Cigarette Corporations Aren’t People

Sometimes First Amendment cases frustrate Americans because the freedom at stake often is the freedom to say things that are unpopular, cause offense, challenge or undermine government policy supported by many, or inflict emotional pain. Infuriating though that can be, people usually appreciate that the Supreme Court’s protection of someone’s unpopular free speech also protects a core American value and benefits all of us. When the courts save the “right” of cigarette corporations to advertise around playgrounds and elementary schools, or to conceal product hazards, however, is a single human being made any more free? Is our public debate and state of knowledge any more expanded or enriched?

When the government suppresses the speech of real people, we all lose some of our freedom. Our ability to govern ourselves is compromised when ideas and information are restrained, even bad ideas and unpleasant information. When we regulate corporate economic conduct, though, what rights of anyone are lost? Is speech even at issue at all?

The Massachusetts law regulated corporate conduct, not speech. If the Massachusetts law curtails the youth-targeting strategies of cigarette corporations, sales might drop, but how does that create less freedom of speech for anyone? Any human being who had something to say about cigarettes and youth smoking remained free to say or write whatever that person wanted, wherever and whenever he or she wanted, about cigarettes, youth smoking, or anything else. The Massachusetts law about cigarette advertising had nothing to do with people or groups of people speaking, writing, or expressing their point of view in any way. Even if someone wanted to stand outside a public park or school with a sign saying, “I love cigarettes and kids should, too,” the Massachusetts law did not touch them.

In the unlikely event that a real person actually did that, though, what would happen? Perhaps we would see how free speech is supposed to work in America: other people would talk with the miscreant and ask him or her to consider whether that was a decent thing to do. The creep might respond, and debate would ensue. At some point, the cigarette enthusiast or his or her opponents would get tired and move along. If the smoking advocate really had strong views about the merits of smoking, the debate might continue the next day when the person came back again or in writing, interviews, meetings, or wherever people wanted to talk, listen, and debate. The Massachusetts law prevented none of that.

Try talking or debating with Joe Camel; it doesn’t work. It doesn’t work because Joe Camel and the corporation that spawned him are not people. Corporations never get tired, and they never move along until the money stops or the law steps in. People speak. Corporations do not speak. With the Court’s new corporate speech theory, corporations won a dangerous immunity from the will of the people, while real people and American freedom gained nothing. Indeed, we lost freedom and a tool of self-government.