Do the new tobacco warnings violate 1st Amendment rights?

Great Debates
121

But even if Bricker is right and the big guy wearing the “I Quit” shirt conveys no information (I disagree), then by definition something that contains no information cannot be either non-factual or non-accurate. And even if it were, all that would mean is that they’d have to use another picture instead of that one.

Bricker still has not begun to argue for why pictures are somehow not accurate or factual while words are.
Even picking out a few of the current crop of pictures is something of another diversion, as even if all of the current pictures needed to be replaced with more “accurate, factual pictures” that still would not mean that we couldn’t place 'accurate, factual" pictures on cigarette packs.
It should be trivially easy to support his claim that warning pictures are somehow not accurate or factual. The fact that there has been no real attempt to do so suggests something about the support for his claim.

122

The question shouldn’t be if putting grim images on a pack of cigs is constitutional, or whether it lines up with the logic of a 50 year old court case. It should be: is this a stupid waste of time?

123

…or why bottles of alcoholic beverages aren’t required to display graphic images of diseased livers, victims of DUI accidents, battered spouses, FAS babies, etc.

124

I objected to pictures that did not contain accurate and factual information. You point out that therefore the pictures did not contain inaccurate or false information, as though that solves the issue of whther they are permitted.

But it doesn’t. You seem to think the government is allowed to place any information it pleases unless it is false or inaccurate. But that’s not the case – the government has the burden to carry to show that what they seek to place is both accurate and factual, and only accurate and factual. The government cannot compel speech unless that criteria is met. You are framing the question as though the government can compel any speech it wishes unless the speech is false or inaccurate. Do you see the difference?

It looks like we disagree on the application of those definitions to this situation. In my view, a picture like the sobbing woman cannot be defended on the grounds that it accurate and factual. A crying woman is a highly subjective image, not a clearly defensible statement such as, “Smoking causes cancer.”

Sadness? I suppose it is, but it’s an emotion, and the emotional reactions someone is feeling are simply not in the category of “accurate and factual” speech that the government may compel.

I believe there are pictures that would pass constitutional muster if compelled.

125

Now a question for FinnAgain:

If the courts rule on this lawsuit, and the final ruling is that the crying woman and rotoscoped baby can be mandated for inclusion on cigarette packs, then I will unequivocally admit I was wrong.

If the courts rule as I predict here, will you similarly admit error?

126

This doesn’t make sense. In what way does a photo of Obama looking annoyed convey “an unfair impression”?

It seems to me that you dragged Michele Bachmann and Obama into the discussion to illustrate a claim that “the Left” is using “unfair” imagery to influence smokers and voters, but won’t acknowledge that there are “unfair” images of Obama that can be used against him, therefore the Left are a bunch of nasty hypocrites - this alleged hypocrisy being an ongoing Bricker meme on this board. What political one-upmanship has to do with the issue of negative imagery used to amplify health warnings to smokers, is a continuing mystery.

Tu quoque, meet non sequitur.

Another classic Brickerism. If “the courts” (or any court) rule(s) on something in accord with what Bricker believes, it completely settles the issue of who’s right and who’s wrong. If on the other hand court(s) rule in a manner that Bricker objects to (for example, the Supreme Court decision on abortion rights), well, that’s a whole 'nother kettle of fish. :rolleyes:

By the way, if The Courts ultimately rule against the use of certain photos on cigarette packs because they’re insufficiently relevant to health warnings, I’ve got a big batch of photos from my pathology practice that will make excellent substitutes. I imagine the clinical services and radiology department will be more than happy to help out as well. I don’t think the tobacco companies will be pleased with the proposed changes.

127

I predict the courts will have a very tough time distinguishing the new warning labels from the old - and AFAICT, the tobacco companies never litigated the issue of whether the old ones were a constitutional violation.

128

Well there is another aspect I had not considered. If these new labels constitute as speech anti-smoking advertisements, then are they permissible? I seriously doubt the government can compel speech of producers and manufacturers which advocates the public not purchase their product. If these nascent labels can be construed as anti-smoking speech, then they cigarette companies may win.

