Outlawing cigarettes: Beginning another hopeless drug war?

               Dear readers: Trust me. I’m a long-time criminal defense and civil liberties lawyer, and I’m telling you that the “war on drugs” has been an abysmal and wholly destructive failure. Not only has it been responsible for the erosion of myriad provisions of the Bill of Rights, but this “war” has made it significantly more difficult for those interested in promoting healthy practices, especially among the young, to speak with credibility and persuasiveness on the dangers of abusing both lawful and illegal drugs.

                Yet, just as the smoking rate continues to drop – due in large part, state health authorities and The Boston Globe concede, to enormously effective anti-smoking advertising campaigns – there is agitation anew for banning cigarettes entirely, or at least making it so difficult to smoke that it becomes an effective ban. The latest stealth effort to effectively criminalize tobacco smoking without formally doing so is the United States Food and Drug Administration’s push for regulatory authority over the industry. It has already gained approval (by an over whelming 326-102 margin) in the House, and if the Senate does the same by a veto-proof majority, noted the Globe editorial, “regulators will have new tools to control the marketing and content of a deadly and addictive product.” We can then be sure that the government will make it increasingly difficult to buy, sell, and use cigarettes – right up to the edge of total prohibition.

                The result almost certainly will be an increase in smoking, especially among the rebellious young. At worst, an enlarged “war on drugs” will add tobacco to the ever-growing list of substances on which the feds have increasingly been cracking down for decades. And caught in this war’s crossfire have been the cherished American values of freedom of speech, freedom from unreasonable search and seizures, freedom from Draconian property seizures via asset forfeitures, and other essential liberties. Adding tobacco will only worsen these “unintended” casualties. 

                Anyone questioning the effectiveness of freedom in combating drug abuse, in contrast to the disastrous consequences of interdiction by law, needs only to read a long-forgotten dissenting court opinion by one of the liberal giants in legal history, Circuit Judge J. Skelley Wright, who sat on the U.S. Court of Appeals in Washington from 1962 until 1988. Judge Wright, in the historic tradition of American liberalism, believed in free speech, free choice, and promotion of public health – three goals that he found wholly compatible.

The controversy arose when a group of broadcasters banded together to challenge a 1970 Congressional statute that banned advertising of cigarettes on radio and television stations. As a result of the ban, cigarette companies pulled their substantial on-air commercials and instead turned to advertising in various print media. The broadcasters were furious over this loss of revenue to a competing medium. It was, oddly enough, the cigarette industry itself that was lobbying for enactment of the broadcast ban. Why, one asks, would the cigarette companies actually want a prohibition against their right to advertise on the air? 

The answer is entirely understandable with the full background in mind. Judge Wright, in his dissenting opinion, decried the decision of his brethren on the court to allow Congress to enact such a ban, seemingly in the interests of public health. Wright pointed out that prior to the advertising ban, cigarette advertising was subject to the Federal Communications Commission’s so-called “Fairness Doctrine,” a statute that required equal broadcast time to be given to both sides of a “matter of public controversy.” The anti-smoking forces of that day argued that since cigarette advertisers flooded the airwaves with smoking ads, the opponents of smoking were entitled to “equal time” to inform the public of tobacco’s deleterious health consequences. 

When the federal courts upheld this position in a 1969 court opinion, the anti-smoking forces launched one of the most effective public health advertising initiatives in history. As Judge Wright pointed out, cigarette companies advertised to gain brand loyalty at the expense of competitors, but the more they advertised, the more “equal time” was given to the anti-smoking forces. As a result, Judge Wright noted, “these advertisements triggered the anti-smoking messages which were having a devastating effect on cigarette consumption.” While the companies increased their advertising in order to protect their brands, “for every dollar they spent to advance their product, they forced the airing of more anti-smoking advertisements and hence lost more customers.” The era of the “equal time” for anti-smoking electronic advertisements produced a dramatic reduction in addictive conduct.

                 It came as no surprise to realists and cynics alike, then, that the industry sought congressional legislation banning tobacco advertising on the air altogether. No single company could afford to cease advertising for fear of losing their deadly race for brand loyalty. Together, though, the industry could hardly wait for legislation to ban tobacco advertising, thereby eliminating the anti-smoking forces’ legal right to air their “equal time” ads. Nor could the tobacco companies simply have a meeting and agree to stop advertising in order to get the anti-smoking campaign off the air, since such an agreement would likely have broken anti-trust laws, both a civil and criminal violation. So the tobacco companies actually had to lobby Congress to ban their own commercials – and, inferentially, the anti-smoking campaign as well – from the air. Congress, as usual, did what the lobbyists, and the campaign contributions, dictated.

                As Judge Wright pointed out, “At the time…the suggestion of voluntary withdrawal [of cigarette advertising by the companies] was taken by some as a long delayed demonstration of industry altruism.” But in fact it was the industry’s way of stripping the immense power of the anti-smoking ad campaign. “The result of the legislation,” wrote the judge “was that as both the cigarette advertisements and most anti-smoking messages left the air,” advertisers switched to non-electronic media and there was “an immediate resumption of the upward trend in consumption.” 

               “The theory of free speech is grounded on the belief that people will make the right choice if presented with all points of view on a controversial issue,” wrote Judge Wright. This theory was well illustrated when the anti-smoking forces were given equal time to meet the tobacco companies’ advertisements.

As the increasingly destructive “war on drugs” has demonstrated, prohibition against the taking of mind-altering substances has been an utter failure, just as prohibition was an equal failure in the war on alcohol. In recent years, largely as a result of public and private charitable funds going into anti-smoking campaigns, the smoking rate is at its lowest point in memory. No responsible governmental official should even think of anything that approaches prohibition. And yet, of course, they surely will, as the law edges closer and closer to a complete ban 

And the axiom well known to every mother surely applies to Big Brother - you cannot order kids to stop doing anything. All you can do is to persuade. And without freedom, persuasion is impossible.

Kyle Smeallie assisted in the preparation of this piece.