Indeed, the FDA released a video describing the required new labels as "bold and powerful messages," and FDA Commissioner Margaret Hamburg told reporters that with the new warnings in place, "every single pack of cigarettes in our country will in effect become a mini-billboard." At a White House press briefing, Health and Human Services Secretary Kathleen Sebelius said that the new regulations would amount to "rebranding" cigarette packs, transforming them to convey the message that "smoking is gross."
But "smoking is gross" is opinion, not fact. Millions of Americans -- including me -- may share that opinion, but under the Constitution the government has no power to compel anyone to express it. Requiring vendors to post accurate information, the First Amendment allows; forcing them to promote the FDA's anti-tobacco ideology, it forbids.
"The line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company's advertising space for Government advocacy can be frustratingly blurry," acknowledged Judge Leon. But "here -- where these emotion-provoking images are coupled with text [exhorting] consumers to call the phone number '1-800-QUIT' -- the line seems quite clear."
In a memorable 1977 decision, the US Supreme Court ruled in favor of New Hampshire resident George Maynard, who had covered up the state motto "Live Free or Die" on his automobile license plates. Under the Constitution, the court held in Wooley v. Maynard, he could not be punished for doing so. Americans cannot be made to "use their private property as a 'mobile billboard' for the State's ideological message."
So in gloating that her agency's strident new warnings were intended to convert every pack of cigarettes into an anti-smoking "mini-billboard," the FDA commissioner was -- presumably inadvertently -- articulating precisely the goal that Wooley disallows.
Time and again the courts have made clear that compelled speech is as repugnant to the Bill of Rights as prohibited speech. Reasonable people can disagree over the point at which prudent consumer or public-health protections turn into patronizing nanny-state officiousness. They can disagree over whether urging Americans not to smoke -- or not to eat junk food or watch violent movies or drink too much wine -- is a wise use of government influence, time, and money.
But even the wisest policy must be constitutional. The FDA can rent billboards from sea to shining sea and fill them with the ghastliest smoking-is-gross messages it can dream up. What it cannot do is order tobacco companies to use their own products -- their own lawful products -- to advertise the government's anti-smoking agenda. If the First Amendment means anything, surely it means that.
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