129

If that theory were accurate, then it would seem that I would have offered up pictures of Obama OR Bachman, but not both. How does one score a partisan political point by illustrating that both Obama and Bachman have been represented unfairly by pictures?

Not at all. I clearly and unequivocally stated that I would accept a final court ruling against my position and admit error. Where is the other kettle of fish?

Will you accept a final court ruling against your position and admit error?

130

I can’t imagine what else they’ll be construed as, but I don’t think it makes any difference.

131

It may not.

But it may. So far as I can tell, the specific issue is of first impression.

132

Admit what error, exactly? Have I ever said that I predict that a court will rule a certain way? Courts are staffed by judges. Judges (well, most of them) tend to be properly described as “people”. People are prone to stupidity, error and truly pants-on-head retardation when the mood strikes 'em. If courts never got anything wrong, we’d have no appeals process, so even the legal system groks that “a court said it!” is hardly true proof of error in an ontological context. Even the SCOTUS has changed its position on occasion.

Robes do not confer papal infallibility. Merely a relative-best-fit-for-this-time-and-context.

  1. Of course that solves the issue. Your claim was that they are neither accurate or factual. If your claim about their information content was true (it wasn’t), then they could be neither inaccurate or counterfactual, as something must have information content to achieve either status.

  2. You have objected, but you only pointed to a handfull of the pictures and even then the only partially-rational objection you had was that the rotoscoped picture of a baby is not, as you claim, accurate. I contend that you;re wrong on that point, but even if you were correct, the remedy would be to substitute an actual picture of a premie baby born due to its mother’s smoking habit. The rest of your arguments boil down to the same situation. if an individual picture is objectionable, then obviously the remedy is to swap it with an acceptable one, not claim that all pictures are hopelessly inaccurate and counterfactual.

  3. None of that, at all, even begins to address the issue of whether warning pictures, in general, have any clear bright line difference from text when it comes to being factual and accurate. You have made quite a few posts in this thread, and you have changed the subject to partisan politics and argued that greater or lesser impact can be substituted for “actual and factual” and claimed that greater or lesser impact can can be
    substituted for “actual and factual”… but you still have not made any real attempt to show how an actual photo of an actual disease caused by actually smoking actual cigarettes is not factual and/or actual. Readers might wonder why that is, if you are advancing your argument as if it was supportable.

This seems, however to be because you have now retracted that claim.

So you do retract your original claim that:

Readers will note that your original claim was that the use of “a” picture, in general, was not as factual and accurate as text. But you have now said that certain pictures would be acceptable. Please identify the types of pictures that you believe would be acceptable, and what the clear bright line distinction that would make the current crop 100% unacceptable. Identify why, even if the current crop is 100% unacceptable, we can not simply use your guidelines and replace them with a Bricker-approved batch of warning pictures.

I will simply say that your degree of understanding of my argument leaves something to be desired.
I’d also note that while NotreDame was kind enough to provide citations in order to support my argument, he pointed out that the relevant legal standard is that "A law regulating a lawful non-misleading advertistements must serve 1.) a substantial government interest (2. ) “the regulation directly advances the governmental interest”; and (3) the governmental interest cannot “be served as well by a more limited restriction on commercial speech.” "

Rather obviously, attempting to keep citizens from being sickened and/or killed by cigarettes does not bear fulfills all three metrics, and does not bear even a passing resemblance to your implication that the government is merely doing anything it “pleases”, willy nilly.

You are mangling words to shoehorn in a definition that does not fit. A photograph, by definition, is objective. Reactions to it are subjective. Just because the interpretation of a picture is subjective does not make the picture inaccurate or counterfactual. The warning about complications to pregnancy due to smoking has a massive potential for subjective reactions, as most single men would not be unduly concerned, but may pregnant women would. That does not make it “inaccurate” or “counterfactual”. It also addresses and debunks your earlier claim about “impact”, by the way.

Unless you are inventing your own personal definitions for “accurate” and/or “factual” yes, it is both accurate and factual. There’re few things quite as objective as the fact that a horrible, lethal disease tends to make most sane humans beings a tad bit sniffly.

