Why Do Tobacco Companies Get A Better First Amendment Than Doctors?

The Family Smoking Prevention and Tobacco Control Act of 2009 instructed the FDA to develop new cigarette labels that include “color graphics depicting the negative health consequences of smoking.” Yesterday, a federal judge in DC struck down these labels on the ground that they violate the First Amendment’s protections against compelled speech:

A fundamental tenant of constitutional jurisprudence is that the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.” . . . In the arena of compelled commercial speech, however, narrow exceptions do exist and allow the Government to require certain disclosures to protect consumers from “confusion or deception.” Indeed, courts apply a lesser standard of scrutiny to this narrow category of compelled speech through which the Government may require disclosure only of “purely factual and uncontroversial information.” . . .

[A]fter reviewing the evidence here it is clear that the Rule’s graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard. To the contrary, 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 a strong emotional response calculated to provoke the viewer to quit or never start smoking.

As a matter of constitutional law, this is not crazy. The First Amendment does provide robust protections against compelled speech, and there is no exception to the First Amendment simply because a lot of people don’t like the plaintiff.

Sadly, however, many federal judges don’t seem to get this, at least in the context of abortion. A few weeks ago, the Fifth Circuit upheld a Texas law mandating government-compelled speech by doctors. Texas law requires doctors to tell their patients medically-irrelevant information, such as stating that the fetus has a heartbeat and discussing “the presence of external members and internal organs,” before they may perform an abortion. In other words, the law forces Texas doctors to advocate for the government’s anti-abortion agenda no less than the FDA labels require cigarette companies to advocate for an anti-smoking agenda, and yet the Fifth Circuit upheld the law on the grounds that the First Amendment is weaker in the face of laws that “express[] a preference for childbirth over abortion.”

Nor is this case an isolated incident. The Eighth Circuit upheld a law requiring doctors to tell their patients that abortion will “terminate the life of a whole, separate, unique, living human being,” a statement that is both controversial and of uncertain factual basis — and thus would easily fail First Amendment scrutiny under the standard articulated by the judge in the tobacco case.

Simply put, if it is unconstitutional to require tobacco companies to print graphic anti-smoking labels, than it must also be unconstitutional to force doctors to parrot the state’s views on the abortion debate. America does not have one constitution for wealthy corporations and another, inferior constitution for everyone else.