NYT 1986: Smoking, Smoke and Free Speech

"The remedy is that anyone who regards [R.J. Reynolds'] arguments as false, which we do, remains equally free to say so."

We present to you an editorial from 1986 in which the New York Times defends the free speech rights of . . . Big Tobacco.

In this piece, the Times editorial board chronicles a fight between the Federal Trade Commission and R.J. Reynolds over an advertisement the company released questioning the scientific consensus on the dangers of tobacco. While the Times finds the company’s argument faulty and misleading, it nevertheless argues that it has the right to make it.

What’s crucial here is that the Times previously trusted that open discourse would allow citizens to make informed decisions for themselves and that counterspeech was the best remedy for false speech.

Smoking, Smoke and Free Speech

Though smoking is dangerous, the tobacco industry would like to argue otherwise. Can government stop cigarette manufacturers from making their arguments in public? The staff of the Federal Trade Commission contends that the companies may not comment on smoking and health without undergoing F.T.C. review for possible false advertising.

Now an administrative law judge rules that such comment is free speech, immune from regulation. The judge, Montgomery Hyun, makes an impeccable constitutional argument and his opinion deserves to be sustained by the commission.

At issue is an advertisement from the R.J. Reynolds tobacco company in the form of an opinion article, published last year in this and other newspapers. The company argued that a recent National Institutes of Health study cast doubt on the now-conventional wisdom that cigarettes kill. ''The controversy over smoking and health remains an open one,'' the ad concluded.

If the argument had been made in a typical product advertisement, the F.T.C.'s authority to condemn it would have been clear. Reynolds distorted the N.I.H. study, erroneously implying that the agency had tested and questioned the link between smoking and heart disease. But this was not an ad pushing a product; it was an ad pushing a point of view. The Trade Commission has the power to require the warning labels on cigarette packages and product advertisements. But it may not censor or forbid noncommercial speech. Even if Congress were to outlaw tobacco or ban advertising for it, Reynolds would remain free to make arguments—even arguments some would consider false—addressed to health and public policy. The remedy is that anyone who regards the arguments as false, which we do, remains equally free to say so.

Why Reynolds would want to exercise its free speech rights in this manner is unclear. Its argument contradicts the label warnings about the dangers of smoking, and those warnings in turn have helped insulate tobacco companies from liability in civil lawsuits. Lawyers for plaintiffs in wrongful-death actions could well read the editorial advertisement back to the companies—in court. But the First Amendment guarantees the right to speak, even if foolishly and even if incorrectly.