Ordinary folk, who know nothing of the terms used by philosophers and academics, will nevertheless have a common sense understanding of those wrongs that will depend on matters of degree and circumstance. And in contrast they show an awareness of those wrongs that will not be effaced by measures of moderation or excess. Most people will understand that it isn't always injurious or harmful to take an alcoholic drink-that it is a matter of volume, moderation, or excess. But the same people will not say that "genocide, taken in moderation—in small doses—may be harmless or inoffensive."
That sense of things tells us what was wrong with a policy of "Prohibition" on alcohol: It was a mistake for the law to deal with this matter with measures that swept in a categorical way, barring virtually all manufacture, sale, and consumption of alcohol, from hard liquor to beer and wine. And that sense of things, learned with hard lessons, has evidently affected the approach of the law to tobacco. But it also accounts for the moral incoherence that now afflicts the law as it seeks to apply a policy of prohibition, not to the manufacture and sale of cigarettes, but to the speech, or the advertising, that the cigarette companies seek to use as they try to sell a product that remains legitimate in the eyes of the law.
That product remains legitimate, in part, because politicians lack the nerve to outlaw a product that gives employment to so many people and a source of considerable revenue to the State. But then, too, politicians have long recognized the lessons of Prohibition and the hazard of creating a vast black market overnight for a product that so many people still savor.
That dilemma was on high display just a few weeks ago when a panel of the DC Circuit Court of Appeals struck down the latest attempt of the Federal Drug Administration (FDA) to put, on commercial products, words that their producers do not wish to speak. (Reynolds Tobacco Co. v. FDA). That matter of "coerced speech" offered a slender strand of connection to the First Amendment. And with an opinion tightly qualified and circumscribed, the court carved out a slender exception to that array of warnings that the government can compel companies to put on the labels to their cigarettes. The power to impose rules ever more stringent was enlarged by the Democratic Congress with the Family Smoking Prevention and Tobacco Control Act of 2009 and signed by President Obama. In dealing with the case at hand, Judge Janice Rogers Brown did not raise any challenge to the legitimacy of the ends that brought forth these regulations. As she conceded,
No one doubts the government can promote smoking cessation programs; can use shock, shame, and moral opprobrium to discourage people from becoming smokers; and can use its taxing and regulatory authority to make smoking economically prohibitive and socially onerous.
Then what was the problem? In this case the "graphics" were graphic indeed: there was one picture of man still so addicted to cigarettes that he was smoking through a tracheotomy hole in his throat. In another, there was a man with staples on his chest on an autopsy table. In yet another, a baby was enveloped by smoke, with a woman nearby crying, presumably suffering the death of a husband and father. Another image contained that of a healthy man with a tee-shirt proclaiming "I QUIT." And for those yet in doubt there was an 800 number for those who may wish help in quitting.
For the tobacco companies, this was essentially a requirement of carrying a message inciting potential customers not to buy the package the companies were lawfully selling. Still, as Judge Judith Rogers argued in dissent, these images were quite in line with the mandate in the statute. They did not offer speculation about the risk of boating or climbing mountains; they offered, as her own court had said, "a complete understanding of the many serious diseases caused by smoking, the true nature of addiction, or what it would be like to experience either those diseases or addiction itself."
It required an analysis of consummate precision for Judge Janice Rogers Brown, joined by her senior colleague, Raymond Randolph, to mark off a limited zone in which the Reynolds Company could be spared the obligation to carry these disturbing images. Judge Brown recognized the cases in which the Supreme Court had sustained an obligation on the part of companies to dispel false claims for their products or post adequate warnings about risks. For years it was assumed that "commercial speech" was open to far more restrictions under the First Amendment than "political" speech. And this assumption has strangely hung on even as the Supreme Court has come more and more to recognize that there is no lesser claim to freedom for the speech that forms a natural annex to the right of ordinary people to sell a legitimate product or service. It was part of her craft that Judge Brown was willing to leave these understandings in place as she explored the "levels of scrutiny" or the burdens of justification that the courts had contrived in the restriction of different kinds of speech. Judge Brown did not invent these "levels of scrutiny." They were stumbled into over the years with the writings emanating from the Supreme Court, and the judges in the lower courts have been compelled to work with what they have been given. These distinctions are treated then as though they make sense mainly by the judges who traffic in these terms. And of course the judges are joined by the lawyers who are compelled to use the language, and make the sounds, that the judges affect to understand.
