Tobacco Documents Online

qLegal Backgrounder kS H I N G T O N 1705 N STREET, NiW. • WASHINGTON, D.C. 20036 . 3t1L FOUNDATION ' (202) 857-0240 Vol. 5 No. 27 July 6, 1990 A NEW FREE SPEECH PROBLEM: GOVERNMENT PROPAGANDA AGAINST BUSINESS by William W. Van Alstyne Senator Edward Kennedy plans to bring a bill entitled "The Tobacco Products Control and Education Act of 1989" to the floor of the U.S. Senate. Under the bill, the federal government would begin a national information program which would be authorized to spend $50 million on an advertising campaign against the tobacco industry. The idea of a federal government anti-tobacco advertising campaign has also been proposed by Congressman Henry Waxman. Such a domestic propaganda service raises serious First Amendment concerns. In a number of countries not including our own, the government operates a strong domestic propaganda service by means of which it seeks to direct public opinion along whatever lines the government has decided to be best. Currently, China is perhaps the best known example of such a government. Substantially, the Soviet Union has been famous in the same way. A large number of what were, until recently, Soviet eastern-bloc countries regularly conducted themselves in this fashion. Even now, a majority of Third World governments pursue the same practice. The justification of such large scale, domestically-directed speech campaigns is always the same--to carry such agreement as has been reached within government respecting how people ought to think, or feel, or act about a given subject into a systematic "information" conditioning program such that, indeed, they will think, feel, and act in keeping with the advice and views systematically promoted under government N 0 William W. Van Alstyne is William R. and Thomas S. Perkins Professor of Law at N Duke University School of Law. W The views expressed in this Laou. BwaccRourmax are not to be construed as L11 necessarily reflecting the views of the Washington Legal Foundation or constituting an O attempt to lobby for or against the passage of legislation. ~ Copyright ® 1990 Wathington Legal Foundation Ft>.Wx:,: The Washington Legal Foundation I"WLF") is a 501 JC)(3) tax exempt organization and is America's largest pro-free enterprise public interest law & policy center. This Leqal Backqrounder is one of a series of orioinal papers wrii*rwn Puwi,'9y fnr and nr 1h0dhed

auspices. The government uses its monopoly power to tax to supply itself with funds it then directs into the maintenance of the propaganda services. In turn, it seeks to influence opinion, attitude, and conduct, in each instance seeking to bring about the right attitude in those to whom its messages are unremittingly sent. The United States has generally distanced itself from such countries. Historically, it has denied itself any such elephantine role in the imposition, collection, and spending of taxes to fuel government-directed domestic propaganda targeted to influence people as to what legislation they should support, what persons or groups they should oppose, and how they ought to think. Philosophically, the First Amendment to the Constitution was meant to establish a firm barrier against government's having any systematic power to involve its power to levy taxes for the purpose of establishing or maintaining any domestic propaganda services meant to dominate or direct the marketplace of ideas in the United States. Generally, with a few exceptions--usually during wartime--we have abided by that ordinance of self-restraint. Any proposed expenditures for financing from federal taxes and directing large scale, systematic information campaigns at every level of government openly directed to shape public attitudes and mobilize popular demand for more restrictions on any group or enterprise in the United States should give persons concerned with the First Amendment great difficulty. Once undertaken-as is now in the extreme proposals-we will have embraced a principle of propaganda under government auspices that is fundamentally wrong. It is not merely a number of the particular provisions as such of the pending legislation that are inappropriate (though I do believe they are inappropriate). Rather, it is the example the legislation provides--an example contrary to the First Amendment principle that government propaganda systems are not to be constructed, financed, and maintained in the United States. The use of government power to direct tax-collected funds for direct, domestically- directed internal propaganda against some segment of American enterprise strikes me as new and enormously disturbing, whatever the enterprise as such. The current use of earmarked taxes in California to finance govemment-sponsored, professionally-crafted anti- industry TV spots that use professional actors to portray corporate boards as manipulative killers, i.e., profiteers plotting to replace cigarette-addicted persons who foreseeably die from cigarette smoking with new cohorts of victims, is a highly dramatic example of what N may be done on a far larger scale pursuant to legislation now pending. In the immediate ~ sense, no doubt there is much seemingly to applaud in the California example; i.e., if one N agrees with the message, one naturally wants to see it broadcast. One desires to have CJ others agree with the view one already has formed. One is exhilarated at last to see W 06 government on one's side, wading in, "educating" the public, bringing it to its senses, so to Ln speak. O Copyright ® 1990 Washington Legal Foundation 2 To receive information about previous Washington Legal Foundation publications contact Alan M. Slobodin; President, Legal Studies Division. Material! concerning WLFs other legal activities may be obtained by contacting Daniel J. Popeo, Chairman. I

