Four of the country's largest tobacco companies have filed a cigarette label lawsuit against the Food and Drug Administration, challenging its implementation of a law that requires the placement of graphic and disturbing images on tobacco packaging.
The group contends that the images, one of which depicts a pair of diseased lungs, violate their free speech rights, forcing them to urge consumers not to buy their products while also disseminating the government's message, which they claim is highlighted in an emotional, non-factual way.
The fact is that commercial speech--that which is economic in nature--has significantly less protection than other types of speech.
It is not protected if false or misleading, and may be restricted if it furthers a substantial government interest that is actually furthered by the restriction.
However, the restriction may not be more extensive than necessary.
This last requirement is ultimately the key to the industry's cigarette label lawsuit, as lessening the health effects of smoking are a substantial interest that are furthered by graphic labels.
But are they excessive? Is there a better, less intrusive way to notify smokers of potential harm? Can it be done in a more tactful manner that doesn't scream "Don't buy my product!"?
There's no answer these questions as of this moment, but a lawsuit on appeal to the 6th Circuit may be instructive.
That lawsuit, which also deals with tobacco advertising, puts forth many of the same First Amendment arguments as does this cigarette label lawsuit. The judge denied all of them, finding for the government.