Just in case the ad industry has forgotten, the chief executives of major U.S. tobacco companies have reminded everyone their companies are ready to surrender some of their First Amendment rights to advertise if only the offer fetches the right price.
They are involved in a very complicated negotiation in Washington, with issues -- principally partial immunity from future liability lawsuits -- that reach far beyond advertising matters. Its voluntary resolution, however, offers such substantial benefits to advertisers as a whole that the ad industry should be looking for ways to help bring it about. One step is to warn the tobacco companies they can't count on automatic ad industry support if they choose to fight it out with the government in court rather than settle.
For advertisers generally, a voluntary settlement means: Advertising's critics would lose their easiest target; the concept of self-regulation of troublesome ads would be on display as an alternative to government action; and, most importantly, the dispute would be kept out of the courts, where judges might be tempted to bulldoze the First Amendment to muzzle tobacco ads in the name of protecting young people.
In testimony before the Senate Commerce Committee last week, the tobacco company CEOs warned they will never voluntarily agree to new restrictions on their advertising and marketing practices without liability protections. (One exception: They promised, no matter what, that cartoon characters are gone from their ads for good. Even tobacco companies, it seems, finally grasp the damage done by Camel's Old Joe campaign.)
While liability issues plainly are key to the tobacco executives, they are not the advertising industry's concern, nor should they be. Until now, however, the ad industry has supported in court the tobacco companies' First Amendment right to advertise -- even though many ad industry people have strong feelings about the dangers of smoking and the impact of tobacco advertising.
We've believed for some time that the ad industry should end its seemingly automatic backing for tobacco advertising rights. That was reinforced when the tobacco industry signed its pact with 40 state attorneys general last June -- an agreement in which they agreed voluntarily to curb many advertising and marketing practices.
The tobacco companies need to hear from the advertising community that a settlement that defuses these issues is a far better alternative than more litigation. And ad groups should be prepared to sit on the sidelines in any future court fight if the tobacco industry doesn't do its best to make a voluntary agreement a reality.
ONE LESS BAN
The supreme court was right to turn aside Clinton Administration objections and let stand lower court decisions that end federal laws and rules prohibiting TV and radio ads for casino gambling. While the decision technically affects just nine states in the West, including Nevada, a lower court has taken similar action in New Jersey.
It's hard to imagine how federal policy could continue to single out one form of gambling -- casinos -- and two media -- TV and radio -- when there is so much advertising going on for other forms of government-sanctioned gambling, particularly the ubiquitous state-operated lotteries, where the odds of winning are even longer than those found in casinos.
It is this sort of hard-to-justify government ad bans the courts are right to weed out.