There is in this new endeavor, however, no distinction that I can see from the operation of any other kind of government domestic propaganda bureau dedicated to generating public antagonism and hatred for a given industry, or for a given class of persons, so long only as the legislature directing the "information" service concludes that targeting what it deems to be the public harm posed by such industry or claw of persons is a good thing. Capitalists as a class are thus treated this way in the propaganda ubiquitous under government regimes persuaded by Marx and others that capitalism is itself iniquitous, exploitative, and evil. A legislature in a state hostile to labor unions, on the other hand, may feel it to be more in the public interest in spending public monies to "educate" people on the harms, costs, and abuses of such unions, and how open shops are more conducive to the public welfare than a closed shop, union shop, or even agency-fee shop may be. I would personally believe such a publicly-financed campaign in this state to be both improper and unconstitutional, and would assuredly oppose it in every appropriate way. Nonetheless, in principle, it is but an application of the technique and reasoning of the legislation. There is nothing in constitutional principle to distinguish the two. I know of no distinction to draw if a different legislature, or a city council, were to appropriate tax funds to pay professional advertisers to prepare a "campaign" meant to influence public thinking on "purveyors of obscenity," so to generate additional hostility (and calls for additional regulation) of those exhibiting "filth" in their art galleries and theaters, or "trash" in their book stores and kiosks. Each of these government-directed domestic propaganda agendas will also stand on exactly the same sort of intellectual footing as that implicit in the bill: namely, that the government is merely drawing attention to what the legislature has concluded to be harms people should know about, and thus feels it appropriate to devote its powers to tax and to spend to influence public attitudes according to what it deems best. By such reasonings, we drift to the use of the monopoly power of government to tax and to spend to propagate such views as govem- ment decides it wants its citizens to hold and to act on, as so many other deeply-resented governments elsewhere have so frequently done. i Copyright ® 1990 Washington Legal Foundation 3 ~9:-_1.p:

WLF'S LEGAL STUDIES DIVISIt7N ~f. ~L~gal, Studies : kJivision.n of the Washington Legal °Fouudahon- (WLF) is dedicated , , to exp~c~g .~h~~,pxc~-ft~ e~lt~t" isc legal idea ba~s~` ~t ~do~cs thts'by eonducting original ce~c`h and °.,wxiti~g; di~U~g; a diverse array off pt~blicatibn pi- utxs''to busintessmen, acAdemYo . ' and 40Viert~tt cials; briefing the' media;' o~izuig key policy sessions; and spowrmg occasioaal. legal `po!icx :conf.erences,.and forutns:- Washington 4s .fu~u, 9f ~ pQJic}r centers of one - stripe or -another But WLF's Legal Studies Division bas, deliberately adopted a unique approach' tha-sets"it apart from other orgarnizations. First, ' th+~ i'yiys j4n dtlals.. ahnost exclusively with legal policy qu[estions as they relate to the busittesa/corpow8 coxnmutaity and the economic well-being of the ` American free enterprise system. Second, its publications focus on a highly select`legal policy.4nakiiig audience. Legal Studies aggressively markets its publications to: f~deral- and st~e judges and their clerks; members of the United States Congress and their legal staffs;: govexinnent attorneys; business leaders and corporate general counsel; law school 'pi~ofessors' and` s`tudents; influential legal journalists; and major priat. and media commentators. . : Third, Legal Studies possesses the flexibilityy and. credibility to involve talented individuals from all walks of life-from law' students 'atid professoi`s to si'tting` federal judges and senior partners in established law firms--in its woik: ' The key to WLF's Legal $~fudtes '.pubhcations -,'~s the{ ;productioii'' of a variety of readable and challenging coi~nen t~ies.~ with a c~st~,nctfy common=sen~e viewpoint rarely reflected in acad4mic law reviews or spc±eiahze~d ~eg~ii tr"aiie }ouinals; The styles vary from concise Legal Ba~kgrou ,nd&s on emergmg issues to. m dept~ Working Papers, law review- length monograplis, and occasional books. CopyrigM 0 1990 wa"gton Legai Foundation 4

1. zoz39i5os2