Big tobacco's argument is all smoke and mirrors

Look who’s now casting itself as a First Amendment crusader: Big tobacco.
Yes, cigarette companies are making the case that their advertising may be unpopular, but it’s constitutionally-protected speech. Five of the big-name brands have filed a lawsuit against the Food and Drug Administration, claiming the 2009 legislation that allows the agency to require graphic warning labels on packs of smokes tramples their First Amendment rights.

Their attorney, Floyd Abrams, maintains it violates the right to free speech to require these makers of a lawful product to essentially urge the public not to buy it. The size of the government warning labels, with images such as a man blowing smoke through a gaping hole in his neck, unfairly chokes out the company’s own message, he argues.

Maybe so. But that doesn’t mean it’s a free speech violation.
A commercial product like cigarettes, after all, doesn’t fall into the same constitutional category as someone with an unpopular religion or belief. Accordingly, it’s not guaranteed as much protection under the First Amendment.
Commercial products and their speech are already regulated differently. With noncommercial speech, the government isn’t allowed to inquire whether it’s true or false: regulation must be content-neutral. But that’s not true for advertising. The government can ban ads that are false, or other types of commercial speech. Regulations on insider trading, for instance, forbid even casual remarks that might lead to abuse.

In the case of cigarettes, the government’s interest in protecting public health is substantial. And tobacco companies’ own advertising is clearly misleading, aimed at making people forget this product is lethal. With all the false imaging of youth and vitality that tobacco companies use to mask the danger of cigarettes and get people hooked, they should be thankful the government hasn’t banned their advertising campaign entirely, as Norway did.

Big tobacco doesn’t have a right to convey whatever messages it chooses. The First Amendment was intended to protect free expression by unpopular minorities — not the right of a powerful industry to sell a deadly, addictive product.