Hard cases, observed Oliver Wendell Holmes, make bad law.
With all due respect for the eminent jurist, I think he had it backward. Often, it’s good laws that make hard cases.
Take the First Amendment, for example, as fine a law as I know, a law whose absolutes separate us from lesser democracies where free speech must often bend to public policy or political correctness. But the First Amendment has also led to some painful decisions.
Almost exactly a year ago, the Supreme Court ruled that the First Amendment kept the father of a slain soldier from suing protesters, so long as they kept the distance required by law from the funeral. (The notion that the protesters actually disrupted the service was a fiction of the plaintiff’s lawyers looking for public sympathy.)
Or the case the court is hearing this year on a federal law that makes it a crime to lie about military service, including being a Medal of Honor recipient. In oral arguments the other day, some on the court expressed concerns about the slippery slope of letting government define lies, then criminalizing them.
In both cases, I think the First Amendment rightly trumps. If government has the power to jail you for mere untruths, we may as well abandon any notion of speech free of government interference. And if ordinary citizens can sue each other for expression they find offensive, we are left with only the shadow of free speech.
Most people I talk to, though, can’t get past their distaste for the fanatical zealots or lying dirt bags whose rights are at stake, no matter how hard I try to argue those are our rights, too, that I’m sticking up for. Good law, hard cases.
So let it be with my own distaste for tobacco companies, whose product killed my mother, and might well still kill me eventually, even though I finally quit.
A federal judge last week extended an injunction he first imposed late last year against a requirement that tobacco companies start putting graphic images, including dead smokers and diseased lungs, on packages of cancer sticks.
The injunction now lasts until the lawsuit is resolved. Given the size of big tobacco’s legal team, few of us can expect to last that long, whether not we ever smoked.
In his ruling, U.S. District Judge Richard Leon decided nine graphic images approved by the Food and Drug Administration went beyond the legal requirement to convey factual information, and became advocacy, a violation of the free-speech rights of tobacco companies.
“It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking – an objective wholly apart from disseminating purely factual and uncontroversial information,” Leon wrote. The labels, he said, would amount to a “mini-billboard” for the agency’s “obvious anti-smoking agenda.”
I’m not so much bothered by the FDA’s anti-smoking agenda, and in fact I’m glad to learn they have one.
And I’m bothered by the tobacco companies who voluntarily went along with watered-down warning labels in the first place, then used the labels in court to insist they’d done everything they could to warn smokers.
Now that the FDA is insisting on scary new labels that might actually work, the tobacco companies want to whine about their First Amendment rights. Talk about a bunch of lying dirt bags.
But I’m even more bothered by the government’s position that the fight against cancer is a sufficiently “compelling” interest to trump free speech. With that kind of logic, the government could outlaw any criticism of health-care policy or anything else held to be in the national interest.
Personally, I’d like to argue that the First Amendment doesn’t even apply to advertising or product labeling. After all, you don’t have the right to put rat poison in bottles and label it infant formula.
And the first time the Supreme Court heard a “commercial speech” case, back in 1942, it agreed with me, ruling that such communication was entirely outside the protection of the Constitution. But since then the court has gradually created a First Amendment right to commercial speech. First it was flyers for religious services, then advertising about such constitutionally protected activities as birth control or abortion.
Finally the court decided that in a free-enterprise system, the public had a right to receive commercial information. I don’t think that’s the clear command of the First Amendment. And former Chief Justice William Rehnquist used to argue that extending the First Amendment to such commercial matters cheapened the very idea of free speech.
But even the conservatives on the court who agreed with me seem to have given up the idea, so it seems pointless to pine for a simpler constitutional time.
The tobacco case, of course, isn’t so much about free speech as it is freedom from speech, that is a right to maintain silence on subjects you’d rather not talk about.
Admittedly, the Constitution is vague on this point, but I’ve always thrilled to the words of Justice Robert Jackson, who wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
Trump, Justice Jackson. A hard case, maybe. But a good law to be sure.