ABA Refuses to Back Ban on Cigarette Advertising

The American Bar Assn. on Monday refused to support a proposed prohibition on cigarette advertising in magazines, newspapers and on billboards, giving the tobacco companies a boost in their attempt to head off congressional passage of such a ban.

The proposed ban gained steam last July, when the Supreme Court, in a ruling that prohibited the advertising of legal gambling in Puerto Rico, suggested that government may ban the promotion of “products and activities deemed harmful.”

Officers of the American Medical Assn., which supports such a ban, came here to enlist the backing of the ABA, which represents 330,000 lawyers and judges nationwide.

‘Uniquely Harmful’

Cigarettes are “uniquely harmful” and result in the death of nearly 1,000 Americans a day, Dr. Robert E. McAfee of the AMA told the delegates. “The toll from cigarettes alone is greater than the annual combined sum of all deaths caused by heroin, cocaine, alcohol, fire, automobiles, homicide, suicide and AIDS,” McAfee said.

The tobacco industry spends $2 billion a year to promote cigarettes with the goal of addicting young people to their product, he said.

Broadcast ads for cigarettes were banned 15 years ago, and Rep. Mike Synar (D-Okla.) has sponsored a bill in the House to extend that prohibition to all forms of advertising.

But attorneys took to the floor to argue that the Constitution does not permit a government ban on “truthful speech about a lawful product.”

“Censorship is contagious and habit-forming,” said Floyd Abrams, a prominent New York attorney who represents newspapers and the television networks. The First Amendment protects “even speech we disapprove of or disdain. In this country, we don’t strike out at speech to deal with social problems. We try to persuade people . . . with more speech,” he said.

Seen as Unacceptable

Although health leaders could label cigarettes a uniquely dangerous product, Abrams said, lawyers and courts would not accept such a distinction.

“We know how we work. There would be no way to limit that precedent,” said Abrams, contending that the promotion of other potentially harmful products would soon be threatened.

“Why not ask Congress to prohibit the advertising of pork, beef, eggs and some cooking oils?” attorney Joe Stamper of Antlers, Okla., asked, because high cholesterol foods have been linked to heart disease. And, because alcohol is blamed for both disease and auto accidents, “shouldn’t the resolution apply to Bud and Coors?” Stamper added.

In a letter distributed to the delegates, Assistant Atty. Gen. Charles Cooper, who heads the Office of Legal Counsel in the Justice Department, also questioned whether such a ban is constitutional.

“As a matter of policy,” Cooper added, “the Administration is not convinced that even a well-founded dislike for a lawful product constitutes permission to deny others information about it.”

Disagreement Voiced

Some lawyers disagreed, however, noting that the Supreme Court has given only limited protection to “commercial speech” and has never decreed “a constitutional right to advertise harmful products,” Columbia University law professor Henry Monaghan said.