AMERICAN VOICES Prize-winning Essays on Freedom of Speech,

Censorship and Advertising Bans

PHILIP MORRIS USA New York

1987

DISCLAIMER The essays in this book were submitted by members of

the public in response to a nationwide essay competition sponsored by Philip Morris Magazine and were selected as prize-winning essays by an independent panel of judges. The ideas, views and content of the essays in this book are solely those of the authors. Philip Morris Companies Inc., Philip Morris USA and Philip Moms Magazine do not necessarily endorse the ideas, views or content of these essays, and do not assume liability for the essays' contents.

Copyright O 1987 by Philip Morris, USA All rights reserved including the right of reproduction in whole or in part in any form. Published by Philip Morris USA. 120 Park Avenue New York, NY 1001 7

Designed by Allan Mogel Manufactured in the United States of America

Library of Congress Catalog-in-Publication Data American voices.

1. Censorship-United States. 2. Freedom of speech- United States. 3. Advertising-Censorship-United States. 2658.U5A45 1987 323.44'5 87-20340 ISBN 0-93403 7-0 1-9

Grateful acknowledgment is made for permission to reprint portions of E. E. Cummings' "as freedom is a breakfast- food" (reprinted on page 424 of this volume). Copyright 1940 by E. E. Cummings, renewed 1968 by Marion Morehouse Cummings. Reprinted from Complete P m 191 3-1962 by E. E. Cummings by permission of Harcourt Brace Jovanovich, Inc.

CONTENTS

Foreword Introduction

vii ix

First Prize: Barbara Rubenstein Second Prize: Don G. Campbell Third Prize: John E. DeWald Fourth Prize: Anthony Green

STATE PRIZE WINNERS Alabama: Brad Rodu, D. D. S. Alaska: Judith M. White Arizona: Keith Burgess-Jackson Arkansas: Edward F. Mazur California: Professor Butler D. Shaffer Colorado: Karen A. Olson Connecticut: William Jay Jacobs Delaware: John Micklos, Jr. District of Columbia: David Bunning Florida: Maggie Dunn Georgia: James W Harris Hawaii: Mark C. Coleman Idaho: Kevin S. Wilson Illinois: Charles R. McGuire Indiana: Herbert A. Terry Iowa: Leroy Keyt Kansas: Roger A. Long Kentucky: Bobby J. Touchton Louisiana: Michael William Tifft Maine: Robert White Maryland: Mary A. McAUister Massachusetts: Robert M. Ruzzo Michigan: Professor James P. Hill Minnesota: Timothy Hanks Mississippi: Gus G. S e m s Missouri: Keltner W Locke Montana: Jacqueline McCartney Nebraska: Professor John R. Snowden Nevada: Robert Sagan

CONTENTS

New Hampshire: Veralosephine Green New Jersey: G . T Lenard New Mexico: Philip C. Jackson New York: Swan Marie Szasz North Carolina: William A. Bake North Dakota: Judith A. Cummings Ohio: William L. Shanklin Oklahoma: Peter Edwards Oregon: Rick Dawson Pennsylvania: Elizabeth S. Herderson Rhode Island: Guy 1. Wells South Carolina: Mary Kay Beall South Dakota: ]ohn E. Getz Tennessee: Linda M. Hatcher Texas: Sandy Dollarhide Utah: ]ohn S. H. Smith Vermont: Leo O'Connor Virginia: Stephen P. Halbrook, Ph. D., I. D. Washington: William H. Ryan West Virginia: Swan 7: Dean, Ed. D. Wisconsin: Helen D. Hering Wyoming: Thomas E. Higham

ARIZONA STATE PRIZE WINNER

Keith Burgess- Jackson T u c s o n , Arizona

Occupation: Graduate Student Interests: Bicycling, hiking, reading, music

Entered the Competition because: "l'm interested in the conceptual issues surrounding free speech, as

well as the practical problems. "

If a right is anything, it is a bulwark against the slings and arrows of popular sentiment.

FREE SPEECH, ADVERTISING AND CENSORSHIP Americans are and always have been a people of principle. When it comes to criminal justice, we pride ourselves on the many safeguards that have been built into our system. Better that ten guilty persons go free, we say, than that one innocent person be convicted. A similar commitment appears in connection with speech, assembly and petition. However easy it may be in the short run to coerce individuals for pragmatic reasons, for some real or apparent public good, we resist such coercion in favor of abstract principle. "Congress shall make no law . . . abridging the freedom of speech. . . ." These ten words summarize our adherence to a principle of liberty, and in particular the liberty to speak. In popular terminology, we say that these words confer a right to speak freely.

Nonetheless, there has been considerable debate over the meaning and effect of the First Amendment, some of it arising from misconcep- tions about the nature of rights. If a right is anything, it is a bulwark against the slings and arrows of popular sentiment. In the twenties, it was sentiment against drinking alcoholic beverages; in the fifties, it was sentiment against Communists and Communist sympathizers. Today, among other things, it is sentiment against smoking, smokers and tobacco. Had we succumbed to the earlier sentiments and thrown principle to the wind, the world would be a much different-and undoubtedly worse-place than it is. But fortunately, whenever there were voices shouting "Censor this! Censor that!" there were others shouting "Liberty! Liberty!" The forces for liberty ultimately prevailed, however unpopular they may have been at the time.

