NOW that the surgeon general has declared tobacco an addictive drug (alongside cocaine and heroin), but with vastly more victims, why hasn't the question of cigarette advertising gained more attention? It is not hyperbole to term those responsible for such ads ``the biggest drug pushers in the United States.'' And since Vice-President George Bush has called for the death penalty for drug pushers, should tobacco executives begin fearing for their lives?
They needn't, of course, despite the inexorable logic involved. Nor will newspaper and magazine publishers who continue to carry such ads regard themselves as accomplices to a species of crime, despite the inescapable logic of that relationship.
Apparently the reasons the cigarette issue is muffled are twofold: the massive advertising revenue involved and the possible First Amendment implications.
Since profits gained at the expense of human tragedy are not morally defensible, what about the constitutional issue? Let's examine the First Amendment from a perspective somewhat different from the one law schools employ but one that the Founding Fathers would fully endorse.
The First Amendment declares that Congress shall make no law abridging freedom of speech and press. But this nation has never taken that amendment literally. More than a score of limitations on speech and press can be cited - forbidding incitement to violence, fraudulent ads, divulging military secrets, perjury, obscenity, plagiarism, picketing in a context of violence, certain partisan activities by civil servants, libel, promoting religious doctrines in public schools, threatening the president, and many others.
Why do we permit these exceptions to ``no law''? Because the First Amendment does not repeal the dictates of common sense.
We are free to make reasonable exceptions to ``no law,'' and we make them without much guidance from the First Amendment. ``No law'' tells us nothing about what exceptions are reasonable and which are not. We may stare at those words, meditate upon them for hours on end, take college courses on free speech, or even sit on the Supreme Court, but the leap from ``no law'' to what is a ``reasonable exception'' cannot be logically made. Lawyers and scholars may pretend, when deciding these issues, that they are divining the true meaning of the First Amendment, but it is all an elaborate game of make-believe, built upon a structure of make-believe precedents. The gulf between ``no law'' and ``reasonable exception'' is unbridgeable by the process of logic.
Contrary to widely held opinion, then, most of our First Amendment issues aren't soluble by legalistic inquiries; they are questions of prudence, judgment, and wisdom.
What criteria have we used in deciding what exceptions to free speech are reasonable? First, we protect heretical views, however hateful they may be, which deal with political, economic, social, and religious issues. This is the sacrosanct area in which the First Amendment's flat prohibition is indeed absolute. Democratic theory requires it; public opinion supports it.
Thus, tobacco companies enjoy constitutional protection if they make some attempt at reasoned arguments on behalf of cigarette ads. But the ads themselves, being commercial instruments outside the area of democratic discourse, cannot claim constitutional protection. In fact, they come close to being downright fraudulent, if that term is used broadly.
Second, exceptions to ``no law'' in marginal areas of expression must be in the public interest and must be able to survive the crucible of free, full, and open debate. Those are the only criteria we use and the only ones we need.
A prohibition of cigarette ads (such as Canada is planning) would fit comfortably into the excepted categories of expression already cited. Even if less constitutional clarity were involved, it flouts the most elementary common sense to pretend that the First Amendment shields outrages such as advertising that encourages the consumption of a product which kills more than 300,000 people a year. Would even the staunchest defenders of advertising freedom (license?) contend that the legalization of cocaine, heroin, and marijuana (which many bitter opponents of these drugs sorrowfully recommend) would automatically legalize the seductive advertising of those drugs?
The remedy is at hand. Let Congress pass a law phrased as follows: ``It shall be illegal to advertise in interstate commerce any product intended for human consumption which, as ordinarily consumed, has been declared by the surgeon general to have significant carcinogenic effects.''
And whether Congress acts or not, newspaper and magazine publishers should think long and hard about their collaboration with drug pushers. Even Mr. Bush, if he became president, didn't demand the death penalty for them.
Reo M. Christenson is a professor of political science at Miami University in Oxford, Ohio.