Cigarettes, Warning Labels and Free Speech

Last year, the FDA issued new rules requiring tobacco companies to use graphic images on cigarette packages to educate consumers about the dangers of smoking and the "risks they are taking," as Secretary of Health and Human Services Kathleen Sebelius said in May 2011, as reported in the following PBS Newshour story at the time:

Watch Cigarette Warnings Get Graphic, but Will Smokers Be Deterred? on PBS. See more from PBS NewsHour.

Tobacco companies have been challenging these regulations as an unconstitutional infringement of their First Amendment rights to free speech--yes here we go with corporate free speech again!  As NPR recently reported, a case working its way through the courts was argued in a Washington DC federal appeals court in mid-April.  The FDA's implementation of the new regulations has been blocked by a judge because the rule would "violate the First Amendment by unconstitutionally compelling speech."  "Requiring a corporation to state something against its will," as Ken Paulson from the First Amendment Center notes, "is called compelled speech, and is only permissible with the narrow purpose of warning consumers."  The question of course is whether such regulations go "too far" and do, in fact, compel tobacco companies in an unconstitutional way.  On the other hand, should not public health concerns trump these corporate interests?

As a New York Times editorial on the case suggests, courts have often upheld regulations on commercial speech, which enjoys much less protection than political speech, as a general rule, under the First Amendment. One court has suggested that these warning labels are not "compelled speech."  The Times linked to a story about the case in the 6th Circuit Court of Appeals that found the government had a "significant interest in preventing juvenile smoking and in warning the general public about the harms associated with the use of tobacco products," as the judge in that case noted.  Here's another account about the case. 
 
Of course, this sounds like a preview of a trip to the U.S. Supreme Court, given not only the constitutional implications but also the sheer power of Big Tobacco.  Can't imagine they won't give up without a fight.