(Note: In 1987, the Philip Morris tobacco company, facing increasing calls for the banning of cigarette ads, sponsored a national essay contest on the topic of “the First Amendment's application to American business” and “the ramifications of a tobacco advertising ban.”

Announcements of the contest ran in major American magazines. There would be four national winners and 50 state winners.

The night of the contest deadline I knocked off the essay below, barely getting it to the Post Office in time. I was Georgia winner. All the winning essays were collected in a book, American Voices: Prize-Winning Essays on Freedom of Speech, Censorship and Advertising Bans, which (I was told) was sent to every library in the country. Plus I got a thousand bucks.

A few years before I wrote this, my father, a cigarette addict, had died of lung cancer at the terribly young age of 58. My mother also smoked, and would soon have a smoking-related stroke. Living in a house of heavy smokers, my lungs, eyes and nose often burned. I hated cigarettes, and still do (though some of my best friends are cigarette smokers). But I hate censorship far more.

I have resisted the urge to edit this, though it plainly could be improved. )

* * * * *

CENSORSHIP, BUSINESS, AND THE FIRST AMENDMENT

by

James W. Harris

Imagine, for a moment, that everyone in America who favors censorship of one kind or another suddenly got their wish. Imagine they could clap their hands and cause any material that they objected to, for whatever reasons, to disappear.

The result would be a country vastly different from our America today.

Virtually every film and television show would vanish; there are many who consider these mediums inherently evil and corrupting. The shelves of libraries and bookstores would be almost empty. The works of D. H. Lawrence and James Joyce would go, as would Huckleberry Finn ("racist"), The Wizard of Oz ("glorifies witchcraft"), and millions of other books, classics, and potboilers alike.

Even the Bible would disappear; more than a few people have called for its suppression.

Many government records would never be seen by the public. School textbooks would be so watered-down as to be meaningless. Newspapers would be forbidden to run controversial stories. Advertisements for innumerable products -- including alcohol, cigarettes, meat, contraceptives and feminine hygiene products -- would be outlawed.

Those with minority and out-of-mainstream political views would be silenced.

In short, if everyone in America who wants to limit speech were allowed to do so, the result would be a country of intolerable blandness and sterility -- 'l country stripped of the rich diversity of viewpoints and the vigorous free exchange of ideas and products that is the hallmark of a free society.

Luckily, no one can simply clap their hands and banish those forms of expression they find disagreeable. The rights of all Americans to free speech -- even speech that is controversial and offensive to others -- is protected by one of the most important political documents in the history of mankind: the First Amendment to the Constitution of the United States.

The power and beauty of the First Amendment lies in its sweep and simplicity: "Congress shall make no law...abridging the freedom of speech, or of the press."

This glorious proclamation of absolute freedom of speech makes no exceptions for speech that some find offensive. It is a declaration of free speech for each person as a basic, innate human right.

Unfortunately, many times we as a nation have not fully lived up to the challenge and responsibility of that declaration. Throughout American history, various forms of speech have been restricted or prohibited. Books have been banned, dissidents have been jailed for speaking their views, and publications have been harassed or shut down.

Sadly, this sometimes happens even today. Although no one can simply clap their hands and suppress the free speech of others, it is sometimes quite possible for well-organized groups to persuade and pressure government to clamp down on forms of speech they want to eliminate.

Demands for censorship can come from all across the political spectrum -- from both left and right, Republicans and Democrats, moderates and extremists. Most of those advocating censorship are not evil people; indeed, they are motivated by what they view as the best of intentions. They want to protect society from ideas they consider to be evil or dangerous or corrupting. In advocating the use of government force to suppress these ideas, however, they are gravely wrong. Not only are they violating the First Amendment rights of others, they are granting government power that may one day be used against themselves and controversial causes they might support.

One of the most attacked, least-defended, and least understood form of free speech in our society today is commercial speech -- the rights of businesses to advertise their products and viewpoints. There has long been a tendency by some to attempt to draw a distinction between commercial speech and other kinds of speech, and to imply that commercial speech is less important, and therefore not as strongly protected by the First Amendment. This is grievously wrong in a number of ways.

Look again at the wording of the First Amendment. It contains no qualifiers about different forms of speech. It contains nothing to the effect that "this amendment applies to everything except business advertisements." It declares that Congress shall not interfere with speech, period. And this must include commercial speech, or else the amendment itself is meaningless.