The conflict between principle and pragmatism crops up regularly in our daily lives. We make a promise to a friend. When the time comes for fulfilling the promise, we notice that it would be convenient- perhaps even remunerative-to break it. But the principle of promise keeping leads us to do otherwise, and on reflection we think that this is for the best. The same process occurs in public life. There is widespread sentiment for restricting the public access of smokers; there is clamor for

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restrictions on tobacco advertising. And yet, we are principled enough in our reflective moments to realize that something important goes by the boards if we submit to these restrictions. However we may feel personally about tobacco and smokers, and whether we are smokers or nonsmokers ourselves, we are sufficiently committed to principles to be willing to sacrifice something for them.

This, in fact, is the essence of a right. A right is a summary of a principle that we hold dear. To say that someone has a right to do X is to admit that, even if X causes harm or offense to others, it has weight on the scale. It may be that the harm or offense is comparatively insignifi- cant, in which case we side with liberty. Or it may be that the harm or offense is comparatively weighty, in which case we restrict liberty for the good of all. The important feature of rights is that they have extra weight. They are not just one consideration among many that policy- makers put on the scale before making a decision. We think that rights are important enough to confer them on every citizen as protection against an intrusive and coercive government. One of the most impor- tant of these rights is the right to free speech.

To override the right to free speech on grounds that the speech in question is likely to harm or offend others is to commit an act of censorship. Not all censorship is unjustified, however, for some speech causes significant and direct harm to others. Examples are maliciously defamatory speech and speech which discloses national secrets to pro- spective enemies. But there should be a presumption that all speech is protected against censorship. The burden of proof and persuasion should always be on the censor, not the speaker. The would-be censor must show not just that harm or offense to others is likely to result from the speech in question, but that the harm or offense is significant. It must also be direct. Given the value of free speech, we should not restrict it on grounds that, in some remote or fanciful way, it will adversely affect others.

Given the value of free speech, we should not restrict it on the grounds that, in some remote or fanciful way, it will adversely affect others.

One implication of a principled approach to free speech is that commercial advertising, like political and scientific speech, should be protected. To conclude otherwise would be to engage in just the sort of pragmatic or ad hoc reasoning that principles are designed to exclude. In other words, since commercial speech is speech, it is protected. The

KEITH BURGESS-JACKSON

burden of establishing otherwise lies with the would-be censor, not the would-be speaker. This distinction makes sense of most of our intuitions about speech and censorship in everyday life. First of all, most of us agree that the prohibition of commercial fraud is justified. Fraud is an act which harms specific others in significant ways; moreover, it is direct. The same is true of misleading and deceptive advertising. We can admit both that advertising, as speech, is valuable, and that it has its limits. The freedom to speak ends where it causes significant and direct harm to others.

Consider the much-discussed ban on tobacco advertising. Adver- tising is a form of speech, an attempt to win people over to the virtues of one's product; hence, the burden of demonstrating that it causes harm or offense to others lies with the censor. Given our principle of free speech, we should be willing to sacrifice something-some small bit of harm or offense, perhaps-in order to protect what the right to free speech embodies. What is the harm that tobacco advertising allegedly causes? According to the would-be censors, it is lung cancer and a variety of other physical ailments. The argument goes roughly as follows: Tobacco advertisements cause people to smoke; smoking causes death and dis- ease; and death and disease constitute harms; therefore, we as a society are justified in prohibiting tobacco advertisements.

The problem with this line of reasoning is that it ignores altogether the principle of free speech. It succumbs to the very pragmatism that principles are designed to avoid:It is not enough, as we have seen, to simply point out that such-and-such an act of speech causes or is likely to cause harm to others. As we have conceptualized rights, they are consistent with a certain amount of harm. That is what makes them valuable. So the censor must show more than this: the censor must show not only that tobacco advertisements cause harm, but that the harm prevented through censorship outweighs the liberty of tobacco adver- tisers to speak, and also the liberty of individuals to have information about tobacco products. This alone seems to be an insurmountable task.

But there is more. The censor must show that the harms allegedly caused by tobacco advertising are sufficiently direct to justify censorship. We do not restrict liberty simply because, under some conceivable set of circumstances, one's action may cause harm to another. The harm must be direct. It cannot be the joint product of the original action and a self- imposed choice by a willing consumer. In the case of tobacco advertis- ing, if there is any harm at all, it is consented-to harm. The advertise- ment provides information to prospective consumers, nothing more. It does not coerce them into purchasing tobacco products; nor does it force its way into their homes. If a person desires to avoid tobacco advertise-

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ments entirely, he or she can do so by averting the eyes and ears at appropriate times. Any harm or offense that is caused by tobacco advertising is too remote to justify censorship. I

Thus, the case for commercial advertising in general, and tobacco advertising in particular, rests solidly on the principle of free speech. The censor's burden is heavy, and probably cannot be carried. What follows are several common objections to the free-speech principle, together with replies and discussion.

