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STATEMENT OF ROBERT S. PECK, LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION Regarding THE UNCONSTITUTIONALITY OF SENATOR HARKIN'S TOBACCO ADVERTISING TAX PROPOSAL March 17, 1993 Later today, Senator Tom Harkin of Iowa will announce his plans for legislative action to limit the deductibility of tobacco advertising and promotion. The ACLU believes that Senator Harkin's proposal would be an infringement of First Amendment rights because it targets a particular viewpoint on a legal, commercial product for unfavorable treatment. Attempts to censor or burden advertising of legal products are based on the premise that the people do not know what is good for them. Silence the speech, or in Senator Harkin's case, force cutbacks in the speech because of financial burdens, and what the people don't know won't hurt them. Fortunately, the First Amendment prohibits such abusive paternalism. Recently, the Supreme Court invalidated New York's "Son of Sam" law on the grounds that a "statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech." Simon & Schuster Inc. v. Members of the New York State Crime Victims Board, 112 S.Ct. 501 (1991). In doing so, the Court reaffirmed its 1984 declaration that "[r]egulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment." Even the most offensive and reprehensible speech cannot be burdened on the basis of the viewpoint expressed, as the decision in the recent cross-burning case demonstrates. R.A.V. v. City of St. Paul, 112 S.Ct. 2538 (1992). Moreover, under the Constitution, it does not matter whether the financial burden being imposed is an additional tax or the denial of a tax deduction. See Committee for Public Education & Reliqious Liberty v. Nyquist, 413 U.S. 756 (1973). The conclusion that the Harkin proposal violates the Constitution is not altered by the fact that tobacco advertising is commercial speech. The Court has recognized that commercial speech should receive substantial protection, in part, because a consumer's interest in the free flow of commercial information "may be as keen, if not keener by far, than his interest in the day's most urgent political debate." Virginia State Board of Pharmacy v. Virqinia Citizen's Consumer Council, 425 U.S. 748, 763 (1976). Obviously, at a minimum, it should receive more protection than the so-called "unprotected speech" at issue in the cross-burning case, and therefore, the content-neutrality principle must apply. Some claim the tobacco products are uniquely dangerous, so it is perlllissible to ignore the First Amendment just this once. Yet even before the tobacco deductibility debate has finished, other Members of Congress are lining up to attack the commercial speech rights of other legal products. Congressman James Moran of Virginia recently introduced a bill which would completely repeal the deductibility for tobacco and alcohol beverage promotion. Senator William Cohen of Maine recently called for similar action with respect to the promotion of prescription drugs. Can it be long before someone attempts to do the same for the promotion of abortion services? Censorship, the Constitution teaches, is never right. And the Supreme Court has said it cannot stand where we are speaking of lawful activity and we are not being misleading. Fortunately, Congress may have the foresight to reject Senator Harkin's proposal because of the constitutional risks it presents. The Senator offered a similar amendment in the last Congress which was defeated by a vote of 56 to 38. We will be working hard to see that this vote is maintained. I am pleased to be joined today by Alan Slobodin of the Washington Legal Foundation. Our organizations are often on opposite sides, but here we agree. Before I turn the floor over to Alan, I should let you know that we are not alone in raising these constitutional objections to Mr. Harkin's proposal. When the senator offered his amendment last year, many groups raised constitutional concerns, including the Thomas Jefferson Center for the Protection of Free Expression, the Freedom of Expression Foundation, media lawyer Floyd Abrams, the Media Coalition, law professors Ronald Rotunda of Illinois and Burt Neuborne of NYU, among others. In sum, the differential treatment of a particular commercial enterprise, based solely on disapproval of its promotional message, violates the Constitution. The Harkin proposal should be


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