“Miss. Smith, I’m afraid to inform you that you/one of your loved ones will die a slow, agonizing death due to the effects of cigarettes.”
“Whee!”
“I’m sorry that I have to… wait, what?”
“Awwwww riiiiight, hacking up blood, here I come!”
“No, I don’t think you understand, this condition is both painful and lethal and…”
“I hate my lungs, fuck you, lungs! This is awesome!”
“You understand that this is a debilitating, agonizing, slow, often humiliating way to die, right?”
“Music to my ears doc. While I’m here, can you perhaps help me get kidney stones too? I hear that passing them is really cool.”

133

So…you’re conceding that you have been in error to oppose a woman’s right to an abortion, since the 1973 Supreme Court ruling validated that right (and the highest court in the land making such a decision renders opposing views erroneous in Bricker-land)?

Or else you don’t regard Roe v. Wade as a “final court ruling” on the basis that future courts may decide something different entirely. In which case it is silly for you to demand of posters that they admit error if a court decision on the cigarette pack photo question goes against their beliefs, since there is no such thing as a “final court ruling” and some other judge(s) might in the future feel differently.

Either way, you’re screwed. :slight_smile:

Answer - you didn’t score any points by making a feeble attempt to drag political partisanship into a debate about cigarette pack health warnings and First Amendment rights.

Be interesting to see how you try to wriggle out of 1) first declaring that photos in general are inherently deficient in fact/accuracy, then 2) conceding that mandating use of some photos may be constitutionally permissible, while arguing that the government may not mandate them unless it proves they are factual and accurate.

What position are you referring to? If there existed such a thing as “a final court ruling”, how would any decision invalidate my or anyone else’s beliefs? Even if we were attorneys personally trying such a case (or any case), a decision that went against us wouldn’t constitute “error” on our part, merely that someone capable or making a ruling or rendering a verdict saw the matter differently.

134

Fallacy of equivocation.

I never claimed such a thing.

135

[quote=“FinnAgain, post:132, topic:593003”]

Admit what error, exactly? Have I ever said that I predict that a court will rule a certain way? Courts are staffed by judges. Judges (well, most of them) tend to be properly described as “people”. People are prone to stupidity, error and truly pants-on-head retardation when the mood strikes 'em. If courts never got anything wrong, we’d have no appeals process, so even the legal system groks that “a court said it!” is hardly true proof of error in an ontological context. Even the SCOTUS has changed its position on occasion.

Robes do not confer papal infallibility. Merely a relative-best-fit-for-this-time-and-context.
[/quotes]

Courts decide the law.

All this language we’re arguing about – “accurate and complete” information in compelled speech – is a legal standard crafted by the courts to decide when specch may be compelled and still be consistent with the First Amendment.

Isn’t that the underlying question here?

Now, if you’re simply arguing that, in your opinion, this is a good idea, then we have nothing further to discuss – how can I tell you what your opinion is better than you can tell us what your opinion is? You’re the lead and sole authority on your opinion.

But if you’re arguing that this proposal is consistent with the First Amendment, then you’re arguing for and about a standard crafted by judges.

136

No. I absolutely acknowledge that the law of the land is that women have a right to a first-term abortion.

When did I ever say otherwise?

It’s true I’d like to see that caselaw change, but I certainly wouldn’t argue that view extensively in a thread called, “Do women have a constitutional right to abortion?” I might argue that view in threads about what the public policy of our country should be, of course.

In this thread, helpfully called, “Do the new tobacco warnings violate 1st Amendment rights?” we are discussing whether or not the new tobacco warnings violate First Amendment rights. That question is subject to settlement by a court.

137

As I just quoted you saying that, I find your denial to be less than persuasive. Even if you were to deny what virtually every intelligent native English speaker understands the phrase “not so much” to mean, you still went on record and stated that “My claim is that the pictures to be used are not accurate AND factual in the same sense the current text is accurate and factual.” Note, that was a blanket statement applying to all of them, and you found cause to dispute the minority of them. That you have not retracted your original claim and in fact deny it, and have not supported your specific claim about the photos in question also leads your argument to being less than persuasive.