First, it might be objected that not all speech is created equal. Political and religious speech, for example, deserve more protection than commercial speech. Whereas it takes significant and direct harm to justify restricting political or religious speech, it takes much less to justify restricting or eliminating commercial speech. But this objection founders for the very reason that principles are important to us. It draws an arbitrary distinction-a distinction based not on the value of speech to the speaker, but on the alleged value of the speech to the prospective listeners. Is there any evidence that American citizens prize political speech more highly than commercial speech? Is it obvious that a ratio- nal citizen would trade information on a wide variety of products for a reduction in remote, self-imposed and comparatively insignificant harm to others? Given that we live in and prize a free market economy, any distinction between commercial and other kinds of speech is unsupport- able.

A second objection focuses on the alleged right to free speech. Rights aren't absolute, one might say, so it is permissible for policy- makers to regulate, restrict and perhaps ban certain forms of advertis- ing. If this is so, then the proposed ban on tobacco advertising is justified. But this objection misses the point. The claim has never been that rights are absolute. Such a view would quickly generate absurdities and moral dilemmas. (For instance, what happens when one of two individuals, each of whom has a right to life, must die?) The claim is rather that rights are valuable-so valuable, in fact, that we attach an artificially high weight to them when we formulate public policy and adjudicate between conflicting interests. To have a right to X, as we have seen, means that mere public good is insufficient to deprive one of X. From the fact that rights are not absolute it does not follow that they are worthless.

A third objection pursues a different angle. Surely, one might argue, there is no right to harm or offend others. But this is exactly what tobacco advertisers claim to have. Given the studies which demonstrate a causal link between smoking and lung cancer, and given that individ- uals are persuaded to smoke by viewing tobacco advertisements, to

KEITH BURGESS-JACKSON

assert a right to speak freely on this subject is tantamount to asserting a right to harm others. Clearly there can be no such right.

This objection, unlike the previous two, rests upon empirical claims which have not been proven to the satisfaction of many scientists. While a correlation may be evidence of a causal connection, it is not, without more, a demonstration of a causal connection. But even if the objector is right about these factual claims, even if smoking does cause lung cancer and other ailments, and even if individuals are persuaded to smoke by viewing tobacco advertisements, it does not follow that the right in question is "a right to harm others." As indicated above, rights protect interests which are thought to be important-so important that we are willing to pay a price to protect them. The price that we pay is some small bit of harm or offense to others. This does not mean that any amount of harm is permissible, for we draw the line between significant and insignificant harms. We also require that the harm be direct-that it not be self-imposed. In the case of smoking, the second of these conditions is not satisfied.

The fourth objection centers on the intentions of those who drafted the First Amendment. The framers of our Constitution, it might be argued, did not intend for it to protect tobacco advertisers. The First Amendment was intended to cover political and religious speech, not commercial speech. Since tobacco advertising could not have been before the minds of the framers, it deserves less protection now-if indeed it deserves any protection at all. But this objection again rests on dubious empirical claims. For one thing, the framers were as concerned as any modern American with the viability of an open market, as well as with the viability of commercial advertising. Colonial newspapers were rich sources of information about products and services. Second, tobacco was a mainstay of the colonial economy. To suggest the framers were antagonistic toward smoking, smokers or tobacco is to engage in historical fantasy, not serious history.

But even if these factual claims were true, it would still not follow that the intentions and desires of the framers should govern our current situation. The framers of the Constitution lived in a world that was in many ways much different from our own. They could not have foreseen the geographical growth of the nation, the development of vast commer- cial networks, and the advent of electronic media. James Madison, prescient as he may have been in other respects, could not have envi- sioned the modern corporate state or the fragile relationship that has come to exist between production, exchange and marketing. For this reason, it is the merest form of speculation to invoke his intentions. But policy decisions must be made, and we wish them to be rational, so we

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must invoke some theory or other of the First Amendment. The first part of this essay constitutes a sketch of such a theory. It is a theory based on principles and rights.

But we must make a stand now, for popular sentiment against smoking, smokers and tobacco is at fever pitch. It is ultimately . . . a matter of holding firm to what is valuable.

Finally, it might be objected that we live in a democracy; that if duly elected legislators decide to ban tobacco advertising, the people will have spoken. Anyone who claims otherwise--anyone who claims that the people, through their legislators, are not entitled to do so- must be mistaken at best and antidemocratic or antirepublican at worst. But again, this objection misconceives the nature of rights. Rights are bulwarks against popular sentiment. They protect minorities from the ravages of majorities, however well intentioned those majorities may be. By definition, rights protect certain interests even though some harm may befall the public in the process. This conception of rights has served us well throughout our history, and is likely to continue to do so in the future. But we must make a stand now, for popular sentiment against smoking, smokers and tobacco is at fever pitch. It is ultimately a matter of principle, a matter of holding firm to what is valuable.