More Speech, Not Enforced Silence: Tobacco Advertising Regulations, Counter-Marketing Campaigns and the Government’s Interest in Protecting Children’s Health

Abstract

The U.S. Supreme Court’s decision in Lorillard Tobacco Co. v. Reilly, that the significant interest in protecting children’s health would not allow the government to overly burden the flow of communication to adults about tobacco products, has left public health officials with little room to craft tobacco advertising restrictions that are both demonstrably effective and constitutional. This article focuses on social scientific research in the field of health communication, and legal doctrines of counterspeech and governmental speech.It specifically posits how a national counter-marketing tobacco prevention campaign targeting youth and paid with compulsory fees, or a tax paid by tobacco companies, would advance the government’s interest in preventing youth smoking while still upholding First Amendment ideals and allowing adults to continue to receive information about legal products. However, the article also concludes that not all counter-marketing campaigns are created equal, and that campaigns should be well-funded and focus on using marketing techniques proven to be effective.

Keywords: First Amendment, Tobacco advertising regulations, counter-speech, governtment speech