Commercial speech is, after all, communication. It is an attempt by one party to communicate ideas to others. When government restricts or outlaws this communication, they are engaging in the suppression of ideas and information. This is censorship, and it is every bit as tyrannical, every bit as dangerous, as censorship of books or speeches.

Saying such censorship doesn't matter because the material being banned concerns commercial products instead of political or cultural thoughts is a false and dangerous distinction.

In fact, attempts to distinguish between commercial speech and other forms of speech can run into serious and troubling difficulties. For example, when a politician runs for office, he is selling a product -- himself and his beliefs -- for which he expects to receive a salary. Are his ads, then, purely political speech, or do they have commercial overtones? When booksellers advertise a book, they are clearly selling a product. Does this make them any the less deserving of protection under the First Amendment? It is difficult, if not impossible, to draw a clear line between the commercial and the political or cultural aspects of such speech.

Those who maintain that commercial speech is somehow less "important" than other forms of speech -- and therefore less worthy of First Amendment protection -­ reveal themselves as either arrogant, ignorant, or uncaring. Try telling the owner of a business, whose advertising reflects his pride in his work and his efforts to meet the needs and desires of the public better than his competitors, that his right to advertise is not as important as the right of his neighbor to run for political office or publish a newspaper. The right to advertise his product might well be of far greater value to such a man than political or social speech. Indeed, his livelihood and self-pride may depend upon his advertising.

The claim that commercial speech can be regulated because it is somehow less significant is not only wrongheaded, it is frightening in its implications. For it puts the government in the position of determining what forms of speech are significant and insignificant -- thus giving government a powerful and dangerous tool to interfere in free expression and in the economy. It is also dangerous because it moves away from the idea of speech as a basic, inalienable human right, and instead defends speech as significant depending upon its "importance" (again, as determined by government) for society. This goes contrary to the belief of the Founding Fathers -- clearly expressed in the Declaration of Independence and the Bill of Rights -- that people have certain inalienable rights that government cannot legitimately interfere with. (Note that we have a Bill of Rights, not a Bill of Acts To Be Permitted In Some Circumstances Because They Are Useful To Society.) Free speech is one of those rights, and it belongs to businesses, publishers, and advertisers as surely as it belongs to poets, politicians, and journalists.

Not only is advertising protected by the First Amendment, it is the very lifeblood of a free market economy such as ours, an economic system rooted in the rights of individuals to own and exchange goods and services. Such a society depends upon advertising to provide consumers with information about the quality, price, and availability of goods and services. Furthermore, advertising greatly encourages competition, price-cutting, and improved products -- all of which benefits consumers -­ since businesses must compete publicly among themselves to win the favor of the public.

Still another crucial role advertising plays in our society is funding our great diversity of newspapers, television and radio broadcasts, magazines, and books.

Advertising revenue literally keeps many such publications and broadcasts alive, and makes information and entertainment much cheaper and much more available than they would otherwise be. The importance of this to a free society cannot be overstated.

Given the extraordinary importance of advertising to our society, given the tremendous benefits society gains from advertising, and given that advertising is a form of speech and thus protected by the First Amendment, one would expect that commercial speech would be greatly respected in our society, and that it would be fiercely defended.

Alas, this isn't so. Many people who otherwise consider themselves staunch defenders of the First Amendment -- people who would be horrified at proposals to censor books or magazines -- have no hesitation in proposing to restrict advertisements for products they find disagreeable.

There is no better illustration of this than the current drive to ban advertisements for tobacco products.

Like so many others who advocate censorship of ideas they don't agree with, those who call for tobacco ad bans are spurred by what they see as good intentions. They feel that smoking is a dangerous habit, and they want to discourage it.

However, good intentions do not justify bad means. It is one thing to hold a view and to attempt to persuade others to accept that view. It is quite another thing to use government force to suppress the rights of some individuals to free speech and the exchange of lawful products in order to force a set of values on society.

When tobacco opponents endorse such suppression, they have moved from being concerned citizens to being censors and moral dictators.

We have already observed that commercial speech -- advertising -- is a moral and constitutional right and plays a critically important role in our society. This applies to tobacco advertising as well.

