FDA's ORDER COMPELLING SPEECH GOES UP IN SMOKE

By Attorney Jonathan Emord
Author of "The Rise of Tyranny" and
"Global Censorship of Health Information"
November 21, 2011
NewsWithViews.com

On November 7, 2011, U.S. District Court Judge Richard J. Leon issued a preliminary injunction barring the FDA from compelling cigarette companies to place graphic color images (such as diseased lungs and a cadaver bearing chest staples on an autopsy table) on over 50% of the front and back panels of cigarette packages.

Although cigarettes are unquestionably vile, deleterious to health in many grave ways, the FDA's action is equally grotesque because it presumes to possess a power over speech expressly denied the federal government by the First Amendment.

Judge Leon's decision is a First Amendment tour de force. It stands as a model in defense of private liberty against an agency's passionate effort to disenfranchise and confiscate the property and speech rights of a popularly despised group, the cigarette manufacturers.

FDA spent millions on a massive statistical survey to see if certain graphic images forced upon cigarette packages would decrease smoking rates. It discovered that the images would not. Indeed, the record reveals that the 9 graphic images FDA decided would have to appear on a rotating basis on every cigarette package would yield, by FDA's own admission, no more than a .088% reduction in smoking rates. In other words, FDA's best evidence revealed that its compelled speech would produce essentially no change in rates of smoking. In other words, although its compelled speech was admittedly ineffectual, FDA believed it appropriate to force private parties to pay for dissemination of the state propaganda message anyway.

FDA had a hard time logically explaining to Judge Leon why its compelled speech served its interest in smoking cessation. Unsuccessful in proving its propaganda capable of dissuading smokers, FDA settled on a different measure of success: shock value. It asked its survey team to determine which images would provoke a high level of "salience," a sophisticated word meaning shock.

The 9 color images FDA chose include several that are quite shocking: a man exhaling cigarette smoke through a tracheotomy hole; a plume of cigarette smoke surrounding an infant receiving a kiss from the baby's mother; a pair of diseased lungs next to a pair of healthy ones; a diseased mouth covered with cancerous lesions; a man breathing into an oxygen mask; a bare chested man on an autopsy table with medical staples over a surgical scar; and a woman weeping uncontrollably. FDA apparently failed to consider the emotional effect the images might have on non-smokers, children, or non-smoking relatives of smokers. Undoubtedly the images would produce psychological impacts adverse to the public at large.

The cigarette company plaintiffs said they had no objection to written warning statements. They only objected to the graphic images FDA required cover over 50% of their package space.

The FDA had the audacity to argue to Judge Leon that he lacked the authority to bar FDA from compelling use of the graphic images. In other words, FDA in effect took the position before Judge Leon that it was above the law, that the Judge did not have the power to issue an injunction barring the First Amendment violation. That position is indicative of the kind of arrogant assumption of power beyond legal limits that FDA routinely presupposes it has (and sometimes intimidates courts into believing it has). Judge Leon was not impressed, writing, "there is no genuine question about this court's authority to issue injunctive relief in this case."

On the merits, Judge Leon found the injunction against FDA justified in no small measure because the FDA rule unconstitutionally compelled speech. Judge Leon reiterated the fundamental First Amendment tenet that the right to speak freely includes the corollary right to remain silent, to refrain from speaking at all.

Under our First Amendment, the speaker has the right to determine the content of his message, without which control he could scarcely be said to possess freedom of speech. He may refuse at will to convey state propaganda and, indeed, may go further and criticize the state's preferred message without legal risk of retaliation. Whatever may be said about the government's power to mandate health warning statements, Judge Leon found the graphic images required by the FDA not to be informational warnings but to be evocative depictions with no certain meaning beyond shock value.

By confiscating over 50% of the cigarette package for propaganda, FDA went beyond a limited intrusion to require an essential health warning for the unwary. While cigarettes are an easy victim given their horrible effects on the body, the precedent arising from condoning FDA's extraordinary assumption of control over private property is more horrific, because it devalues the speech rights of every American. FDA's taking of private property to propound its propaganda threatens the freedom of all property owners and speakers. If FDA can constitutionally compel cigarette packages to carry graphic images condemning smoking, what is to stop FDA from compelling other medically disfavored products from being required to carry other FDA propaganda? For example, what would prevent FDA from requiring that junk food labels carry images of obese patients in varying stages of distress (on heart-lung machines; standing on scales revealing obesity; or wheel-chair bound)?

If the state can crowd out private fora for speech to permit carriage of a "public interest" message, it can supplant free information exchange with state orthodoxy, and it can render dissent anemic. Those are forms of enslavement and disenfranchisement, Consequently, Judge Leon has proven that a jurist mindful of constitutional limits can ensure the supremacy of the Constitution over the raw exertion of regulatory power to deprive basic freedoms. By his decision, Judge Leon not only secured the rights of the plaintiffs in the case against an abusive government, he established important precedent in defense of all Americans' rights to freedom of speech. We can only hope that his good decision endures, and that FDA is forced to accept it.

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