# Do the new tobacco warnings violate 1st Amendment rights? **URL:** \ **Category:** Great Debates\ **Created:** [August 17, 2011, 6:58am UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003 "2011-08-17T06:58:58Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 1, 2012, 6:28pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/201 "2012-03-01T18:28:47Z")
> [@Enderw24](#): > > I don’t understand the distinction. A picture of a guy smoking through his trachea hole absolutely increases consumer awareness of smoking risks. It may be true that it provokes a strong emotional response but if that potential consumer chooses not to start smoking because of that picture, how can it not be said that that consumer wasn’t doing so because he became aware of the risks of smoking? When the government forces you to say something, they are generally some strong limits on what they can make you say. The trachea hole is a possible effect of smoking, but it’s hardly a guaranteed effect. The rule up until now has been that when the government compels speech, it’s limited to strictly factual assertions. Would you say that the trachea hole’s arrival in your life is a strictly factual assertion? ---
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [March 1, 2012, 6:56pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/202 "2012-03-01T18:56:01Z")
> [@Bricker](#): > > Would you say that the trachea hole’s arrival in your life is a strictly factual assertion? More likely than me becoming an old black man. I don’t think there was anything implied that smoking would guarantee that result. But if we’re asking whether it educates the consumer as to a potential risk, which is apparently the threshold the court is using, I believe that it does. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 1, 2012, 6:57pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/203 "2012-03-01T18:57:08Z")
> [@Enderw24](#): > > More likely than me becoming an old black man. > > I don’t think there was anything implied that smoking would guarantee that result. But if we’re asking whether it educates the consumer as to a potential risk, which is apparently the threshold the court is using, I believe that it does. It educates the consumer as to the existence of a risk, but not the likelihood. ---
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [March 1, 2012, 7:02pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/204 "2012-03-01T19:02:42Z")
> [@Bricker](#): > > It educates the consumer as to the existence of a risk, but not the likelihood. As do these: [ul] [li]SURGEON GENERAL’S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health. [/li] [li]SURGEON GENERAL’S WARNING: Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight.[/li] [li]SURGEON GENERAL’S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy.[/li][/ul] Indeed, in the third one, it pointedly states that smoking causes lung cancer. Not that it _may_ cause lung cancer. Would you say that lung cancer’s arrival in your life is a strictly factual assertion? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 1, 2012, 7:18pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/205 "2012-03-01T19:18:19Z")
> [@Enderw24](#): > > As do these: > [ul] > [li]SURGEON GENERAL’S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health. [/li] > [li]SURGEON GENERAL’S WARNING: Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight.[/li] > [li]SURGEON GENERAL’S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy.[/li][/ul] > > Indeed, in the third one, it pointedly states that smoking causes lung cancer. Not that it _may_ cause lung cancer. Would you say that lung cancer’s arrival in your life is a strictly factual assertion? The first two are clearly factual assertions. The third is a bit more problematic, but at least it can be said that factually, smoking does cause cancer, in the sense that it is obviously a causative factor in carcinogenesis. That assertion is at least a dry, factual statement. It’s distinguished from the picture by the picture’s much more speculative nature. The picture is, as the Institute of Medicine acknowledged, an attempt to emotionally persuade the viewer, not an attempt to deliver factual information. ---
**Author:** ![curioushat](https://avatars.discourse-cdn.com/v4/letter/c/b9e5f3/32.png) [@curioushat](https://boards.straightdope.com/u/curioushat)\ **Post date:** [March 1, 2012, 8:20pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/206 "2012-03-01T20:20:43Z")
Well, since the state regulated tobacco, it may place generally any regulation that it wants on tobacco products. For example, I don’t recall it being illegal for the government to ban advertisements to minors, although that would be along the same line. In addition, the government has absolutely NO obligation to provide accurate facts to citizens. There is simply no way to definitely answer the question, for 100% certain. Instead, the government takes its best guess. Part of the license to dispense tobacco products includes the heavy warnings on the packages. The FDA also requires food makers to provide a list of ingredients on their packages, sometimes table of nutritional content. That’s not a violation of free speech? What if a company doesn’t want their packaging cluttered with useless facts that nobody reads or takes heed to? When marijuana becomes legal to sell and regulated, there is absolutely no chance that the federal government does not mandate the packages to be labeled with completely bullshit science. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 1, 2012, 8:41pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/207 "2012-03-01T20:41:45Z")
