Outlawing cigarettes: Beginning another hopeless drug war?
Dear readers: Trust me. I’m a long-time criminal defense and
civil liberties lawyer, and I’m telling you that the “war on drugs” has been
an abysmal and wholly destructive failure. Not only has it been responsible for
the erosion of myriad provisions of
the Bill of Rights, but this “war” has
made it significantly more difficult for those interested in promoting healthy
practices, especially among the young, to speak with credibility and
persuasiveness on the dangers of abusing both lawful and illegal drugs.
Yet, just
as the smoking rate continues to drop – due in large part, state health authorities and
The Boston Globe concede, to
enormously effective anti-smoking advertising campaigns – there is agitation anew for banning cigarettes entirely, or at
least making it so difficult to smoke that it becomes an effective ban. The
latest stealth effort to effectively criminalize tobacco smoking without formally doing so is the United States Food and
Drug Administration’s push for regulatory authority over the industry. It has
already gained approval (by an over whelming 326-102 margin) in the House, and if the Senate does the same by a veto-proof majority,
noted the Globe editorial,
“regulators will have new tools to control the marketing and content of a
deadly and addictive product.” We can then be sure that the government will
make it increasingly difficult to buy, sell, and use cigarettes – right up to
the edge of total prohibition.
The result almost certainly will be
an increase in smoking, especially
among the rebellious young. At worst, an enlarged “war on drugs” will add
tobacco to the ever-growing list of substances on which the feds have increasingly
been cracking down for decades. And caught in this war’s crossfire have been
the cherished American values of freedom of speech, freedom from unreasonable
search and seizures, freedom from Draconian property seizures via asset
forfeitures, and other essential liberties. Adding tobacco will only worsen
these “unintended” casualties.
Anyone questioning the effectiveness of freedom in combating drug abuse, in
contrast to the disastrous consequences of interdiction by law, needs only to
read a long-forgotten dissenting court opinion by one of the liberal giants in
legal history, Circuit Judge J. Skelley Wright, who sat on the U.S. Court of
Appeals in Washington
from 1962 until 1988. Judge Wright, in the historic tradition of American
liberalism, believed in free speech, free choice, and promotion of public
health – three goals that he found wholly compatible.
The
controversy arose when a group of broadcasters banded together to challenge a 1970
Congressional statute that banned advertising of cigarettes on radio and
television stations. As a result of the ban, cigarette companies pulled their
substantial on-air commercials and instead turned to advertising in various
print media. The broadcasters were furious over this loss of revenue to a
competing medium. It was, oddly enough, the cigarette industry itself that was
lobbying for enactment of the broadcast ban. Why, one asks, would the cigarette
companies actually want a prohibition
against their right to advertise on the air?
The answer
is entirely understandable with the full background in mind. Judge Wright, in
his dissenting opinion, decried the decision of his brethren on the court to
allow Congress to enact such a ban, seemingly in the interests of public
health. Wright pointed out that prior to the advertising ban, cigarette advertising
was subject to the Federal Communications Commission’s so-called “Fairness
Doctrine,” a statute that required equal broadcast time to be given to both
sides of a “matter of public controversy.” The anti-smoking forces of that day
argued that since cigarette advertisers flooded the airwaves with smoking ads,
the opponents of smoking were entitled to “equal time” to inform the public of tobacco’s
deleterious health consequences.
When the federal courts upheld this
position in a 1969 court opinion, the
anti-smoking forces launched one of the most effective public health
advertising initiatives in history. As Judge Wright pointed out, cigarette
companies advertised to gain brand loyalty at the expense of competitors, but
the more they advertised, the more “equal time” was given to the anti-smoking
forces. As a result, Judge Wright noted, “these advertisements triggered the
anti-smoking messages which were having a devastating effect on cigarette
consumption.” While the companies increased their advertising in order to
protect their brands, “for every dollar they spent to advance their product,
they forced the airing of more anti-smoking advertisements and hence lost more
customers.” The era of the “equal time” for anti-smoking electronic
advertisements produced a dramatic reduction in addictive conduct.
It came as
no surprise to realists and cynics alike, then, that the industry sought
congressional legislation banning tobacco advertising on the air altogether. No
single company could afford to cease advertising for fear of losing their
deadly race for brand loyalty. Together, though, the industry could hardly wait
for legislation to ban tobacco advertising, thereby eliminating the
anti-smoking forces’ legal right to air their “equal time” ads. Nor could the
tobacco companies simply have a meeting and agree to stop advertising in order
to get the anti-smoking campaign off the air, since such an agreement would
likely have broken anti-trust laws, both a civil and criminal violation. So the
tobacco companies actually had to lobby Congress to ban their own commercials – and, inferentially,
the anti-smoking campaign as well – from the air. Congress, as usual, did what
the lobbyists, and the campaign contributions, dictated.
As Judge
Wright pointed out, “At the time…the suggestion of voluntary withdrawal [of cigarette advertising
by the companies] was taken by some as a long delayed demonstration of industry
altruism.” But in fact it was the industry’s way of stripping the immense power
of the anti-smoking ad campaign. “The result of the legislation,” wrote the
judge “was that as both the cigarette advertisements and most anti-smoking
messages left the air,” advertisers switched to non-electronic media and there
was “an immediate resumption of the upward trend in consumption.”
“The theory
of free speech is grounded on the belief that people will make the right choice
if presented with all points of view on a controversial issue,” wrote Judge
Wright. This theory was well illustrated when the anti-smoking forces were
given equal time to meet the tobacco companies’ advertisements.
As the
increasingly destructive “war on drugs” has demonstrated, prohibition against
the taking of mind-altering substances has been an utter failure, just as
prohibition was an equal failure in the war on alcohol. In recent years,
largely as a result of public and private charitable funds going into
anti-smoking campaigns, the smoking rate is at its lowest point in memory. No
responsible governmental official should even think of anything that approaches
prohibition. And yet, of course, they surely will, as the law edges closer and
closer to a complete ban
And the axiom well known to every
mother surely applies to Big Brother - you cannot order kids to stop doing
anything. All you can do is to persuade. And without freedom, persuasion is
impossible.
Kyle Smeallie assisted in the preparation of this piece.