An Irresponsible Approach to Free Speech

Yet another assault came Nov. 13 when a new coalition of advertising, marketing, and PR people decreed that the ad industry should "reform" the way it advertises tobacco products, ideally by not advertising them at all. This group, the Initiative on Tobacco Marketing and Children, believes that tobacco advertising is geared deliberately toward children and adolescents.

That's a pretty dicey assumption for starters -- and one that's far easier to disprove than to prove. For example, the last time I looked, I don't recall seeing Joe Camel or the Marlboro Man in the pages of Boy's Life, or a Virginia Slims sophisticate in the pages of Seventeen. But logic doesn't get you anywhere when dealing with zealous activists. In their zeal to restrict ad messages that might be seen by young people, however, these activists cavalierly dismiss what ought to be of paramount concern to an ad agency executive -- the right to advertise.

One of the coalition's spokespersons, William D. Novelli, portrayed industry people who happen to believe in the right to advertise as both conflicted and delusional: "They don't want their own kids to smoke, and they feel badly that their industry promotes tobacco use. They have a number of arguments for rationalizing this. They say that commercial free speech is a greater principle than any concern with specific products, and that therefore the issue isn't tobacco...."

Excuse me, but that's exactly right. The issue is free speech; the issue is the First Amendment. Anti-smoking activists, even those in the ad business who owe their livelihoods to the First Amendment, would like to forget that they're dealing with a constitutional issue here. Yes, commercial speech is a First Amendment right affirmed (and even strengthened last May) by the U.S. Supreme Court.

But don't tell that to industry people like David Milenthal, chairman of HMS Partners in Cincinnati and a member of the new Initiative group:

"There comes a time when First Amendment rights for freedom of speech in advertising should be outstripped by personal and industry responsibility," Milenthal told the Washington Post.

Oh really? Giving up freedom of speech in a democracy, even for some perceived benefit to children, is the most irresponsible of actions.

Historically, freedom of speech was accorded a privileged status and guaranteed by the Constitution precisely because it was viewed as an absolute value. That is, freedom of expression was regarded as a fundamental component of a free society.

Of late, however, free speech seems to be regarded as just one more worthy goal to be balanced against all the others, like child welfare. And this is happening at a time when "protect the children" has become the mantra of activists purveying everything from television's V-chip to Internet censorship. Speech has become an easy target whenever children are invoked.

The danger, of course, is that a restriction on one type of speech leads to restrictions on others -- the "slippery slope" that ends with a First Amendment in name only. The Initiative group dismisses this reality, claiming that cigarettes are "unique," and thus their advertising can be restricted without potential harm to other speech.

What absolute folly! Once a precedent is established, its rationale is quickly forgotten by others who would use that precedent to advance their own speech restrictions. Automobiles...sweetened cereals...high-cholesterol fast foods...the list of potentially harmful products is virtually endless.

It doesn't take much imagination, for instance, to visualize a Big Mac ad with a mandatory warning box about fat content and health effects -- or a world in which Big Mac ads are simply banned.

When it comes to tobacco and children, what is the responsible action? Should we sacrifice the First Amendment in this one area? No. Absolutely not. Ironically, the real answer was suggested by David Milenthal himself when he told the Washington Post: "Tobacco may be legal, but selling it to children is illegal." Precisely. The key word here is "selling."

Let's start enforcing the laws in all 50 states that forbid the sale of tobacco products to minors. Make it impossible for kids to buy the stuff. Now there's a novel idea. But no more novel, perhaps, than the idea of ad industry executives giving up the right to advertise.

If the advertising industry wants to do something "responsible" about children and tobacco, let me offer a modest proposal: Work toward enforcement of existing state and local laws. And couple that with an "eye-opening" public service campaign aimed at kids and merchants. "Buying cigarettes if you're underage is a crime." "Selling cigarettes to minors could land you in jail." You get the idea.

The ad industry could unleash some great creative power here -- and stand a better chance of making a difference. And all without giving up the First Amendment