> [@curioushat](#): > > Well, since the state regulated tobacco, it may place generally any regulation that it wants on tobacco products. No. It may not place any regulation it wants. As pertains to this case, it may not force the manufacturers to speak about their product in ways that are not directly factual. > [@](#): > > For example, I don’t recall it being illegal for the government to ban advertisements to minors, although that would be along the same line. There is a difference between banning and compelling speech. When the government forces you to say something, there’s a very different effect than the one that happens when the government forbids you from saying something. > [@](#): > > In addition, the government has absolutely NO obligation to provide accurate facts to citizens. Whether true or not in general, the government cannot compel your speech unless it is to make accurate and factual claims. > [@](#): > > Part of the license to dispense tobacco products includes the heavy warnings on the packages. The FDA also requires food makers to provide a list of ingredients on their packages, sometimes table of nutritional content. That’s not a violation of free speech? What if a company doesn’t want their packaging cluttered with useless facts that nobody reads or takes heed to? They cannot complain, because the tables of nutritional content are factual matters. Can the First Amendment exist that “guards the individual’s right to speak his own mind, but left it open to public authorities to compel him to utter what is not on his mind?” That’s a quote from a Supreme Court case dealing with compelled speech – admittedly by individuals. I’m wondering which of your confidently conclusive statements above arose from an examination of the case law surrounding this issue. ---
**Author:** ![curioushat](https://avatars.discourse-cdn.com/v4/letter/c/b9e5f3/32.png) [@curioushat](https://boards.straightdope.com/u/curioushat)\ **Post date:** [March 1, 2012, 8:56pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/208 "2012-03-01T20:56:07Z")
> [@Bricker](#): > > They cannot complain, because the tables of nutritional content are factual matters. > > Can the First Amendment exist that “guards the individual’s right to speak his own mind, but left it open to public authorities to compel him to utter what is not on his mind?” > > That’s a quote from a Supreme Court case dealing with compelled speech – admittedly by individuals. > > **I’m wondering which of your confidently conclusive statements above arose from an examination of the case law surrounding this issue.** Do you really think so? What defines a fact? For example, the government compels food items with 0.49grams of trans fat as 0 grams of trans fat. Is that factual? Thanks for the Supreme Court quote, glad you included your disclaimer, but you also know that is completely irrelevant since corporations are not individuals. To answer the last one, none. I’m not a legal scholar I just graduated high school. The warning label on the package is not speech given by the tobacco company. It is a surgeon general’s warning. It is not a statement generated by a tobacco company. It is a statement generated by the FDA/Surgeon General. Is the government allowed to place its own speech on private packaging? I don’t know the answer for you. ---
**Author:** ![Odesio](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/odesio/32/20003_2.png) [@Odesio](https://boards.straightdope.com/u/Odesio)\ **Post date:** [March 1, 2012, 9:31pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/209 "2012-03-01T21:31:26Z")
> [@curioushat](#): > > The warning label on the package is not speech given by the tobacco company. It is a surgeon general’s warning. It is not a statement generated by a tobacco company. It is a statement generated by the FDA/Surgeon General. Is the government allowed to place its own speech on private packaging? I don’t know the answer for you. It is speech given by the tobacco company even if the statements originate and are compelled by the government. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [March 1, 2012, 9:38pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/210 "2012-03-01T21:38:49Z")
> [@Snowboarder\_Bo](#): > > 4 out of 5 of the largest tobacco companies have apparently filed a lawsuit so they won’t have to use the new graphic warnings the FDA wants them to put on their product, claiming that it violates their right to free speech. > > [ > > Apparently, they are also (separately) suing to stop the law that made the graphic warnings possible, 2009’s [url=[Family Smoking Prevention and Tobacco Control Act - Wikipedia](http://en.wikipedia.org/wiki/Family_Smoking_Prevention_and_Tobacco_Control_Act)]Family Smoking Prevention and Tobacco Control Act]([http://hosted.ap.org/dynamic/stories/U/US\_CIGARETTE\_WARNING\_LAWSUIT?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2011-08-16-21-43-13](http://hosted.ap.org/dynamic/stories/U/US_CIGARETTE_WARNING_LAWSUIT?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2011-08-16-21-43-13)). This law gave the FDA the power to regulate the tobacco industry, including regulating nicotine levels and additives in tobacco products. > > Constitutionally, is there any problem with the new graphic warnings? Is this some “slippery slope” that will make libertarian-types and/or pro-business factions cry out dire warnings? Or is it good public policy? > > I’m curious to know what others think of the underlying FSP&TCA as well: is it over-reaching by the government or is it constitutionally supported regulation? I don’t blame them for trying but considering that the side effect of smoking cigarettes are so bad that the FDA would ban it even if it made you lose weight and gave you great sexual prowess, if they were permitted to do so. ---
