The great judge Learned Hand once said, "The spirit of liberty is the spirit which is not too sure that it is right." If so, the tobacco regulation bill recently passed by Congress indicates that the spirit of liberty is even scarcer than usual in the halls of government.
What motivates advocates of stricter tobacco regulation is the unassailable assurance that they are not only completely right but that their opponents are a) wrong and b) evil. This invigorating certitude makes it possible to justify almost anything that punishes cigarette companies, even if it does no actual good -- or does actual harm.
One of the main purposes of the new law is to reduce the number of smokers in the name of improving "public health." This is a skillful use of language to confuse rather than enlighten.
An individual decision to take up cigarettes is a private event, not a public one, and its health effects are almost entirely confined to the individual making the choice. Swine flu warrants government intervention because it is transmitted to people without their consent. Not so with tobacco addiction.
That's not the only Orwellian touch in this measure. It is called the "Family Smoking Prevention and Tobacco Control Act," which raises the obvious question: What does "family" have to do with it? Answer: nothing, but doesn't it sound sweet?
Like many intrusive government actions, this law is supposed to protect children. That's the pretext for telling tobacco companies, in exhaustive detail, how and where they can communicate with consumers, actual and potential -- allegedly to prevent the contamination of young minds.
So: Cigarette makers are forbidden to use color in ads in any publication whose readership is less than 85 percent adult. They are barred from using music in audio ads. They are not allowed to use pictures in video ads. They may not put product names on race cars, lighters, caps or T-shirts. From all this, you almost forget the fleeting passage in the Constitution that says "Congress shall make no law … abridging the freedom of speech."
When it gets in a mood to regulate, Congress doesn't like to trouble itself with nuisances like the First Amendment. In 2001, the Supreme Court ruled it was unconstitutional for Massachusetts to ban outdoor ads within 1,000 feet of any schools and playgrounds. So what does this law do? It bans outdoor ads within 1,000 feet of schools and playgrounds.
The court said the Massachusetts law was intolerable because it choked off communication about a legal activity. "In some geographical areas," complained Justice Sandra Day O'Connor, "these regulations would constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers."
But to anti-smoking zealots, that effect is not a bug but a feature. The only problem they have with imposing "nearly a complete ban" is the "nearly" part.
The crackdown on magazine ads is supposed to foil a dastardly plot to enslave middle-schoolers to lifelong nicotine addiction. In the 1998 legal settlement between states and the tobacco industry, cigarette makers agreed not to target adolescents in their advertising. But since then, reports the Campaign for Tobacco-Free Kids, tobacco companies have sharply increased outlays on marketing efforts "that reach and influence kids."
If the point was to recruit new smokers, they've wasted their money. Students in middle school and high school are 44 percent less likely to try cigarettes today than they were in 1998. Only 6.4 percent of teens smoke every day, less than half as many as before.
The Campaign for Tobacco-Free Kids says "cigarettes that are the most popular among kids are those that are also heavily advertised." But that doesn't prove advertising causes teens to take up the habit. It only indicates advertising may affect the brand preference of those who already smoke.
Corporate marketing doesn't explain very much about teen substance abuse. There are as many kids who use marijuana once a month or more as there are who smoke cigarettes that often. When was the last time you saw an ad for cannabis?
Punishing tobacco companies, which provide a legal product that consumers want, may not achieve anything in terms of reducing teen smoking or improving health. But in that case, sponsors may take satisfaction in the sheer pleasure of inflicting that punishment. Rest assured, they will.