Why free-speech lawyer Floyd Abrams is fighting for Big Tobacco

He is perhaps the premiere 1st Amendment lawyer, and he has an ardent following among liberals – and now, too, among some conservatives.

I interviewed Floyd Abrams for this week’s “Patt Morrison Asks” column, and where liberals part company with him is over his vigorous endorsement for the Citizens United decision -- not as a campaign issue but as a free speech issue -- and also over the fact that he is sticking up for tobacco companies that don’t want to have to put on their packs the warning labels the government says they must.

Arguing on behalf of the tobacco companies here, he says, is consistent with his 1st Amendment loyalty. “In America, we also protect commercial speech, and having decided to protect commercial speech, it’s entirely appropriate for the [federal court of appeals] to say that you can’t make a cigarette manufacturer basically scream out on its packages, “Don’t buy this product!”

But various laws, I argued to him, including the Pure Food and Drug Act enacted 107 years ago under President Theodore Roosevelt, have regulated and even banned substances.

Sure, Abrams told me, “and indeed there are warnings which are constitutional and have not been challenged for that or other reasons. On one level [tobacco warnings] are the same because the courts are applying across-the-board principles: The government cannot compel speech except in very narrow circumstances.”

And this, Abrams is convinced, isn’t one of them.

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