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Thursday, March 08, 2012

Education and advocacy, smoking and abortion

Last week, in R.J. Reyolds v. FDA, Judge Leon of the District of D.C. ruled that the First Amendment prohibited new FDA regulations requiring the display on all cigarette packages of large graphic images, including photos of dead bodies and diseased lungs and mouths. The court held that the regs compel speech, do not involve purely factual commercial information (which would trigger lower scrutiny), and do not survive strict scrutiny. It seems to me the court got it mostly right, because there are a number of less-restrictive means, means which would not necessarily involve compelled speech, for the government to achieve its goal of educating the public about the harms of smoking and persuading them not to smoke or to quit.

A lot turned on the FDA's admission that its real goal in requiring these images was to reduce smoking, leading the court to say the following: "Although an interest in infonning or educating the public about the dangers of smoking might be compelling, an interest in simply advocating that the public not purchase a legal product is not."

That doesn't seem right. First, I am not sure there is such a sharp distinction between the two. While Congress and the Court made a lot of that line in the Smith Act, it dropped out of the analytical mix after Brandenburg and lower-court cases applying Brandenburg to situations involving information, description, and depiction. To the extent a difference should remain, they should receive equal protection (Eugene Volokh has the seminal work on informative speech, with which I basically agree). Or, if not, advocacy arguably should receive greater protection than straight presentation of information, since the latter is more likely to lead to immediate harm.

Given this, it is difficult to see how the government could have a compelling interest in engaging in one type of expression and not the other; in other words, to say the government can educate/inform the public about the dangers of smoking but it cannot advocate to the public that it should stop smoking because of those dangers. Moroever, the point seems like a throwaway in the court's opinion and was unnecessary to the decision; the compelled expression involved in the regs could not be justified in the name of either education or advocacy.

But now an unrelated point: How should the analysis in Reynolds affect First Amendment challenges to laws requiring women to undergo and look at ultra-sounds before terminating a pregnancy?  These  laws sound and function a lot like the FDA regs. The real state goal here is advocacy--persuading women not to go through with terminating the prgenancy--through shocking or startling imagery, imagery meant to appeal to their emotions and fear. The imagery from the ultra-sound does not provide the woman or doctor any meaningful, truthful factual information, any more than do the graphic images on the cigarette packages. Certainly it is not providing informarion as to early pregnancies--during the first two months, when most abortions are performed, a trans-abdominal ultrasound (and remember that Virginia, under pressure, backed away from requiring trans-vaginal ultrasounds) will not detect or reveal much of anything. If we accept Judge Leon's view that there is no compelling government interest in advocating a position, then the ultrasound laws should be in trouble.  And even if we reject the idea that there is no compelling interest in advocacy, the government still could achieve its goal (reducing abortions by dissuading women from having them) without compelling doctors to speak or women to listen to some speech--namely by engaging in its own anti-abortion campaigns, including the display of ultrasound images, outside of the doctor's office and the doctor-patient conversation.

Of course, it would be supremely ironic if First Amendment arguments created and used by the tobacco companies--a classic First Amendment villain--end up providing a basis for invalidating controversial ultrasound laws.

Posted by Howard Wasserman on March 8, 2012 at 09:31 AM in Constitutional thoughts, Current Affairs, First Amendment, Howard Wasserman | Permalink

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