**Author:** ![curioushat](https://avatars.discourse-cdn.com/v4/letter/c/b9e5f3/32.png) [@curioushat](https://boards.straightdope.com/u/curioushat)\ **Post date:** [March 1, 2012, 9:39pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/211 "2012-03-01T21:39:51Z")
> [@Damuri\_Ajashi](#): > > I don’t blame them for trying but considering that the side effect of smoking cigarettes are so bad that the FDA would ban it even if it made you lose weight and gave you great sexual prowess, if they were permitted to do so. Funny you say that because it does make you lose weight. What if I came up with a wonder drug that had no negative side effects? :smack: :smack: lol ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 2, 2012, 12:35am UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/212 "2012-03-02T00:35:16Z")
I think that the warnings vs. pictures can be distinguished because the written warnings can reasonably be construed as providing information to a consumer about possible health risks. The pictures serve no purpose other that to shock and affirmatively attempt to make people not purchase cigarettes out of raw fear. The manufacturer of a legal product shouldn’t have to pay to attempt to persuade their customers NOT to buy its product and offend them with graphic and disturbing pictures. Part of advertising is puffery anyways. Should Budweiser have to have middle aged white guys with giant beer guts in their ads? ---
**Author:** ![FinnAgain](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/finnagain/32/12500_2.png) [@FinnAgain](https://boards.straightdope.com/u/FinnAgain)\ **Post date:** [March 2, 2012, 3:40am UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/213 "2012-03-02T03:40:23Z")
> [@Bricker](#): > > The picture is, as the Institute of Medicine acknowledged, an attempt to emotionally persuade the viewer, not an attempt to deliver factual information. Rather obviously it is factual and you never did answer how a picture of someone with cancer is not factual, but the word “cancer” is. Facts can, also obviously, be used to persuade someone. “Don’t drink bleach, it’s bad for you!” would not, by most rational folks, be argued to be a non-factual statement because it’s designed to persuade. Can you clarify, _explicitly and clearly_, what is not factual and/or accurate about the photos which were to be included as warning labels? ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [March 2, 2012, 2:36pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/214 "2012-03-02T14:36:55Z")
> [@FinnAgain](#): > > "SURGEON GENERAL’S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health. " > > Do you claim this does not advocate quitting? > If not, then why do the pictures cross any clear bright line, and what is that bright line so that we may know for certain if a picture crosses it or not? I do not construe written factual information about a product for sale to the public, displayed on the product itself, as advocacy to not purchase the product. I construe the above statement as factual information designed to assist the public in making an informed decision to purchase the product. The above statement is providing factual information the product poses serious health risks when consumed and abstaining from use of the product or quitting reduces health risks associated with use of the product. In regards to pictures, before I can give an answer I need to know specifically what picture or pictures you have in mind? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 2, 2012, 4:31pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/215 "2012-03-02T16:31:46Z")
> [@FinnAgain](#): > > Rather obviously it is factual and you never did answer how a picture of someone with cancer is not factual, but the word “cancer” is. Facts can, also obviously, be used to persuade someone. “Don’t drink bleach, it’s bad for you!” would not, by most rational folks, be argued to be a non-factual statement because it’s designed to persuade. > > Can you clarify, _explicitly and clearly_, what is not factual and/or accurate about the photos which were to be included as warning labels? Yes. One photo shows a man smoking through a hole in his throat. That is not a factual or accurate prediction of the results of smoking. It’s a possible outcome, but not a certain or even likely outcome. ---