As you still will not answer, after days and multiple posts, what photos you would accept and why, your attempts to change the subject are less than constructive.

As you are now using the threadbare and quite frankly boring tactic of trying to claim that nobody’s reasoning can be correct anymore if some guys with robes on make a judgement (unless of course that judgement is reversed at a later time by the court itself or a higher court, making their prior reasoning correct again via alchemy), I do not have high hopes that you will avoid using such gambits and tactics, further weakening your argument.

If you’d like to concede the argument that’d be fine. If not, finally, identify (if you’ve truly retracted rather than just denied-making your claim that photos aren’t accurate of factual) what photos you would be happy with, and why the solution would not simply be to change the current photos to Bricker-approved photos rather than the various arguments you’ve advanced so far. Most rational adults would understand that if the issue is, truly “several of these photos are improper” the proper reaction is “so let’s change them to proper ones” not “so let’s get rid of all the other ones, too.”

138

This misunderstanding on your part arises from the equivocation problem.

Breadcrumbs are better than nothing.

Nothing is better than a tick, juicy steak!

Therefore, breadcrumbs are better than a thick, juicy steak.

I tried to explain that difference by saying: “My claim is that the pictures to be used are not accurate AND factual in the same sense the current text is accurate and factual.”

Your claim, in contrast, was that I said: “Your claim was that they are neither accurate or factual.”

Do you see the difference between what I said, and what you said I said?

139

OK, champ, for you I’ll make it ultra-simple.

Here is my new argument. I will abandon all previous arguments I have offered in this thread, because they are obviously much too complicated.

My argument is: the courts will decide that at least one of the FDA-proposed pictures, when tobacco companies are compelled to use it on ciagrette packaging, violates the First Amendment.

I leave you to ruminate about whether the real, mystical First Amendment that only you know is violated. I’m perfectly happy to concede that the courts are getting it all wrong, and you alone know The Truth. My argument is simply that the actual courts, with actual authority over the actual FDA and the actual cigarette companies, will decide that at least one of the actual pictures violates the First Amendment and the actual, real, tangible result will be that companies won’t have to use the picture(s) so identified.

140

Nope. You said that they were not accurate and factual. If you really want to quibble, you rhetorically asked if they were actual and factual, and responded “not so much.” I note you are now trying to change the subject to a fallacy of equivocation about breadcrumbs, because you can’t show how I actually committed the fallacy of equivocation on your posts. This is, at least, better than providing pictures of Michelle Bachman when people asked you how the actual photos we were discussing did not pass muster.

Most native speakers of English would recognize that the word “explain” has a definition, and that bit of verbiage doesn’t fit under it.

“Thing A is bad and undesirable and Thing B is good and desirable.”
“Okay, please attempt to argue for why Thing A is bad and undesirable.”
“I am saying that Thing A is bad AND undesirable in the same sense that Thing B is good and desirable.”
“… you just repeated yourself, you didn’t explain your reasoning.”
“Michelle Bachman.”
“Wait, what?”
“Fallacy of equivocation. Breadcrumbs are in fact tastier than eating nothing.”
“Now hold on a minute here…”
“My argument is too complex for a simpleton like you.”

Because, ya know, ya did. And I quoted it. But just because your new denial is something I find amusing, how about I now provide yet another a cite, this one proving that you confirmed that you were objecting to pictures in general, but that you stated quite clearly that you refused to retract that argument?

[

](http://boards.straightdope.com/sdmb/showpost.php?p=14160521&postcount=84)

Yes, I can cite and quote what you said and you can snark about how your posts are too complex for me, call me “champ”, invent fictional First Amendments that you claim I’m saying only I know about, and change the subject to breadcrumbs and how tasty they are (since changing the subject to partisan politics turns out not to have worked).

Now, how about you finally answer what clear bright line you see between photos and text (or finally simply state that you retract that claim), and why if some of the photos aren’t proper the answer isn’t simply to change them for those that are? Or do you now concede that the supermajority of the photos are, in fact, legal and not a violation of 1st Amendment protections and, at worst, three of them will have to be excluded or changed while the rest stand?