AJR  Columns :     THE PRESS & THE LAW    
From AJR,   November 1994

Should Cigarette Ads Be Banned?   

A study concludes that would help stop young people from smoking.

By Lyle Denniston

Many antismoking initiatives are circulating as the attack on King Tobacco intensifies, but one in particular is making the press and its lawyers anxious. It is the proposal to ban cigarette advertising--a move that proponents say would do more than almost any other to help America kick the habit.

That worries media law experts, who see the idea as part of a growing effort to modify behavior by controlling discussion about it. Trying to change the nation's appetites by blacking out advertising about them is a concept not confined to the war against cigarettes. Any indulgence considered hazardous to health or safety could be a target of an ad ban.

The debate comes as the media discover that the First Amendment's protection for "commercial speech" is not putting much of a brake on such cultural engineering. Over the past 20 years, the Supreme Court has been providing increasing freedom for commercial speech, but not when the "speech" proposes an illegal transaction or an activity the government wants to curb, such as gambling.

Cigarette advertising has been banned for years from radio and television. Some newspapers refuse to carry tobacco ads, but that is purely a matter of free choice (see "Smokeless in Seattle," October 1993).

The issue is stirring afresh following release of a study by the National Academy of Sciences' Institute of Medicine, "Growing Up Tobacco Free: Preventing Nicotine Addiction in Children and Youths."

Although the nationwide assault on tobacco use is not keyed solely to young smokers, the study argues strenuously for a "youth-centered prevention policy" because, it says, that is where the problem begins: "Decades of experience in tracking tobacco use show that if people do not begin to use tobacco as youngsters, they are highly unlikely to initiate use as adults."

The institute's focus on youth is likely to strike a responsive chord among politicians, because few can resist public gestures designed to save children. Consider, for example, the recent pioneering action of the Baltimore City Council. A pair of new ordinances that would virtually eliminate billboard advertising for tobacco and liquor were written explicitly to protect youth from the marketing messages for those products. Federal judges have rejected First Amendment challenges to both ordinances; the cases are now on appeal.

A youth protection agenda, as suggested by the Institute of Medicine report, is likely to include a strong anti-advertising approach. That's because, the institute found, the images used in cigarette advertising "tend to appeal to youths." It adds: "Even children ages 6-10 are able to identify the images and slogans associated with popular brands of cigarettes."

So, as a key part of its recommended strategy, the institute says there must be "a step-by-step plan to eliminate these commercial messages from the various media of mass communication."

Advertising is a necessary target, according to the study, because it leads to more consumption of tobacco. The reverse, the study says, is also true: "Consumption declines markedly when promotion is totally banned."

The First Amendment implications of those findings have been demonstrated in several Supreme Court rulings dealing with advertising bans. A group of media lawyers studied those rulings and concluded earlier this year in a report published by the National Legal Center for the Public Interest that the justices will be very tolerant of controls of ads if they are designed to decrease consumption of products opposed by the government.

That attitude, the lawyers argued, "would reduce the constitutional protection of advertising to a sham," leaving the government with sweeping power to control commercial expression.

Some of the highest court's rulings, the lawyers said, "could be read to encourage government to camouflage suppression of any product or service that has fallen into official disfavor by banning the advertising of it, even though the product or service itself remains lawful.... The government could ban the advertising of any product it dislikes high-fat or high-sodium foods, large-engine cars, or any of a host of potentially 'harmful' products."

Those rulings provided the key to decisions backing Baltimore's bold new venture.

One judge, in upholding the liquor billboard ordinance, relied upon the link the City Council had found between liquor ads and "adolescents' attitudes toward alcohol"--and their propensity to drink it. That evidence, the judge said, was more than enough to satisfy the Supreme Court and the First Amendment.

In the tobacco billboard case, another judge concluded that the ban would reduce the number of minors seeking to buy cigarettes, which would promote the goal of a Maryland law banning cigarette sales to anyone under 18.