Since tobacco has become unpopular with the majority of Americans, the tobacco people have tried to identify themselves as a potentially persecuted minority. We all know that it is bad to take rights away from a group merely because they are in disfavor.
But wait a minute. Can a commercial product be in the same constitutional category as a minority of people?Does it makes sense to worry that discrimination against cigarettes might lead to discrimination against toothpaste or that banning cigarette advertising could embolden government to censor Coke commercials?
Let's get real. Regulation of advertising is part of government's obligation to police the marketplace. Snake oil ads are forbidden; mineral oil ads are not.
Since 1976, the Supreme Court has struggled with the limits of "commercial free speech." Finally, in a 1980 decision of Central Hudson Gas and Electric Corp. vs. Public Service Commission, the court developed a four-part analysis to decide whether any particular type of commercial expression was protected by the First Amendment:
1. Does the "speech" in question concern lawful activity and is is not misleading?
2. Is the government interest in suppressing it "substantial?"
If both question can be answered in the affirmative, then:
3. Does the particular type of regulation directly advance the asserted government interest?
4. Is the regulation not more extensive than necessary to serve that interest?
Let's subject cigarette advertising to this test.
Oops! - It fails the very first point. While smoking is legal, cigarette advertising clearly is misleading. Smoking is the No. 1 cause of premature, preventable death and disease in our society.
Is the governmental interest in suppressing cigarette advertising "substantial."
Is the government interested in protecting the health of young people? Any court would say that is a substantial state interest.
Would a ban on cigarette advertising directly advance the government's interest in protecting the health of young people? Ask Joe Camel. Does he make smoking more attractive to kids? You can be sure that R.J. Reynolds wouldn't spend hundreds of millions of dollars to put his ugly mug everywhere if he didn't.
Would a ban on cigarette advertising be more extensive than necessary to promote the health of America's young people? Well, we've had warning labels on cigarette packs and advertising for 20 years now and there are 50 million smokers.
Would a ban on cigarette promotion in some way erode free speech?
Let's not forget this principle, when applied to advertising was invented in 1976 - not 1776.
Commercial free speech will probably go the way of theory such as "economic due process" (which forbade the regulation of child labor) - the product of a fleeting majority on the Supreme Court, but untenable as a guiding principle of constitutional law.