**Author:** ![Odesio](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/odesio/32/20003_2.png) [@Odesio](https://boards.straightdope.com/u/Odesio)\ **Post date:** [March 2, 2012, 4:41pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/216 "2012-03-02T16:41:59Z")
> [@Bricker](#): > > One photo shows a man smoking through a hole in his throat. That is not a factual or accurate prediction of the results of smoking. It’s a possible outcome, but not a certain or even likely outcome. Does that matter? As I read your link, the judge didn’t seem concerned with how factual the images were. He was concerned with the provocative nature of the photos which were “neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks.” ---
**Author:** ![FinnAgain](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/finnagain/32/12500_2.png) [@FinnAgain](https://boards.straightdope.com/u/FinnAgain)\ **Post date:** [March 2, 2012, 4:52pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/217 "2012-03-02T16:52:03Z")
> [@Bricker](#): > > One photo shows a man smoking through a hole in his throat. That is not a factual or accurate prediction of the results of smoking. It’s a possible outcome, but not a certain or even likely outcome. People can smoke their entire lives without getting cancer. Is it therefor non-factual to say that smoking causes cancer? What percentage, _exactly_ are you using to claim that it’s no longer accurate? Do you contend that “not guaranteed to occur” means “not accurate” in the context of displaying potential consequences of smoking? Should the warning about low fetal birth weight be removed since, after all, men can’t get pregnant so it’s not an accurate warning for dudes? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 2, 2012, 5:11pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/218 "2012-03-02T17:11:19Z")
> [@Odesio](#): > > Does that matter? As I read your link, the judge didn’t seem concerned with how factual the images were. He was concerned with the provocative nature of the photos which were “neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks.” It does matter. The footnote in the opinion relating to these images reads as follows: > [@](#): > > The FDA conveniently refers to these graphic images as “graphic warnings.” While characterizing the mandatory textual statements as “warnings” seems to be a fair and accurate description, characterizing these graphic images as “warnings” strikes me as inaccurate and unfair. At first blush, they appear to be more about shocking and repelling than warning. Accordingly, I will refer to them simply as graphic images, and set this self-serving “warning” label aside for closer analysis on another day. The images themselves are described, _seriatim_, as follows: [ol] [li]a man exhaling cigarette smoke through a tracheotomy hole in his throat[/li][li]a plume of cigarette smoke enveloping an infant receiving a kiss from his or [/li]her mother [li]a pair of diseased lungs next to a pair of healthy lungs[/li][li]a diseased mouth afflicted with what appears to be cancerous lesions[/li][li] a man breathing into an oxygen mask[\*]a bare-chested male cadaver lying on a table, and featuring what appears to be post-autopsy chest staples down the middle of his torso[/li][li]a woman weeping uncontrollably[/li][li]a man wearing a t-shirt that features a “no smoking” symbol and the [/li]words “I Quit.” [li]a stylized cartoon (as opposed to a staged photograph) of a premature baby in an incubator[/li][/ol] The FDA conceded at trial that “some of the photographs were technologically modified to depict the negative health consequences of smoking.” They also conceded that the images’ “salience” - defined at various points as a warning’s ability to evoke emotion - was a primary selection criterion. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 2, 2012, 5:12pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/219 "2012-03-02T17:12:40Z")
> [@FinnAgain](#): > > Should the warning about low fetal birth weight be removed since, after all, men can’t get pregnant so it’s not an accurate warning for dudes? You know what? I’m going to leave this question for you to figure out. If you can’t, I guess this entire episode will leave you baffled. I will help you by pointing out that in this lawsuit, the plaintiffs did not object to the textual content of any of the warnings. Nor have they ever objected (in the context of a lawsuit, anyway) to any of the previous warnings mandated by the FDA. So their objection doesn’t seem to rest on text. ---
**Author:** ![FinnAgain](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/finnagain/32/12500_2.png) [@FinnAgain](https://boards.straightdope.com/u/FinnAgain)\ **Post date:** [March 2, 2012, 5:16pm UTC](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003/220 "2012-03-02T17:16:38Z")
So, in other words, you have no actual threshold to determining accuracy, even when a condition is 100% factual and proven to be caused by smoking. And you have no answer for why a factual condition which cannot possibly be caused by smoking for 50% of the population is valid but another factual condition which can occur for 100% of the population isn’t valid. " ‘Shut up’, he explained" Upon seeing your edit, I will point out that you never substantiated your claim on the factual, actual nature of the images. I’m not concerned with whether or not the suit rested on text, but your previous, unsubstantiated claims about the text. [Previous page](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003.md?page=10) [Next page](https://boards.straightdope.com/t/do-the-new-tobacco-warnings-violate-1st-amendment-rights/593003.md?page=12)