelings of unease, anxiety, and trepidation? If so, imagine the intensity of the response one might experience at the sight of the actual graphic images themselves.

   This October, (5) every consumer who purchases a pack of cigarettes will be forced to view these and five other graphic images, along with prominent new textual warnings, including the capitalized "1800-QUIT-NOW," the toll free phone number to a smoking cessation hotline. (6) Pursuant to a major component of the 2009 Family Smoking Prevention and Tobacco Control Act ("Tobacco Control Act" or "Act"), (7) the most comprehensive and aggressive tobaccos legislation to date, every cigarette package must soon bear one of nine color graphic images depicting the negative health consequences of smoking (9)

   These nine graphic images, released by the Food and Drug Administration ("FDA") for publication on all cigarette packages this fall, were designed specifically with the intent to shock the consumer and change his or her habits. (10) They express a subjective point of view and convey a strong message, beyond the purely factual information historically printed on tobacco and cigarette packaging. (11)

   Indeed, the message communicated through these highly graphic and disturbing images--namely, if you smoke, you will suffer the consequences depicted in these images--carry with them a high "fear appeal," (12) a factor that the government hopes will impact consumer decision-making. (13) In fact, studies indicate that visual stimuli with emotional imagery, such as these, create certain intensified physiological responses, including an elevated heart rate, a greater propensity for the "[s]tartle [r]eflex and the [e]yeblink," (14) and the amplification of skin conductance. (15) These physiological changes are a natural response to the emotions manifested in the pictures. (16) The pain, hopelessness, and desperation on the faces and images portrayed in color trigger an emotional response, driving thoughts, feelings, and ultimately, human behavior. (17)

   Unlike the health disclaimers currently published on all cigarette packages, the Tobacco Control Act's graphic images communicate a subjective and highly controversial message, eliciting a physiological and emotional response in the viewer, (18) According to Congress, (19) these images may ultimately drive long-term smokers to quit and decrease the incidence of first-time tobacco use, especially among adolescents. (20) But, while the asserted interest is certainly substantial, and perhaps compelling, (21) the government cannot achieve this interest by requiring tobacco companies to adopt and express its subjective message, which constitutes strong antismoking advocacy, especially where less restrictive alternatives exist. (22) The Act's graphic images mandate tramples on the First Amendment, which generally tolerates compelled commercial speech only where the speech is factual and non-subjective. (23)

   Part II of this article will present a brief chronicle of federal tobacco legislation, paying particular attention to the historical evolution of the size, scope, and impact of required warning labels on cigarettes and other tobacco products. Part III will outline the current state of the law and the government's most recent effort to up the ante with respect to the cigarette package-labeling requirement. Percolating their way through the federal courts are two cases, which present inapposite analyses of the Tobacco Control Act's graphic images mandate. (24) Since the graphic images labeling requirement presents novel First Amendment issues, and there is currently a split among the circuits, this case may ultimately reach the Supreme Court. (25) Therefore, this Part will also highlight the competing arguments on both sides of the issue that may be germane, if and when the Supreme Court grants certiorari to decide the constitutionality of the graphic images.

   Part IV of this article will discuss the First Amendment jurisprudence that impacts the constitutionality of the Tobacco Control Act's graphic images mandate. In light of the recent Supreme Court decision on the Affordable Care Act where Congress attempted to effectuate a policy objective under the guise of the Commerce Clause, this Part will also comment on the way in which Congress improperly relies on its Commerce Clause powers to justify the Tobacco Control Act's graphic images mandate. (26) Congress' reliance on its Commerce Clause powers to control behavior and express its own anti-smoking message ultimately exceeds the bounds of the commercial speech doctrine. Bootstrapping speech regulations, which offend the First Amendment, to its Commerce Clause powers is an inappropriate way for the government to attack the harms caused by smoking. Indeed, the use of speech regulations to dissuade unhealthy behavior could lead down a slippery slope, (27) where required graphic images appear on a wide range of consumer products in an attempt to change Americans' unhealthy habits.

   In conclusion, this article posits that the graphic images mandate of the Tobacco Control Act cannot pass constitutional muster. Exceeding the commercial speech doctrine that governs the current labeling requirements for tobacco and cigarette packages, the Tobacco Control Act's graphic images mandate runs afoul of longstanding First Amendment jurisprudence, which guarantees the freedom not only to "speak freely" but also "to refrain from speaking at all." (28) Despite its worthwhile goal of changing unhealthy behavior, government cannot compel private entities to adopt and express a subjective, viewpoint-based message, even when there is a compelling government interest at stake. (29) In order for this speech regulation to be upheld, the government would have to show not only a compelling interest, but also that the graphic images mandate is the least restrictive means of achieving that interest. (30) Where so many other less restrictive means of regulating cigarettes and tobacco products are available, the graphic images mandate will not withstand judicial scrutiny. (31)

   Finally, these graphic images are "a primitive but effective way of communicating ideas.... a short cut from mind to mind." (32) The First Amendment shields "the sphere of intellect" from government intrusion (33) Tobacco companies are no less deserving of protection from compelled speech in the form of symbols employed to change ideas and regulate behavior than other persons or entities. The fact that the government's compelled speech targets commercial products and supports a worthy goal does not override the important and fundamental free speech rights that are at stake.34

2. A CHRONICLE OF TOBACCO LEGISLATION: THE SLIPPERY SLOPE OF LEGISLATION REQUIRING HEALTH DISCLAIMERS ON CIGARETTE PACKAGING

   The days of dapper men in three-piece suits sipping martinis in a swank, smoke-filled nightclub are long gone. (35) Despite the widely popular influence of hit shows like Mad Men, which glamorize smoking, (36) the national anti-smoking campaign is in full swing, with the government holding the reigns as ringleader. (37) However, the requirement that tobacco and cigarette companies publish health warnings on their packaging is a relatively new legal phenomenon, (38)

   It was not until 1962 when "the Surgeon General of the Public Health Service appointed an advisory committee ("the Committee") to study all published literature bearing on the relationship of smoking to health." (39) Ultimately, the Committee "studied the problem for 18 months." (40) In 1964, based on the Committee's findings, the then-Surgeon General Luther Terry issued a report on smoking, linking tobacco use to multiple fatal diseases, such as lung cancer and heart disease. (41) In response, "the Federal Trade Commission issued a notice of proposed rulemaking, proposing the establishment of a trade regulation rule under which the labeling and advertising of cigarettes would be required to contain a warning of health hazards involved in cigarette smoking." (42) Subsequently, after several proposed variations of the final bill, (43) in 1965, Congress passed the Federal Cigarette Labeling and Advertising Act ("Cigarette Labeling and Advertising Act"), (44) the first piece of legislation to introduce required warning labels on tobacco products. (45) The stated purpose of the Act was to "adequately inform[] [the public] that cigarette smoking may be hazardous to health by inclusion of...