The FDA’s Tobacco Regulations: The Harm in Banning Harmful Speech

One March 19, 2010 the FDA issued a broad set of regulations directly restricting tobacco companies’ ability to advertise and promote their products. The regulations were issued following President Obama’s signing of the Family Smoking Prevention and Tobacco Control Act last June, which granted the FDA extensive authority to create such regulations.  The landmark legislation negates the Supreme Court’s 2000 ruling in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, which held that, despite the dangers inherent in tobacco use, the FDA did not have the authority to promulgate regulations relating to the use or advertising of tobacco products.

Should we be concerned with whether a tobacco company’s free speech rights are being violated in an attempt to protect individuals, particularly children, from the harm of smoking? Although it is easy to see the public health arguments that are behind these speech restrictions, it requires a more in-depth look in order to see the dangers that such expansive regulations impose on freedom of expression.

Although it does have economic incentives, commercial speech is, nonetheless, speech. The main argument in support of the extensive restrictions on tobacco advertising is that such advertising reaches minors. However, in ensuring that this speech does not reach minors, the government is simultaneously banning speech that is largely intended for adults.

Free speech surrendered: Corpus Christi at Tarleton State

The cancellation of Terrence McNally’s play Corpus Christi by Tarleton State University, under pressure from the Catholic League for Religious and Civil Rights and others, is an affront to academic freedom and First Amendment principles of free speech.

The play was denounced by Tarleton’s president, Dominic Dottavio, who called it “crude and irreverent.”  Texas Lieutenant Governor David Dewhurst opined that “no one should have the right to use government funds or institutions to portray acts that are morally reprehensible to the vast majority of Americans.”

Even a play that depicts conduct considered “morally reprehensible” or “irreverent” by some is fully protected under the First Amendment, which prohibits the enforcement of any specific view of religion or morality.  It is deeply troubling that people in leadership roles – a university president and high elected official – should display such disregard for, if not ignorance of, basic constitutional principles.

The University claims that the play’s cancellation was due to concerns over “safety and security” because of threatening emails.  Even if that were the real reason for the cancellation, it is hardly a legitimate excuse.  By giving in to threats of violence, the University only encourages them.  Our constitution envisions reasoned discourse as the way to resolve disputes, not threats designed to intimidate and silence discussion and debate.

Alito takes (another) stand on student speech

“[W]hen a public school purports to allow students to express themselves, it must respect the students’ free speech rights,” Justice Alito said in an opinion this week. His words came in a powerful dissent to the Supreme Court’s decision not to hear a case involving students’ musical choice for the graduation ceremony. Justice Alito, the conservative judge who took his seat on the Supreme Court in 2006, may seem to be an unlikely advocate for student speech. However, this is not the first time he has argued for freedom of expression for public school students.

Monday’s dissent came after the Court refused to review a decision by the Ninth Circuit Court of Appeals that upheld a school district’s decision not to allow a high school wind ensemble to play Ave Maria (without the lyrics) at the school’s graduation ceremony. The wind ensemble had chosen the piece because they believed it would showcase their instrumental talent, but the school thought the piece would upset attendees “because the title and meaning of the piece had religious connotations.” The Ninth Circuit held that the school’s action had not violated the free speech rights of the students because “it is reasonable for a school official to prohibit the performance of an obviously religious piece . . . when there is a captive audience at a graduation ceremony, which spans a finite amount of time.”

Join us on Saturday to view the winning YFEN films!

On March 27 from 1-4 at the New York Film Academy, NCAC partners with Kahlil Almustafa, Emily Kunstler, Reel Works, and Global Action Project for an afternoon of making connections and exploring the power of youth-made media.

Stop by to view the winning films from our annual Film Contest (Free Speech in School – Does it Exist?)!  Hip hop poet Kahlil Almustafa will perform his poetry as part of the celebration, and esteemed filmmaker and Film Contest Judge Emily Kunstler will lead a conversation with the filmmakers following the screening.

The Details:

Where: New York Film Academy, screening room, 100 East 17th Street, near Union Square (Take the N,R,Q,W,4,5,6,L to Union Square)

When: Saturday, March 27, 1:00 – 4:00 PM

Questions: (212) 807-6222, ext. 19 or yfen@ncac.org

Tickets: Free and open to the public

Hope to see you there!

A Textbook Case of Censorship

Last Friday the Texas Board of Education voted along party lines to approve a new school curriculum that will, in effect, rewrite history.

The new social studies curriculum will address what one board member referred to as a “skewed” history with a “liberal bias.” Although the proposed changes may individually seem relatively minor, they are not innocuous. For example, the proposed curriculum would remove Thomas Jefferson, known for his support for separation of church and state,  from a list of influential thinkers, and to include religious figures like Thomas Acquinas and John Calvin. Cumulatively, the effects of the proposed alterations would amount to a significant change in the overall story presented to students.

Board members who voted for the revised curriculum claim they are correcting liberal bias, and perhaps there is some validity to their position. The real problem is that the decision about what to include in the required curriculum should be based on the consensus view of trained historians and educators, not on the personal, religious, and political views of individual board members.

