I think that others have pointed out the precedent that in order for the government to restrict an advertiser’s first amendment rights, there is a balancing test in the necessity of getting the message out and the first amendment rights of the advertiser.
Other posters have said that text warnings aren’t enough, we need picture warnings. The question is has that fact tipped the scales too far away from merely informing versus forcing the tobacco companies to say something that goes against their interests in selling the product. I think it does. The text supplies a sufficient statement of the health risks (and, please, like anyone needs warnings on the pack to know that smoking is bad for you; to begin with that’s government nonsense) and adding a disgusting picture seems to serve no purpose other than giving the tobacco companies a giant “Fuck You.”
How far would the supporters allow this to go? Would you require the purchaser of each pack to watch a 1 minute video of a person with end stage lung cancer heaving and begging to die? Should the tobacco companies have to produce and pay for that video?
What are you even talking about? My “comments” about other posters? You mean, where I’ve posted their own words claiming I’ve said things that I haven’t? Where I’ve posted their own words claiming I haven’t said things that I have? Where I’ve posted my own words, right next to their own words, where I’ve quoted the things I’ve said that they claim I haven’t?
That’s rude?
On what planet?
Then you should probably recuse yourself from modding this thread Marley, because rather obviously not only did I mention the issue of the half century of precedent from my very first post, which Bricker claimed I did not do in his post 41, but my argument also included numerous other points besides the simple fact that the ICC was at issue, which Bricker also claimed did not happen in his post 41.
If you think that’s accurate, and want to moderate me for pointing out the factual inaccuracies while pretending that’s rude, there’s a real problem here.
You mean, someone claimed I said something I did not, claimed I did not say something that I clearly did (repeatedly), I pointed out that fact and I’m in the wrong for pointing it out? Do please explain the factual basis for your claims.
Who are people going to believe, their lying eyes and the cited, quoted words, or your claims about them?
Of course, I could point out that even you quickly admitted that your claims in post 41 were false as you swiftly backpedaled from the claim that I had not discussed the issue of precedent to the (also false) claim that I had somehow incorrectly done so.
But hey, if people weren’t convinced to ignore the facts as Marley has done, then your use of the bandwagon fallacy surely clinches it.
For those following along at home this is the post that Marley claims is accurate, and that Bricker wants to validate via the bandwagon fallacy.
This contains two fictional claims. The first is that I stated, anywhere at all, that " we [can] analyze this question by merely pointing out the Commerce Clause." The second that I did not say, but merely intended to say, that "we could regulate warning labels because we’ve been doing it forever. "
Of course, pointing out the errors with these claim is trivial. Let’s begin.
Did I, in fact, point out from my very first post in the thread that the issue was not that we could “merely” point to the ICC, but that there were other issues, including roughly half a century of precedent regarding warning labels on cigarettes? Yes.
Does that, in fact, explicitly address the dynamic that “we [can] regulate warning labels because we’ve been doing it forever?” Yes.
But of course that’s not all. Did I, other than that first post, then switch to the argument that we could “merely” reference the ICC as Marley now contends? No. In my second post, not only did I reiterate the issue of precedent and warning labels, but I talked about the history of labels on consumer goods in general and the ability for the government to control advertising.
Did I, for my third post in the thread, then directly (again) raise the issue of precedent wrt smoking and warning labels, directly in response to Bricker? Yes.
Did NotreDame in fact understand that I was not saying that we could “merely” cite the ICC be be done with it? Yes, because he responded to several of my other arguments. Did I, in fact, say that we could “merely” cite the ICC and be done with it, as Bricker claimed and Marley agreed? No, I explicitly pointed out that NotreDame’s own cites supported my argument.
Readers will also note the repeated mentions of precedent, something that Bricker claimed (and Marley agrees) that I intended to discuss, but that I did not actually do so.
How about another mention of precedent, which Bricker and Marley claim did not happen?
And another, with bonus “not just merely citing the ICC?”
That of course brings us to post 41, which Bricker and Marley contend is accurate, which states that I argued that we "[can] analyze this question by merely pointing out the Commerce Clause."and that I did not, in fact, “[say that] we could regulate warning labels because we’ve been doing it forever.”
Again, who you gonna believe, the quoted, cited words and your lying eyes, or Bricker’s claims? The choice is clear. After all, there’s a bandwagon involved.
Yes, there are some cases standing for the principle the government cannot compel speech and speech compulsion is a violation of the 1st Amendment. Students cannot be forced to pledge allegiance or salute the U.S. flag. West Virginia v. Barnette, 319 U.S. 624 (1943). Wooley v. Maynard, 430 U.S. 705 (1977), involved a New Hampshire license plate with the phrase “Live free or die” on it and criminal penalties for obscuring this message. See also* Riley v. National Federation of the Blind*, 487 U.S. 781 (1988) (law requiring professional fundraisers to disclose the percentage of contributions actually given to the charity is unconstitutional, although it is important to note this was not a commercial setting). In this case, however, the Court noted “purely commercial speech is more susceptible to compelled disclosure requirements.”
These cases rests on the principle the 1st Amendment protects the right to speak and the right not to speak. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); Wallace v. Jaffree, 472 U.S. 38, (1985).
We can construe labels on products informing potential consumers and customers of the potential health risks of their product as compelled speech. The case of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) stated, “the hardiness of commercial speech…make it appropriate that a commercial message…include such additional information, warnings and disclaimers, as are necessary to prevent its being deceptive.”
Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), discussed compelled speech, in a commercial setting, regarding attorney advertisements. The state required attorney advertisements for contingent-fee representation to disclose if the percentages computed before or after substracting court costs, expenses, and the "“failure to inform clients that they would be liable for costs (as opposed to legal fees) even if their claims were unsuccessful rendered the advertisement ‘deceptive.”