A ban on tobacco advertising would set a profoundly dangerous precedent. Once we grant the principle that government can prohibit the advertising of certain products in order to "protect" us, why stop at tobacco products? Why not ban advertisements for alcohol? Why not ban the advertising of foods high in sugar, fat, salt, and other potentially unhealthy ingredients?

Indeed, why stop even there? There is no question that many political writings -­ such as the works of, say, Karl Marx or Adolph Hitler -- have caused far more misery and death than tobacco products ever possibly could.

So -- given the logic of those who would ban tobacco ads -- why not ban the advertising of these books and other works that might create dissent or political violence? Why not prohibit minority political groups from presenting their views in an attractive, persuasive form?

Proponents of a ban on tobacco advertising frequently ignore this point, or dismiss it as an exaggerated, unrealistic objection. Yet the principle -- that government should protect us from exposure to advertising for lawful products deemed harmful – is precisely the same in all these cases.

And, in fact, we can already see this principle being applied in America today. There are many who consider themselves good Americans who would deny speech to many of their fellow Americans for precisely the reasons given above.

Furthermore, at this very moment, a number of organizations are working to prohibit the advertisement of beer and wine on television and radio -- again, using exactly the same rationale given for banning tobacco ads: that these products can be harmful, and therefore their advertising should be prohibited in order to "protect" us.

Indeed, the tobacco ad ban proponents themselves show us the very real danger of such precedents. When Congress outlawed tobacco advertising on television and radio several years ago, it was argued that the broadcast media were a special case. They were so omnipresent and persuasive, we were told, that an advertising ban could be justified here where media bans elsewhere could not.

Yet now, just a few years later, we are now hearing calls -- from many of the same people who supported the broadcast ad bans -- for the suppression of all tobacco ads: an amazing and far reaching (yet logical) extension of the dangerous principle that advertising for certain legitimate products can be outlawed.

Clearly, once we accept the basic principle behind tobacco ad censorship, we are opening the door to increasing government intrusions into virtually every area of our personal and economic life. This goes sharply against the best traditions of our nation, which was founded on the idea that there are wide areas in both personal and economic life where government cannot lawfully intrude.

I believe that the moral issue -- the right of all Americans, including tobacco companies, to untrammeled free speech and the right to engage in voluntary exchanges of goods and services in the marketplace -- is the most important aspect of the tobacco ad ban debate. However, it is important to point out that the proposed ban would have other highly significant negative effects in addition to those already discussed.

For example, such a ban could negatively affect the health of many smokers. Many tobacco advertisements contain information on the levels of tar and nicotine in their products, thus allowing smokers the opportunity to choose cigarettes with lower levels of these substances if they wish. An ad ban would deny this information to consumers.

Similarly, should a company develop a safer cigarette, a ban would make it almost impossible for them to inform consumers about their product.

An advertising ban would also deny smokers information on the prices of different brands at different locations. This would deprive smokers of the chance to spend their money most effectively. Such a ban would also lessen competition among different brands, leading to a probable increase in tobacco prices. Thus a tobacco ad ban amounts to nothing less than taking money out of the pockets of those adults who have freely chosen to smoke.

To sum up, a tobacco ad ban is a bad and tyrannical idea. It is a clear and blatant violation of the First Amendment, and an obnoxious government intrusion into private affairs. It sets a profoundly dangerous ominous precedent, and significantly threatens our system of free enterprise. It also would negatively affect the health and finances of adults who choose to smoke.

Those who wish to discourage Americans from smoking have the same First Amendment rights as the tobacco companies. They have the same access to advertising, and they are free to issue statements, to picket, to boycott, to write articles and books, and to use any other peaceful means to try to persuade others of the merits of their position. Indeed, such a lively debate -- such a clash of competing viewpoints -- is in the best spirit of the First Amendment.

However, when smoking opponents advocate the use of government force to restrict the speech and behavior of peaceful individuals, they are assaulting precious values that have made the United States the freest and most prosperous nation in history.

It is ironic that such a massive and precedent-setting act of censorship will be debated in Congress during the 200th anniversary of our constitution. During this anniversary, our freedoms and the documents that preserve them -- including the First Amendment -- will be widely discussed. If we as a nation properly understand and respect those freedoms, there will be no ban on tobacco advertising -- and no other censorship in America.

END