Other changes include amendments that question the concept of separation of church and state, place more emphasis on adverse “unintended consequences” of civil rights efforts such as affirmative action and Title IX, and require the teaching of evidence both for and against evolution.

Update on student speech in Pennsylvania

In February, the Third Circuit Court of Appeals issued contradictory opinions involving online student speech. The losing sides of both Layshock and Blue Mountain are asking the Court to rehear their cases before a full court. Both parties agree that the two opinions, issued the same day, seemingly contradict each other. Even the winning parties agree that the conflicting rulings will confuse both students and administrators on what is and what is not protected speech.

The Court needs to send a clear message that students should not be punished by school officials for their off campus speech. If the Court accepts the parties’ petition, it will rehear the cases before all the judges of the court and issue a new opinion. Stay tuned for more to come…

Read more about the cases here.

Youth Voices Uncensored – March 27th

Join us at the New York Film Academy for our second Youth Voices Uncensored event on March 27th from 1-4pm for an afternoon of youth films, fun prizes, and great performances! Meet the winners of the 6th Annual YFEN film contest and make connections while exploring the power of youth-media. It’s FREE and open to the public!

Who: National Coalition Against Censorship partners with Kahlil Almustafa, Reel Works, Global Action Project and the New York Film Academy.

What: NCAC screens winning films from the Youth Free Expression Network’s film contest “Free Speech in schools (Does it Exist?)”, and several youth films from Reel Works and Global Action Project. Hip Hop poet Kahlil Almustafa performs his poetry as part of the celebration. A conversation with the filmmakers follows the screening.

Where: New York Film Academy, screening room, 100 East 17th Street, near Union Square (Take the N,R,Q,W,4,5,6,L to Union Square)

When: Saturday, March 27, 1:00 – 4:00 PM

Reservations: (212) 807-6222, ext. 19 or yfen@ncac.org

Tickets: Free and open to the public

Check out last year’s event!

NCAC joins letter asking Congress for hearings on the unlawful destruction of DOJ emails

Concerned because the deletion of government emails has hampered investigations into possible official wrong-doing, NCAC joins OpenTheGovernment.org in requesting Congress to act to insure the preservation of government records.

“Concerned with government openness and accountability,” the letter reads, “[the undersigned organizations] respectfully request … hearings on the apparent destruction of e-mails in the Department of Justice to determine how the e-mails could be missing despite the requirements of the Federal Records Act (FRA), and if the Act needs further strengthening.”

“The disappearance of emails that are required to be saved under current law raises serious concerns about government transparency and whether information needed to hold the government accountable is being destroyed before officials, Congress and the public can have access to it.”

NCAC respectfully urges Congress to hold hearings to examine the issue, and to consider the need for reforms to the FRA.

Click here to read the letter.

Internet freedom under threat

The United States has a tradition of generally broad protection of freedom of speech, which has persisted in the Internet age.  Thus American courts have struck down most laws attempting to limit content on the Internet, including provisions of the Communications Decency Act restricting indecent speech on the Internet (in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)) and sections of the Child Online Protection Act, aimed at protecting children from material defined as harmful to them (in ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008), cert. denied, 129 Sup. Ct. 1032 (2009)).

But other nations do not necessarily share the same expansive view of freedom of speech, and place restrictions on what their residents can post or access online.  For example, China places restrictions on sexual content and content regarding political dissidents (as we’ve discussed on this blog before here, here and here).  Several countries, including Germany and France, ban the sale of Nazi memorabilia. Australia and France are each now considering mandatory Internet filtering laws. And many countries have more draconian libel and privacy laws than we do in the United States. [Of course, there are Internet restrictions in the United States as well, as NCAC has documented.]

Often countries impose their restrictions by using filters that limit access to offending websites and material from beyond the country’s borders. Others require that search engines tailor their results to restrict access to forbidden content: Microsoft has implemented such restrictions and so has Google, though Google has recently spoken out against limitations on its services in some places, while agreeing to them in others.  And some websites take action on their own, restricting access to particular material in particular countries for reasons such as restrictions on pre-trial publicity.

Bike for Free Speech: a Two Man Trans-America Bicycle Ride Benefits NCAC

Matthew Sottile and Dawson Burke of Connecticut will “Bike for Progress.”  On April 5, 2010, the two high school friends will begin their trans-America journey, cycling from Baltimore, Maryland to Canon Beach, Oregon in support of free speech.  All pledges and sponsorship for “Bike for Progress” will be generously donated to NCAC.

The cross-country trip has been in the works since Study Hall, their sophomore year in high school, but it was Matthew Sottile’s recent idea to ride for our cause:

I first learned about NCAC several years ago through researching the annual Banned Books Week event.  I decided that I wanted to help raise money for NCAC because I believe that the preservation of ideas is of utmost importance, and that everyone who lives in a free country should be aware and willing to protect that.

NCAC is thrilled to have the support of “Bike for Progress.” You can learn more about the duo and follow their cross-country ride at Bike for Progress blog.

You too can support NCAC and “Bike for Progress” with a donation. Click on the donation button to give $21 (1/2 a cent per mile at 4200 miles) or any amount you choose.