The Court reasoned, “The interests at stake in this case are not of the same order as those discussed in Wooley, Tornillo, and Barnette. Ohio has not attempted to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The State has attempted only to prescribe what shall be orthodox in commercial advertising, and its prescription has taken the form of a requirement that appellant include in his advertising purely factual and uncontroversial information about the terms under which his services will be available.” Id. at 651. Emphasis mine. On this basis the Court went on to hold the level of scrutiny is not strict scrutiny, or intermediate, but rational basis. The Court went on to hold the state requirement of disclosing this information in an advertisement was constitutional.
See also Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S.Ct. 1324
(2010).
It is important to note, however, whether the holding in these cases, in particular Zauder, is limited by its facts, i.e. speech compulsion was permissible to prevent confusion, deception, or from being misleading, or if the holding was broader, such as the constitutionality of speech compulsion/disclosure requirement. I know of one federal court which has addressed this question and in doing so, they construed Zauder in a broader sense, and did not understand Zauder’s holding to be limited to curing misleading, confusing, or deceptive speech. The case is N.Y. State Restaurant Association v. N.Y. City Board of Health, 509 F. Supp. 2d 351 (S.D.N.Y. 2007).
It is also important to observe, although perhaps not important, those cases involved advertisements and we are discussing disclosures on a product for sale.
But as I pointed out, that argument merely pushes the issues backwards a bit. If we’ve been doing it for half a century, then half a century ago, there was no precedent to rely upon. But of course the First Amendment still existed. So did the Commerce Clause.
So what was the rationale back then?
You can’t point to your claim of half a century of precedent as though it contains a complete and accurate explanation of the process. Your original statement was incomplete and inaccurate. No matter how much you now try to twist it into accuracy, you’re missing one crucial ingredient: a time machine. If you only had that, you could go back and warn your past self to include the statement that a First Amendment balancing test is required.
I have disputed, and clearly debunked, your factual errors. This is the forum for discussing those, as you claimed that Bricker’s obviously false claims were accurate. See, for instance, the dozen seperate cites of me doing something that Bricker claimed I did not do, and you agreed that I did not do. Moderate to your heart’s content, but you can not claim that factual claims are the same as moderation.
Have it your way: this is a warning for ignoring my instructions. I haven’t participated in this thread as a poster, so any claims I made about the posts were made only in the context of moderating them. The topic of this thread is the proposed cigarette warning labels, not my reading comprehension.
Cigarettes are more closely related to medicines which have warnings all over them. When you take medicines, both OTC and prescribed, you have long and complete warnings of possible dangers to your health.We accept those warnings as just ,due to obvious health effects. That is what cigarettes are like. They serious health implications, They have the added health impact of the people in the area of a smoker also can have their health endangered.
You’re on to something, but I shudder at the possibility that medicines that may cause suicidal tendencies end up getting pictures of people who’ve hanged themselves or something like that.
By the way, in Peru we already get the gruesome images 1234
I don’t know if students of Constitutional Law agree with me on this, but it has been my impression of the language of the First Amendment that “abridging” was modifying “freedom”, rather than “speech”; that is, the “people” could exercise, or not exercise their right to speak, as it suited them, without “Congress” passing regulations prohibiting speech, of whatever nature, or compelling it.
There are, in fact, Congressionally imposed limits to unrestricted Free Speech which are, technically, “abridgments” under certain, narrowly defined circumstances.
Aren’t required warning a violation of the First Amendment the same way administrative searches are a violation of the Fourth Amendment? In other words, they’re not.
So far, that’s a pretty safe statement. As long as the warnings are factual and accurate text, I don’t know of any successful First Amendment challenges to them.
But let’s imagine that Nebraska has a majority of state legislators that oppose abortion, and they pass a law that any woman seeking an abortion must first see a pictoral “warning message” of an aborted fetus. Would that pass muster?
In this instance, I’m a little vague on what the pictures might be. If, for example, we were talking about a requirement that manufacturers include a picture of an inoperable metastisized lung cancer tumor, I’d say there might be some First Amendment concerns there.
I am in no way a lawyer, but it seems to me that a challenge to such a Nebraska law would be more likely to based on “undue burden” grounds than on First Amendment grounds. AFAIK (and I may very well be mistaken), that is how most challenges to similar laws (e.g., ones where the doctor must deliver a sermon on fetal pain or whatever) tend to go.
If the law also required all pregnant women to see a “warning” photo of a woman who died of pregnancy-related complications, then that presumably would provide the balance that students of the First Amendment find compelling.
But of course there is a big difference between cigarette package warnings and compelling women to see a photo of an aborted fetus. The former case is an example of a health-related advisory similar to those provided for various drugs and consumer products. The latter is an attempt at societal engineering.
Informed Consent was deemed constitutional in PP vs. Casey. Though the PA law in question didn’t require an abortion photo, it was made clear that there were no constitutional issues to requiring pregnant women to be presented with information about the fetus, abortion and abortion alternatives.
Would an abortion photo pass muster? Maybe, maybe not, but does the first amendment only kick in if you’re required to say something shocking?
You were challenged on this before but could not answer. How is writing “smoking causes cancer” acceptable but putting a picture of cancer that smoking causes somehow out of bounds?
If your argument is that, well, not everybody who smokes get the same type of cancer, that falls afoul of the fact that not everybody who smokes gets cancer at all in the first place. There seems to be no other even potentially rational argument to suggest that the word “cancer” is fine but the pictorial representation of “cancer” is suddenly no longer “factual and accurate”.