For philosophers or logicians, the differences among "strict scrutiny," "intermediate scrutiny," or a mere "rational relation" between the law and its ends, would be rather like words invented for a game, which mean virtually nothing outside the game, and very little inside it. To follow the gradations of "scrutiny" in this scale is to mark the difference between a real "justification" for a law, as opposed to "lame justification" or a "justification good enough to get through the day." The more demanding question is whether any of the rationales brought forth for the law can supply the properties of a real justification-a reason that actually shows the rightness or justification for the restrictions on personal freedom that is being imposed with the force of law.
The judges treat discriminations based on race, or restrictions on political speech, as forms of freedom that demand "strict scrutiny" and a truly "compelling interest" on the part of the State to justify the restrictions of the law. But why are judges in a position to offer pronouncements on the manifold interests in the community that are higher or lower, more or less "compelling"? When the Court upheld racial preferences once again in the Grutter case in 2003, Clarence Thomas raised the question of just why the people of Michigan had a "compelling interest" in supporting, with public funds, an elite law school, with many students heading off for careers in other states. These assessments, of the interests of higher and lower standing, would seem to involve the judgments made most aptly by people in elective office, the people who are more closely tuned into the sentiments and interests at work in the community. They are likely to have a surer, more precise sense of what people in their districts care about, just what they can afford, and what they may be willing to pay for. These are not the judgments that spring from the principles contained in the kit carried by judges.
Judge Brown brought the restrictions here under a form of "intermediate scrutiny" drawn from the case of Central Hudson Gas and Elec. Corp. v Public Service Commission (1980): Before an agency promulgates new regulations, it must show a "substantial" interest, and that means bearing a substantial burden of proof. For Judge Brown that means putting the government to the test of showing that any of these regulations has actually worked, in trials, to reduce the number of smokers. Mere speculation or conjecture, she says, will not be enough. The FDA cited many trials, with large samples of people, but as Judge Brown observed, "[A]t no point did these studies attempt to evaluate whether the increased thoughts about smoking cessation led participants to actually quit." What the judge found was a reliance on "questionable social science," and with that finding the court remanded the decision back to the FDA for revision.
Conservatives will find some satisfaction in this judgment drawing back the reach of the government in forcing words into the mouth of unwilling speakers. And yet the grounds of the judgments may not rest easily with them. In the first place, the argument bears an eerie similarity to the arguments used by the courts as they challenge the tests used by employers when those tests yield results that are racially "disproportionate." Even when the tests are clearly purged of any "cultural" bias, and even when racial minorities are already represented heavily among the employees, some judges have insisted on taking the test to a further level. The police in Washington DC were testing for literacy and their mastery of the "training course." But Justice Brennan argued that there was a need to do more than show that the test correlated with performance in the training course. He insisted that the City should show a correlation between the text and success in the actual job of policing. [Washington v Davis (1976)]
At a certain point, in the arts of measurement and testing at all levels, this burden of proof becomes utterly impracticable. There are some nurses and doctors who might be at the borderline of legal blindness, and yet they can perform certain surgeries blindfolded. But it would be the height of foolishness to insist on actually testing, on real patients, in real surgeries, the different cohorts of nurses and doctors who pass the test of visual acuity, set against a cohort whose eyesight falls short of passing. At a certain point, the judgment has to be made as to whether there is some connection in principle between the attribute being tested—say visual acuity and blindness—and the dangers involved in surgery. Judge Brown had already conceded that the federal government could validly post warnings and messages that were directed to the end of discouraging people from smoking. Those messages, as she said, could legitimately impart "shock, shame, and moral opprobrium," and make "smoking economically prohibitive and socially onerous." Of what then are we complaining, once those premises are installed? The deeper problem here is that the judges are running up against what the philosopher Thomas Reid referred to as "natural language" or the signs that are readily understood.
We know the difference between the smile and the frown, between the friendly crowd and the menacing crowd. We know the difference between the crowd that welcomed the White Sox back to Chicago after they won the World Series, and the crowds that used to stand sullenly all night outside the home of the first black family moving into the neighborhood. In the past the police, governed by common sense, could clear that latter crowd away.
Justice Hugo Black famously professed to champion a nearly absolute freedom of speech. And yet Black was willing to bar even a peaceful gathering of a crowd outside a courtroom in order "to protect judges, jurors, witnesses, and court officers from intimidation by crowds which seek to influence them by picketing, patrolling, or parading in or near the courthouses in which they do their business or the homes in which they live." (Recall his separate opinion in Cox v. Louisiana ) But of course, the judges could as well begin with the premise that the crowd is presumptively exercising its freedom to assemble, to demonstrate, and to express itself. The judges could go on to say that we would require "strict scrutiny" and the most compelling reason before the police could move the crowd. Would we really say anything serious or meaningful if we then said that, before the police could disperse that crowd, the authorities should offer controlled experiments to show that the assembling of crowds outside a courtroom has no discernible effect on the quality of justice rendered inside? Would our judgment really hinge on empirical findings of that kind, or would it not hinge, rather, on a common sense understanding that we were dealing with a crowd whose very presence could have, as Black thought, an intimidating effect, which could deflect a court from a judgment that was just?
