FORUM: TOBACCO PACT 'TRAMPLES' ON FIRST AMENDMENT

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Amid the glow of the tobacco settlement lurks an alarming result, largely uncovered by the media. The state attorneys general, as Arizona Attorney General Grant Woods said, "did what no government or court could do."

What they did was trample the First Amendment under the excuse that protecting children from exposure to advertising and marketing methods for cigarettes will reduce the number of children who smoke.

NO CREDIBLE STUDIES

The truth is there has never been a credible study completed that shows any causal connection between advertising and a child's decision to smoke. All the studies that have been done in various places in the world have shown that peer pressure and behavior of siblings and parents are the primary reasons kids choose to take up smoking.

In countries such as Sweden, where cigarette advertising is banned, there has been no decrease in underage smokers.

A very basic tenet of the First Amendment is that neither the government nor a court can restrict speech for legally sold products unless it is shown that the restriction directly advances the interest at which it is aimed. The interest of the attorneys general was to reduce the incidence of children taking up the destructive habit of smoking.

This is a very laudable interest. But the fact remains that banning outdoor advertising and sponsorship of sporting events, prohibiting characters in ads, restricting print media and enjoining marketing on the Internet have no proven effect on advancing the stated interest. Until that proof is shown, the advertising restrictions would fail under First Amendment scrutiny.

Thus, Attorney General Woods was correct. He and his brethren indeed did what no court or government could do.

UNITY RULED THE DAY

How did they do it? By banding together. Even the cigarette companies had to blink at the costs and the business disruptions that a group of 40 attorneys general could bring upon the industry.

At the end of the day, if the advertising restrictions remain, the cigarette companies are on common footing with one another. All will be subject to the same competitive restrictions on the exercise of their free speech. All this without a scintilla of evidence that the restrictions will prevent children from taking up the habit. Who is the winner there? Certainly not free speech.

What's next, a vigilante posse?

Many attorneys general are open foes of alcohol advertising and its purported effect on children. Others have routinely questioned nutrition claims, weight-loss claims, promotional games and contests and other ad practices. To date, however, their impact has been relatively minimal given the constraints put upon them by courts and by the First Amendment.

However, while they have banded together in the past, their number has never been as many as 40. But now, coming off the glow of their perceived victory over the tobacco industry at the expense of the First Amendment, what is to prevent them from using this unprecedented collective strength to attack other exercises of First Amendment rights under the guise of protecting children, the elderly or other sensitive groups?

LOT MORE THEY COULD DO

To paraphrase Attorney General Woods, they not only did what no court or government could do, but there is a lot more they could do that no court or government could accomplish.

Let's hope that those parts of the settlement that undermine free speech are carefully reviewed and removed from the final agreement. If not, they remain a dark cloud over hard-fought First Amendment rights of advertisers in every category of legally sold products, not just tobacco.

Mr. Wood is a partner in the law firm of Hall Dickler Kent Friedman & Wood, New

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