In the case of the FDA and the advertising, the court is asking the government to bear burdens of justification that are in point of fact impracticable. But beyond that, the demand for this additional evidence beliesthe common sense recognition, evident to anyone, that these "messages," however graphic, bear a precise connection in principle to the ends that Judge Brown and the court do not challenge. As for the government, it is using these regulations as a means of making life unlivable for the cigarette companies while avoiding the hard question in principle of whether it is willing to be honest in barring the manufacture and sale of a product it regards as patently harmful. But the lesson of Prohibition inhibits the politicians from crossing that bar. On the other side, Judges Brown and Randolph cannot declare as illegitimate or unconstitutional a regimen of policy designed to discourage smoking. All they can do is find a ground for barring the government from going just a bit too far in putting words in the mouths of unwilling speakers. The judges cannot quite explain why this is too far or why the messages are ill-fitted to their legitimate ends. There seems to be a sense that a line has been crossed: that it is just too much to humiliate the companies, that is is deeply indecorous to force them to say that people are imbeciles if they buy their product. I, for one, am glad that Judges Brown and Randolph managed to find a line not to be crossed. But in doing that, they had to flex their considerable art while working within a scheme of analysis they have inherited, and which cabined the reasoning they could employ. We may be grateful for the outcome, but this may be one of those moments when the art is so sublime that it cannot quite explain the wonders it has worked.
There is more, though, to the story, for there is yet another dimension to this problem that has gone curiously unnoticed, and it was revealed in Judge Judith Rogers's opinion in dissent. "Although some graphic images may evoke emotional reactions," she conceded, "it is undisputed that smoking can cause the health consequences they depict." What that language recalls is the charge that has been raised, with high decibels, against those pro-life demonstrators who stand outside of abortion clinics, on the public byways, with signs bearing the bloody images of babies who have been poisoned or dismembered in abortions. The protestors have been ridiculed for stirring "emotional reactions" as a means of making their point. And they have been reproached here severely even though the images they display show precisely, as Judge Rogers would say, the real "nature" and "experience" of the surgeries they are protesting.
One of the most unnoticed connections has been the problem that connects the advertising of cigarettes-and abortions. The point of connection is that the law, in both cases, may be seeking to impose severe restrictions on the advertising of products or services that remain quite legitimate in the law. The political class does not have the nerve to bar the manufacture and purchase of cigarettes, but it is willing to impose all kinds of warnings and labels designed to discourage the use of this legitimate product. And the most zealous advocates of those warnings think it clearly legitimate to force consumers to see the most graphic and disturbing images that spring from the product they are about to buy. In that case, why would the same kinds of reasons not support quite amply the posting of graphic images of abortions at abortion clinics, or force the counselors at Planned Parenthood to display those pictures fully, at length, before letting the prospective client for abortion order up the procedure?
We may be simply encountering again that state of affairs that even Justice O'Connor had once recognized: that "no legal rule or doctrine is safe from ad hoc nullification ...when an occasion for its application arises in a case involving state regulation of abortion." [Dissent in Thornburgh v. American College of Obstetricians and Gynecologists (1986)] The subject of abortion makes its own rules, fashions its own regime of jurisprudence, quite apart, often quite at odds, with what is taking place elsewhere in the law. And yet ... the cases on the regulation of tobacco may put in place precedents, lines of reasoning, that legislators in the states may draw upon, in confirming that sense, taking hold more and more within the public, that abortions are things to be discouraged and diminished, not celebrated and promoted. A new wave of restrictions on that advertising would promise to make life harder and more vexing for the promoters of abortion. And no doubt the judges will be quick to contrive new rationales for striking them. But why spare them the strain? Even if the measures of the DC Circuit may not exactly be met—even if the precise effects of these regulations cannot be gauged, even if it cannot be predicted just how many abortions are discouraged—some of us may judge these restrictions on advertising as warranted in principle, and in the run of things, eminently worth doing.
Hadley Arkes is the Senior Fellow of the Claremont Institute's Center for Constitutional Jurisprudence